Chapter Two

JUSTIFYING
CIRCUMSTANCES
AND CIRCUMSTANCES WHICH EXEMPT FROM
CRIMINAL LIABILITY

The circumstances affecting criminal liability are:

I. circumstances (Art.

II. Exempting circumstances (Art. 12), and other absolutory causes

(Arts. 20; 124, last 280, last 332; 344; etc.)
III. Mitigating circumstances (Art. 13)
IV. Aggravating circumstances (Art. 14)
V. Alternative circumstances (Art. 15)

Imputability, defined.
Imputability is the quality by which an act may be ascribed to a
person as its author or owner. It implies that the act committed has
been freely and consciously done and may, therefore, be put down to
the doer as his very own. (Albert)

Responsibility, defined.
Responsibility is the obligation of suffering the consequences of
crime. It is the obligation of taking the penal and civil consequences
of the crime. (Albert)

Imputability, distinguished from responsibility.

While imputability implies that may be imputed to
a person, responsibility implies that person must take the
consequence of such a deed. (Albert)

Meaning of "guilt."
Guilt is an element of responsibility, for a man cannot be made to
answer for the consequences of a crime unless he is guilty. (Albert)

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense

I. . Justifyin g Circumstances .
1. Definition

Justifying circumstances are those where the act of

a person is said to be in accordance with law, so that such
person is deemed not to have transgressed the law and is
free from both criminal and civil liability.
There is no civil liability, except in par. 4 of Art.
where the civil liability is borne by the persons benefited
by the act.

2. Basis justifying circumstances.

The law recognizes the non-existence of a crime by

expressly stating in the opening sentence of Article that
the persons therein mentioned not incur any criminal
liability."

Art. 11 . Justifying — Th e f o l l o w i n g do no t
i n c u r an y c r i m i n a l l i ab i l i t y:
A n y o n e w h o act s i n d e f e n s e o f hi s p e r s o n o r r ig ht s
, p r o v i d e d tha t th e f o l l o w i n g c i r c u m s t a n c e s c o n c u r :
First. U n l a w f u l a g g r e s s i o n ;
Second. R e a s o n a b l e n e c e s s i t y o f th e m e a n s e m p l o y e d t o
p r e v e n t o r rep e l it;
Third. Lac k of s uf f ic ie nt p r o v o c a t i o n on th e par t of th e
p e r s o n d e f e n d i n g hi msel f.
2. A ny o n e wh o acts in d ef e n s e of th e p e rs o n or rights of
his s pous e, a s c e n d a nt s , d e s c e n d a n t s , or leg it ima t e , natural, or
adop t e d b ro t he r s or sist ers, or of hi s r ela t iv e s by affinity in the
same deg re e s, an d thos e by c o n s a n g u i n i t y w it h i n the fourth civil
degree, p r o v i de d that th e firs t an d s e co n d r e quis it es pr es cr ibed
nex t p r e c e d i n g c i r c u m s t a n c e are present , an d the further
requisite, in cas e th e p r o v o c a t i o n wa s give n by th e pe r so n at•
tacked, that th e on e m a k i n g d ef en se ha d n o part therein.
2. A n y o n e wh o act s i n d e f e n s e o f th e p e r s o n o r rig h t s
of a s t r a ng e r , p r o v i d e d tha t th e first an d s e c o n d r e q u i s i t e s

145
 Art. 11 JUSTIFYING CIRCUMSTANCES

m e n t i o n e d in th e first c i r c u m s t a n c e of thi s ar ticle are p r e s e n t

an d that th e p e r s o n d e f e n d i n g b e no t i n d u c e d b y r e v e n g e ,
r e s e n t m e n t o r ot h e r evil m o t i v e .
3 . An y p e r s o n w ho , i n orde r t o a v o i d a n evil o r injury,
doe s a n ac t w h i c h c a u s e s d a m a g e t o a n o t h e r , p r o v i d e d tha t
th e f o l l o w i n g r e q u i s i t e s ar e p r e s e n t :
First. Tha t th e evil s o u g h t to be a v o i d e d a c t ua ll y e x ist s ;
Second. Tha t th e inj ur y f e a r e d b e g r e a t e r tha n tha t d on e
to a vo i d it.
Third. Tha t t h er e b e n o o t h e r p r a c t i c a l an d les s ha r m f u l
m e a n s o f p r e v e n t i n g it.
4 . An y p e r s o n wh o act s i n th e f ulf illme nt o f a dut y o r
in th e l awfu l e x e r c i s e of a r i g h t or office.
5 . An y p e r s o n wh o act s i n o b e d i e n c e t o a n orde r i s s u e d
by a s u p e r i o r for som e l aw fu l p u r p o s e .

There is no crime committed, the act being justified.

In stating that the persons mentioned therein "do not incur any
criminal liability," Article recognizes the acts of such persons as
justified. Such persons are not criminals, as there is no crime com•
mitted.

Burden of proof.
The circumstances mentioned in Art. are matters of defense
and it is incumbent upon the accused, in order to avoid criminal li•
ability, to prove the justifying circumstance claimed by him to the
satisfaction of the court.

Self-defense.
Well-entrenched is the rule that where the accused invokes self-
defense, it is incumbent upon him to prove by clear and convincing
evidence that he indeed acted in defense of himself. He must rely
on the strength of his own evidence and not on the weakness of the
prosecution. For, even if the prosecution evidence is weak, it could
not be disbelieved after the accused himself had admitted the killing.

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

(People vs. Sazon, G.R. No. 89684, Sept. SCRA

People vs. Rey, G.R. No. 80089 , April 13, 1989, 172 SCRA 149,
156;
People vs. 75 Phil. 772, 777)
Self-defense, mus t be proved with certainty by sufficient,
satisfactory and convincing evidence that excludes any vestige of
criminal aggression on the part of the person invoking it and it cannot
be justifiably entertained where it is not only uncorroborated by any
separate competent evidence but, in itself, is extremely doubtful.
(People vs. Mercado, No. L-33492, March 30, 1988, 159 SCRA 453 ,
458; People vs. Jr., No. March 28, 1980, 96
SCRA 573 , 584)

In self-defense, the burden of proof rests upon the accused. His

duty is to establish self-defense by clear and convincing evidence,
otherwise, conviction would follow from his admission that he killed
the victim. He must rely on the strength of his own evidence and not
on the weakness of that for the prosecution. (People vs. Clemente,
G.R. No. L-23463, September 28, 1967, 21 SCRA 261 ; People vs.
Talaboc, Jr., G.R. No. L-25004, October SCRA 87; People
vs. G.R. No. January SCRA 245; People
vs. Montejo, No. L-68857, Nov. 21 , 1988, 167 SCRA 506, 512; People
vs. Corecor, No. March 21 , 1988, 159 SCRA 84, 87)

The plea of self-defense cannot be justifiably entertained where it

is not only uncorroborated by any separate competent evidence but in
itself is extremely doubtful. (People vs. Flores, L-24526, February 29,
SCRA 342; Ebajan vs. Court of Appeals, G.R. Nos. 77930-31,
Feb. 9, 1989, 170 SCRA 178, 189; People vs. Orongan, No.
Dec. SCRA 586, 597-598; People vs. Mendoza, [CA] 52
O.G. 6233)

Par. 1. - SELF-DEFENSE.
Anyone who acts in defense his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the
147
person defending himself.

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

Rights included in self-defense.

Self-defense includes not only the defense of the person or body
of the one assaulted but also that of his rights, that is, those rights
the enjoyment of which is protected by law.
from the right to life on which rests the legitimate defense
of our person, we have the right to property acquired by us, and the
right to honor which is not the least prized of man's patrimony."
Viada, 172, 173, 5th edition)

Reason why penal law makes self-defense lawful.

Because it would be quite impossible for the State in all cases to
prevent aggression upon its citizens (and even foreigners, of course)
and offer protection to the person unjustly attacked. On the other
hand, it cannot be conceived that a person should succumb to an
unlawful aggression without offering any resistance. (Guevara)
The law on self-defense embodied in any penal system in the
civilized world finds justification in man's natural instinct to protect,
repel, and save his person or rights from impending danger or peril; it
is based on that impulse of self-preservation born to man and part of
his nature as a human being. To the Classicists in penal law, lawful
defense is grounded on the impossibility on the part of the State to
avoid a present unjust aggression and protect a person unlawfully
attacked, and therefore it is inconceivable for the State to require that
the innocent succumb to an unlawful aggression without resistance,
while to the Positivists, lawful defense is an exercise of a right, an act
of social justice done to repel the attack of an aggression.
vs. Court of Appeals, Nos. Aug. 6, 1979, 92 SCRA 567,
571-572; People vs. Boholst-Caballero, No. L-23249, Nov. 25, 1974,
61 SCRA 180, 185)

Requisites of self-defense.
There are three requisites to prove the claim of self-defense as
stated in paragraph 1 of Article of the Revised Penal Code, namely:
unlawful aggression; (2) reasonable necessity of the means em•
ployed to prevent or repel it; and (3) lack of sufficient provocation on
the part of the person defending himself. (People vs. Uribe, G.R. Nos.
76493-94, Feb. 182 SCRA 624, 630-631; People vs. Delgado,
G.R. No. 79672, Feb. 15, 1990, 182 SCRA 343, 349-350; People vs.
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

Batas, G.R. Nos. 84277-78, Aug. 2, 1989, 176 SCRA 46, People
vs. G.R. No. 82113 , July SCRA 116; People
vs. Bayocot, G.R. No. 55285 , June 28, 1989, 174 SCRA 285, 291)

First requisite of self-defense.

The first requisite of self-defense is that there be unlawful
aggressi on on the part of the person injured or killed by the
accused.

Unlawful aggression is an indispensable requisite.

It is a statutory and doctrinal requirement that for the justifying
circumstance of self-defense, the presence of unlawful aggression is
a condition sine qua non. There can be no self-defense, complete or
incomplete, unless the victim has committed an unlawful aggression
against the person defending himself. (People vs. Sazon, G.R. No.
89684 , Sept. 18, 189 SCRA 700, 704; People vs. Bayocot, G.R.
No. 55285, June citing Ortega vs.
ganbayan, G.R. No. 57664 , Feb. 8, 1989, 170 SCRA 38; Andres vs.
CA, No. L-48957, June SCRA 268; People vs.
No. 72936, June 18, 1987, 151 SCRA 170; People vs. 58
Phil. 586)

For the right of defense to exist, it is necessary that we be

assaulted or that we be attacked, or at least that we be threatened
with an attack in an immediate and i mmin en t manner, as, for
example, brandishing a knife with which to stab us or pointing a gun
to discharge against us. (1 Viada, 5 edicion, 173, p. 3275)
If there is no unlawful aggression, there is nothing to prevent
or repel. The second requisite of defense will have no basis.
In the case of People vs. 61 Phil. 786, this rule was
explained, as follows:
act of mortally wounding the victim has not been
preceded by aggression on the part of the latter. There is
no occasion to speak of necessity of the means
or of on the part of one
invoking legitimate self-defense, because both circumstances
presuppose unlawful aggression which was not present in the
instant case." (p. 788)

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

Aggression must be unlawful.

The requisite of defense says that the aggression must be
unlawful.
There are two kinds of aggression: (1) lawful, and (2) unlaw•
ful.
The fulfillment of a duty or the exercise of a right in a more or
less violent manner is an aggression, but it is lawful.
Thus, the act of a chief of police who used violence by throwing
stones at the accused when the latter was running away from him to
elude arrest for a crime committed in his presence, is not unlawful
aggression, it appearing that the purpose of the peace officer was to
capture the accused and place him under arrest. (People vs.
60 Phil. 796, 805)

So also, is the act of a policeman who, after firing five cautionary

shots into the air, aimed directly at the escaping detainee when he
had already reasons to fear that the latter would be able to elude
him and his pursuing companions. (Valcorza vs. People, No.
Oct. 31 , 1969, 30 SCRA 143, 149; See also vs. Court
of
Appeals, G.R. No. 51206, Aug. 25, 1989, 176 SCRA 699, 708)

Article 249 of the new Civil Code provides that "(t)he owner or
lawful possessor of a thing has the right to exclude any person from
the enjoyment and disposal thereof. For this purpose, he may use
such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property."
Thus, under the new Civil Code a person may use force or
violence to protect his property; and if in protecting his property such
person uses force to prevent its being taken by another, the owner
of the property is not an unlawful aggressor, because he is merely
exercising a right.

Paramour surprised in the act of adultery cannot invoke

self- defense if he killed the offended husband who was
assaulting him.
In a case, the Supreme Court, in denying the paramour's plea

150
of self-defense, said: "(E)ven though it were true and even if the

150
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

deceased did succeed in entering the room in which the accused

(the paramour and the wife of the deceased) were lying, and did
immediately thereupon assault (the paramour), giving him several
blows with the bolo which (the deceased) carried, that assault was
natural and lawful, for the reason that it was made by a deceived
and offended husband in order to defend his honor and rights by
punishing the offender of his honor, and if he had killed his wife
and (the paramour), he would have exercised a lawful right and
such acts would have fallen within the sanction of Article 423 (now
Art. 247) of the Penal Code The (paramour) well knew that by
maintaining unlawful relations with (the deceased's wife), he was
performing an unlawful and criminal act and exposed himself to the
vengeance of the offended husband, and that, by their meeting each
other in the said house, he was running the danger of the latter's
surprising them there, as in fact it did occur." (U.S. vs. Merced, 39
Phil. 198, 202-203 )

Meaning of unlawful aggression.

U n law f ul a g g re s s io n is e qu iv a le nt to a s sa u l t or at least
threatened assault of an immediate and imminent kind. (People vs.
Alconga, 78 Phil. 366) There is unlawful aggression when the peril to
one's life, limb or right is either actual or imminent. There must be
actual physical force or actual use of weapon. (People vs. Crisostomo,
No. Oct. 23 , 1981, 108 SCRA 288, 298)
There must be an actual physical assault upon a person, or at
least a threat to inflict real injury.
In case of threat, the same must be offensive and positively
strong, showing the wrongful intent to cause an injury. (U.S. vs.
Guysayco, 13 Phil. 292, 295)
Unlawful aggression p resupp oses an actual, sudden, and
unexpected attack, or imminent danger thereof, and not merely a
threatening or intimidating attitude. (People vs. Pasco, Jr., No. L-
45715, June 24, 1985, 137 SCRA 137; People vs. Bayocot, G.R. No.
55285, June 28, 1989, 174 SCRA 285, 292; People vs. Rey, G.R. No.
80089, April 13, 1989, 172 SCRA 149, 156)
Unlawful aggression refers to an attack that has actually broken
out or materialized or at the very least is clearly imminent; it can•
not consist in oral threats or a merely threatening stance or posture.

151
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

(People vs. Lachica, 132 SCRA 230 People vs. Tac-an, G.R.
Nos. 76338-39, Feb. 26, 1990, 182 SCRA 601 , 613) There must be a
real danger to life or personal safety. (People vs. Cagalingan, G.R.
No. 79168, Aug. 3, 1990, 188 SCRA 313, 318)
There is unlawful aggression when the peril to one's life, limb
(People vs. Sumicad, 56 Phil. 643, 647), or right is either actual or
imminent.

When there is no peril to one's life, limb or right, there is no unlawful

aggression.
Thus, the act of the deceased in preventing the accused from
inflicting a retaliatory blow on the person who had boxed the
accused is not unlawful aggression. (People vs. Flores, C.A., 47
O.G. 2969)
Where the d eceased, after kiddin g the accused, another
Constabulary soldier acting as sentry and singing, told the latter
that he had no voice for singing and, after words were exchanged
and while still in a spirit of fun, the deceased seized the accused by
the throat, whereupon the latter killed the deceased with his rifle,
it was held that the fact that the deceased seized the accused by the
throat and exerted pressure thereon in one of his frolics which he
had persistently kept up with notorious imprudence, and in spite
of the opposition of the accused, cannot be considered as an illegal
aggression in the case of two companions in arms quartered in the
same barracks. (U.S. vs. Padilla, 5 Phil. 396)
Where the deceased merely held the hands of the son of the
accused to request him (the son) to release the knife in order that
nothing untoward might happen, but he refused to do so, and in order
to avoid bloodshed, the deceased tried to wrest the knife from him
and in so doing pressed him against a coconut tree, without the least
intention of harming him, the father was not justified in killing the
deceased, because there was no unlawful aggression on the part of
the latter. (People vs. C.A., 44 O.G. 2774)

Peril to one's life.

Actual — that the danger must be present, that is, actually
in existence.

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

Example:

U.S. vs. Jose Laurel

(22 Phil. 252)
Facts: On the night of December 26, 1909, while the girl Con-
cepcion Lat was walking along the street, on her way from the house
of Exequiel Castillo, situated in the pueblo of Tanauan, Province of
Batangas, accompanied by several young people, she was approached
by Jose Laurel who suddenly kissed her and immediately thereafter
ran off in the direction of his house, pursued by the girl's companions,
among whom was the master of the house above-mentioned, Exequiel
Castillo, but they did not overtake him.
Early in the evening of the 28th of December, Jose Laurel went
to the parochial building, in company with several young people, for
the purpose of attending an entertainment which was to be held there.
While sitting in the front row of chairs, and while the director of the
college was delivering a discourse, Jose Laurel was approached by
Domingo Panganiban who told him that Exequiel Castillo wished to
speak with him, to which Laurel replied that he should wait a while
and thereupon Panganiban went away. A short time afterwards, he
was also approached by Alfredo Yatco who gave him a similar mes•
sage, and soon afterwards Felipe came up and told him that
Exequiel Castillo was waiting for him on the of the house.
This being the third summons addressed to him, he arose and went
down to ascertain what the said Exequiel wanted. When they met,
Exequiel asked Laurel why he kissed his (Exequiel's) sweetheart, and
on Laurel's replying that he had done so because she was very fickle
and prodigal of her use of the word on all occasions, Exequiel said
to him that he ought not to act that way and immediately struck him a
blow on the head with a cane or club, which assault made Laurel dizzy
and caused him to fall to the ground in a sitting posture and that, as
Laurel feared that his aggressor would continue to assault him, he
took hold of the pocketknife which he was carrying in his pocket and
therewith stabbed Exequiel. Among the wounds inflicted on Exequiel,
the wound in the left side of his breast was the most serious on account
of its having fully penetrated the lungs and caused him to spit blood.
He would have died, had it not been for the timely medical aid rendered
him.

Held: The defensive act executed by Jose Laurel was attended by

the three requisites of illegal aggression on the part of Exequiel Castillo,
there being lack of sufficient provocation on the part of Laurel, who
did not provoke the occurrence complained of, nor did he direct that
Exequiel Castillo be invited to come down from the parochial

15
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

and arrange the interview in which Castillo alone was interested, and,
finally, because Laurel, in defending himself with a against
the assault made upon him with a cane, which may also be a deadly
weapon, employed reasonable means to prevent or repel the same.

2. Imminent — that the danger is on the point of happening.

It is not required that the attack already begins, for it may
be too late.
Example:

People vs. Cabungcal

(51 Phil. 803)

Facts: On March the accused invited several persons to

a picnic in a fishery on his property in the barrio of Misua, municipality
of Infanta, Province of Tayabas. They spent the day at said fishery
and in the afternoon returned in two boats, one steered by the accused
and the other by an old woman named Nine
persons were in the boat steered by the accused, the great majority
of whom were women, and among them the accused's wife and son
and a nursing child, son of a married couple, who had also gone in
his boat. The deceased Juan was another passenger in
his boat. Upon reaching a place of great depth, the deceased rocked
the boat which started it to take water, and the accused, fearing the
boat might capsize asked the deceased not to do it. As the deceased
paid no attention to this warning and continued rocking the boat, the
accused struck him on the forehead with an oar. The deceased fell
into the water and was submerged, but a little while after appeared
on the surface having grasped the side of the boat, saying that he
was going to capsize it and started to move it with this end in view,
seeing which the women began to cry, whereupon the accused struck
him on the neck with the same oar, which submerged the deceased
again. The deceased died as a consequence.

Held: Due to the condition of the river at the point where the
deceased started to rock the boat, if it had capsized, the passengers
would have run the risk of losing their lives, the majority of whom
were women, especially the nursing child. The conduct of the deceased
in rocking the boat until the point of it having taken water and his
insistence on this action in spite of the accused's warning, gave rise
to the belief on the part of the accused that it would capsize if he did
not separate the deceased from the boat in such a manner as to give
him no time to accomplish his purpose. It was necessary to disable
him momentarily. For this purpose, the blow given him by the accused
on the forehead with an oar was the least that could reasonably have

15
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

been done. And this consideration militates with greater weight with
respect to the second blow given in his neck with the same oar, because
then the danger was greater than the boat might upset, especially as
the deceased had expressed his intention to upset it.

Although the case involves defense of relatives and at the same

time defense of strangers, it is cited here because unlawful aggression
is also a requisite in defense of relatives and in defense of strangers
and has the same meaning.

Peril to one's limb.

When a person is attacked, he is in imminent danger of death
or harm.
The blow with a deadly weapon may be aimed at the vital parts
of his body, in which case there is danger to his life; or with a less
deadly weapon or any other weapon that can cause minor physical
injuries only, aimed at other parts of the body, in which case, there
is danger only to his limb.

The peril to one's limb may also be actual or only imminent.

Peril to one's limb includes peril to the safety of one's person
from physical injuries.

An attack with fist blows may one's safety from physical

injuries. Such an attack is unlawful aggression. (People vs. Montalbo,
56 Phil. 443)

There must be actual force or actual use of weapon.

The person defending himself must have been attacked with
actual physical force or with actual use of weapon.
Thus, insulting words addressed to the accused, no matter
how objectionable they may have been, without physical assault,
could not constitute unlawful aggression. (U.S. vs. Carrero, 9 Phil.
544)
A light push on the head with the hand does not constitute
unlawful aggression. (People vs. 61 Phil. 786) A mere
push or a shove, not followed by other acts, does not constitute
unlawful aggression. (People vs. Sabio, G.R. No. L-23734, April
27, 1967)

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Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

But a slap on the face is an unlawful aggression. Two persons

met in the street. One slapped the face of the other and the latter
repelled it by clubbing him and inflicting upon him less serious
physical injury. Held: The act of slapping another constituted the
use of force qualifying an unlawful aggression. (Decision of the
Supreme Court of Spain of January 20, 1904; People vs. Roxas, 58
Phil. 733)

Reason why slap on the face constitutes unlawful aggression.

Since the face represents a person and his dignity, slapping it
is a serious personal attack. It is a physical assault coupled with a
willful disregard, nay, a defiance, of an individual's personality. It
may, therefore, be frequently regarded as placing in real danger a
person's dignity, rights and safety. (People vs. Sabio, G.R. No. L-23734,
April 27, 1967)

Mere belief of an impending attack is not sufficient.

Mere belief of an impending attack is not sufficient. Neither is
an intimidating or threatening attitude. Even a mere push or shove
not followed by other acts placing in real peril the life or personal
safety of the accused is not unlawful aggression. (People vs. Bautista,
254 SCRA 621)

"Foot-kick greeting" is not unlawful aggression.

Teodoro Sabio was squatting with a friend, Irving Jurilla, in a
plaza. Romeo Bacobo and two others — Ruben and Leonardo
Garcia — approached them. All of them were close and old friends.
Romeo Bacobo then asked Sabio where he spent the holy week. At
the same time, he gave Sabio a "foot-kick greeting," touching Sabio's
foot with his own left foot. Sabio thereupon stood up and dealt Romeo
Bacobo a fist blow, inflicting upon him a lacerated wound, 3/4 inch
long, at the upper lid of the left eye. It took from to 12 days to
heal and prevented Romeo Bacobo from working during said period
as employee of Victorias Milling Co., Inc.
Held: A playful kick at the foot by way of greeting between
friends may be a practical joke, and may even hurt; but it is not a
serious or real attack on a person's safety. It may be a mere slight
provocation. (People vs. Sabio, 19 SCRA 901)

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

No unlawful aggression, because there was no imminent and

real danger to the life or limb of the accused.
If, indeed, Rillamas did take hold of the barrel of appellant's rifle
or even tried to grab it, we do not believe it was justified for appellant
remove the safety lock and fire" his weapon. In their relative
positions, appellant had more freedom of action than the deceased
who was sandwiched among the three other passengers within the
small area of the calesa in which they were. In other words, between
the two of them, appellant had the better chance to win in the struggle
for the rifle. (People vs. Riduca, No. L-26729, Jan. 55 SCRA
190, 199)
True, the deceased acted rather belligerently, arrogantly, and
menacingly at the accused-appellant, but such behavior did not give
rise to a situation that actually posed a real threat to the life or safety
of accused-appellant. The peril to the latter's life was not imminent
and actual. To constitute unlawful aggression, 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.
(People vs. Macaso, No. June 30, 1975, 64 SCRA 659, 665-
666)

A strong retaliation for an injury or threat may amount to an

unlawful aggression.
When a person who was insulted, slightly injured or threatened,
made a strong retaliation by attacking the one who gave the insult,
caused the slight injury or made the threat, the former became the
offender, and the insult, injury or threat should be considered only as
a provocation mitigating his liability. (U.S. vs. 9 Phil. 544)
In this case, there is no self-defense.

Retaliation is not self-defense.

Retaliation is different from an act of self-defense. In retaliation,
the aggression that was begun by the injured party already ceased to
exist when the accused attacked him. In self-defense, the aggression
was still existing when the aggressor was injured or disabled by the
person making a defense.
Thus, when a person had inflicted slight physical injuries on
another, without intention to inflict other injuries, and the latter

15
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1

attacked the former, the one making the attack was an unlawful
aggressor. The attack made was a retaliation. But where a person is
about to strike another with fist blows and the latter, to prevent or
repel the blows, stabs the former with a knife, the act of striking with
fist blows is an unlawful aggression which may justify the use of the
knife. If the knife is a reasonable means, there is self-defense.

The attack made by the deceased and the killing of the

deceased by defendant should succeed each other
without appreciable interval of time.
In order to justify homicide on the ground of self-defense, it
is essential that the killing of the deceased by the defendant be
simultaneous with the attack by the deceased, or at least both
acts succeeded each other without appreciable interval of time. (U.S.
vs. Ferrer, 1 Phil. 56)

When the killing of the deceased by the accused was after the attack
made by the deceased, the accused must have no time nor occasion for
deliberation and cool thinking.
The deceased drew his revolver and levelled it at the accused
who, sensing the danger to his life, sidestepped and caught the hand
of the deceased with his left, thus causing the gun to drop to the floor.
Immediately, the accused drew his knife, opened it and stabbed the
deceased in the abdomen.
The fact that when the accused held the right hand of the
deceased, which carried the gun, the weapon fell to the floor could
not be taken to mean that the unlawful aggression on the part of the
deceased had ceased. The incident took place at nighttime in the house
of a relative of the deceased; among those present were a brother
and a cousin of the deceased, said cousin having a criminal record;
and the deceased himself had been indicted for illegal possession of
firearm and for discharge of firearm. Under such circumstances, the
accused could not be expected to have acted with all the coolness of
a person under normal condition. Uppermost in his mind at the time
must have been the fact that his life was in danger and that to save
himself he had to do something to stop the aggression. He had no
time nor occasion for deliberation and cool thinking because it was
imperative for him to act on the spot. (People vs. Arellano, C.A., 54
O.G. 7252)

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

The unlawful aggression must come from the person who

was attacked by the accused.
Although the accused was unlawfully attacked, nevertheless, the
aggressor was not the deceased but another person. Consequently, this
unlawful aggression cannot be considered in this case as an element of self-
defense, because, in order to constitute an element of self-defense, the unlawful
aggression must come, directly or indirectly, from the person who was
subsequently attacked by the accused. It has been so held by the
Supreme Court of Spain in its decision of May nor can such
element of unlawful aggression be considered present when the author
thereof is unknown, as was held in the decision of February of
said Supreme Court. (People vs. Gutierrez, 53 Phil. 609, 611)

The alleged act of the victim in placing his hand in his pocket,
as if he was going to draw out something, cannot be characterized
as unlawful aggression. On the other hand, the accused was the
aggressor. His act of arming himself with a bolo and following
and overtaking the group of the victim shows that he had formed
the resolution of liquidating the victim. There being no unlawful
aggression, there could be no self-defense. (People vs. Calantoc, No. L-
27892, Jan. 31 , 1974, 55 SCRA 458, 463-464)

A public officer exceeding his authority may become an

unlawful aggressor.
Thus, a provincial sheriff who, in carrying out a writ of execution,
exceeded his authority by taking against the will of the judgment
debtor personal property with sen ti men tal value to the latter,
although other personal property sufficient to satisfy the claim of the
plaintiff was made available to said sheriff, was an unlawful aggressor
and the debtor had a right to repel the unlawful aggression. (People
vs. Hernandez, 59 Phil. 343)
The lawful possessor of a fishing net was justified in using force
to repel seizure by a peace officer who was making it without order
from the court. (People vs. [CA] 36 O.G. 54)

Nature, character, location, and extent of wound of the

accused allegedly inflicted by the injured party may belie
claim of self- defense.
1. The accused, claiming self-defense, exhibited a small

15
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

scar 1/2 inches long) caused by an instrument on his

head. Held: The exhibition of a small wound shortly
after the occurrence does not meet the requirement for
— paraphrasing the Supreme Court — "if in order to be
exempt from military service there are those who mutilate
themselves or cause others to mutilate them, who would
not wound himself slightly in order to escape" the penalty
of reclusion temporal prescribed for the crime of homicide?
(People vs. 52 Phil. 94, 96)
2. The location, number and seriousness of the stab wounds
inflicted on the victims belie the claim of self-defense. One
of the victims alone sustained twenty-one (21) wounds.
(People vs. Batas, G.R. Nos. 84277-78, Aug. 2, 1989, 176
SCRA 46, 53, 54)
3. The nature, character, location and extent of the wounds
suffered by the deceased belie any supposition that it
was the deceased who was the unlawful aggressor. "The
nature and number of wounds inflicted by an assailant
[are] constantly and unremittingly considered important
indicia which disprove a plea of self-defense." (People vs.
G.R. No. Nov. SCRA 35, 43)
The deceased suffered three stab wounds, two of which
were fatal, and one incised wound. (People vs. Marciales,
No. Oct. 18, 1988, 166 SCRA 436, 443)
Appellant's theory of self-defense is negatived by the nature
and location of the victim's wounds which, having a right- to-
left direction, could not have possibly been inflicted by a
right-handed person in front of the victim with a two-feet
long bolo. (People vs. Labis, No. L-22087, Nov. 15, 1967,
21 SCRA 875, 882)
5. In view of the number of wounds of the deceased, nineteen
in number, the plea of self-defense cannot be seriously
So it has been constantly and uninterruptedly
held by the Supreme Court from U.S. vs. Gonzales (8 Phil.
443 to People vs. Constantino (L-23558, Aug. 10,
1967, 20 SCRA 940), a span of sixty (60) years. (People vs.
Panganiban, No. L-22476, Feb. 27, 1968, 22 SCRA 817,
823)

16
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

6. The accused was the only eyewitness to the crime. He

admitted that he killed the deceased, but advanced the
claim that he acted in self-defense. Held: The actual,
undispu ted, physical facts flatly contradict the whole
theory of self-defense. The nature, character, location
and extent of the wound, as testified to by the doctor who
had examined the wound, clearly show that the deceased
was struck either from behind or while his body was in a
reclining position, from which it follows that the accused
did not act in self-defense. (People vs. Tolentino, 54 Phil.
77, 80)

Improbability of the deceased being the aggressor belies the

claim of self-defense.
It was unlikely that a sexagenarian would have gone to the
extent of assaulting the 24-year-old accused who was armed with
a gun and a bolo, just because the latter refused to give him a pig.
(People vs. Diaz, No. L-24002, Jan. 21 , 1974, 55 SCRA 178, 184)
It is hard to believe that the deceased, an old man of 55 years
sick with ulcer, would still press his attack and continue hacking the
accused after having been seriously injured and had lost his right
hand. (People vs. No. Jan. 23, 1974, 55 SCRA 245,
253-254)

The fact that the accused declined to give any statement

when he surrendered to a policeman is inconsistent with
the plea of self-defense.
When the accused surrendered to the policemen, he declined to
give any statement, which is the natural course of things he would
have done if he had acted merely to defend himself. A protestation
of innocence or justification is the logical and spontaneous reaction
of a man who finds himself in such an inculpatory predicament as
that in which the policemen came upon him still clutching the death
weapon and his victim dying before him. (People vs. Manansala, No.
Feb. 17, 1970, 31 SCRA 401 , 404)
The accused did not act in self-defense because, if he had done
so, that circumstance would have been included in his confession. He
never declared in his confession that he acted in self-defense. Had

16
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

he acted in self-defense, he should have reported the incident to the

police of the three towns, the poblacion of which he passed when he
fled from the scene of the incident. (People vs. De la Cruz, No. L-45485,
Sept. 19, 1978, 85 SCRA 285, 291; See also People vs. Delgado, G.R.
No. 79672, Feb. 15, 1990, 182 SCRA 343, 350)

Physical fact may determine whether or not the accused

acted in self-defense.
In People vs. Dorico (No. Nov. 29, 1973, 54 SCRA 172,
184), where the accused claimed self-defense by alleging that he
stabbed the victim twice when the latter lunged at the accused to
grab the latter's bolo, it was observed that if this were true, the victim
would have been hit in front. The evidence showed, however, that the
wounds were inflicted from behind.
The physical fact belies the claim of self-defense. The revolver
of the deceased was still tucked inside the waistband of his pants
which is indicative of his unpreparedness when he was fired upon
simultaneously by the accused with their weapons.
The fact that the deceased received a total of 13 gunshot wounds is
inconsistent with the claim that the deceased was fired upon in self-
defense. (People vs. Perez, No. L-28583, April SCRA 603 ,
610)
In People vs. Aquino (No. L-32390, Dec. 28, 1973, 54 SCRA
409), the plea of self-defense was sustained. There were conflict•
ing versions as to how the victim was shot but the Supreme Court
sustained the version of the accused as being in accord with the
physical evidence. The prosecution tried to prove that the victim
was standing about two or three meters away from the truck where
the accused was seated as driver and that the accused, without any
exchange of words, shot the victim. The accused, on the other hand,
claimed that the victim went up the running board of the truck,
after pulling out a "balisong," and held on to the windshield frame.
When the victim lunged with his knife, the accused leaned far right,
at the same time parrying the hand of the victim who switched to
a stabbing position and, at that moment, the accused, who was
already leaning almost prone on the driver's seat, got his gun from
the tool box and shot the victim. The Court considered the physical
objective facts as not only consistent with, but confirming strongly,
the plea of self-defense. The direction and trajectory of the bullets

16
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

would have been different had the victim been standing upright two
or three meters to the left of the truck.

When the aggressor flees, unlawful aggression no longer

exists.
When unlawful aggression which has begun no longer exists,
because the aggressor runs away, the one making a defense has no
more right to kill or even to wound the former aggressor.

People vs. Alconga, et al.

(78 Phil. 366)

Facts: The deceased was the banker in a game of black jack.

The accused posted himself behind the deceased acting as a spotter
of the cards and communicating by signs to his partner. Upon
discovering the trick, the deceased and the accused almost came
to blows. Subsequently, while the accused was seated on a bench
the deceased came and forthwith gave a blow with a "pingahan,"
but the accused avoided the blow by crawling under the bench. The
deceased continued with second and third blows, and the accused
in a crawling position fired his revolver. A hand to hand fight
ensued, the deceased with his dagger and the accused using his bolo.
Having sustained several wounds, the deceased ran away, but was
followed by the accused and another fight took place, during which
a mortal blow was delivered by the accused, slashing the cranium
of the deceased.

Held: There were two stages in the fight between the accused and
the deceased. During the first stage of the fight, the accused in inflicting
several wounds upon the deceased acted in self-defense, because then
the deceased, who had attacked the accused with repeated blows, was
the unlawful aggressor. But when the deceased after receiving several
wounds, ran away, from that moment there was no longer any danger
to the life of the accused who, being virtually unscathed, could have
chosen to remain where he was and when he pursued the deceased,
fatally wounding him upon overtaking him, Alconga was no longer
acting in self-defense, because the aggression begun by the deceased
ceased from the moment he took to his heels.

In a case where the deceased, who appeared to be the first

aggressor, ran out of bullets and fled, and the accused pursued him
and, after overtaking him, inflicted several wounds on the posterior
side of his body, it was held that in such a situation the accused
should have stayed his hand, and not having done so he was guilty of

16
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

homicide. (People vs. Del C.A., 58 O.G. 7879, citing decisions

of the Supreme Court)

Retreat to take more advantageous position.

If it is clear that the purpose of the aggressor in retreating is to
take a more advantageous position to insure the success of the attack
already begun by him, the unlawful aggression is considered still
continuing, and the one making a defense has a right to pursue him
in his retreat and to disable him.

No unlawful aggression when there is agreement to fight.

1. No unlawful aggression in concerted fight, as when the
accused and the deceased, after an altercation in a bar,
agreed to fight, went to a store and purchased two knives;
that thereafter, the accused repeatedly expressed his desire
and wish to the deceased not to fight, and that the former
begged the latter that there be no fight between them,
and that the deceased paid no heed to such request and
attacked the accused; but the accused succeeded in killing
the deceased. It was held that the aggression was reciprocal
and legitimate as between two contending parties. (U.S.
vs. Navarro, 7 Phil. 713; See also People vs. Marasigan,
51 Phil. 701 and People vs. Gondayao, 30 SCRA 226)
2. There is agreement to fight in this case.
When the accused, pursued by the deceased, reached
his house, he picked up a pestle and, turning towards the
deceased, faced him, saying: "Come on if you are brave,"
and then attacking and killing him. It was held that the
accused did not act in self-defense, for what he did after
believing himself to be duly armed, was to agree to the
fight. (People vs. Monteroso, 51 Phil. 815)
3. The challenge to a fight must be accepted.
If the deceased challenged the accused to a fight and
forthwith rushed towards the latter with a bolo in his hand,
so that the accused had to defend himself by stabbing the
deceased with a knife, the accused, not having accepted the
challenge, acted in self-defense. (People vs. Del Pilar, C.A.,
44 O.G. 596)

16
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

Reason for the rule.

Where the fight is agreed upon, each of the protagonists is at
once assailant and assaulted, and neither can invoke the right of self-
defense, because aggression which is an incident in the fight is bound
to arise from one or the other of the combatants. (People vs. Quinto, 55
Phil.

When parties mutually agree to fight, it is immaterial who

attacks or receives the wound first, for the first act of force is an
incident of the fight itself and in no wise is it an unwarranted and
unexpected aggression which alone can legalize self-defense. (U.S. vs.
et 36 Phil. 837; People vs. Marasigan, 51 Phil. 701; People
vs. 56 Phil. 19; People vs. Neri, 77 Phil. 1091)

Aggression which is ahead of the stipulated time and place

is unlawful.
Where there was a mutual agreement to fight, an aggression
ahead of the stipulated time and place would be unlawful. The
acceptance of the challenge did not place on the offended party the
burden of preparing to meet an assault at any time even before
reaching the appointed time and place for the agreed encounter, and
any such aggression was patently illegal. (Severino Justo vs. Court
of Appeals, 53 O.G. 4083)

Illustration:
A and B were in the office of a division superintendent of
schools. A and B had an altercation. A grabbed a lead paper
weight from a table and challenged B to go out, to fight outside
the building. A left the office, followed by B. When they were in
front of the table of a clerk, B asked A to put down the paper
weight but instead A grabbed the neck and collar of the polo
shirt of B which was torn. B boxed A several times.
In this case, the aggression made by A which took place
before he and B could go out of the building is unlawful,
notwithstanding their agreement to fight.

One who voluntarily joined a cannot claim self-defense.

The court a quo rejected the claim of self-defense interposed by
the appellant. We find that such plea cannot be availed of because no

16
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1

unlawful aggression, so to speak, was committed by the deceased,

Rodolfo and H ern an d o Caunte against the appellant.
Appellant's version of the incident was to the effect that he had
come to the aid of Villafria at the latter's call when Villafria boxed
Mariano Dioso and engaged the group of Dioso, Saldo and Caunte in
a fight. In other words, he voluntarily joined the fight, when he did
not have to. He voluntarily exposed himself to the consequences of
a fight with his opponents. Granting arguendo that the first attack
came from Dioso or Saldo or Caunte, yet same cannot be considered
an unlawful or unexpected aggression. The first attack which came
from either is but an incident of the fight. (People vs.
64 O.G. 12632)

The rule now is "stand ground when in the right."

The ancient common law rule in homicide denominated "retreat
to the wall," has now given way to the new rule "stand ground when
in the right."
So, where the accused is where he has the right to be, the law does
not require him to retreat when his assailant is rapidly advancing
upon him with a deadly weapon. (U.S. vs. 37 Phil. 57)
The reason for the rule is that if one flees from an aggressor, he
runs the risk of being attacked in the back by the aggressor.

How to determine the unlawful aggressor.

In the absence of direct evidence to determine who provoked the
conflict, it has been held that it shall be presumed that, in the nature
of the order of things, the person who was deeply offended by the insult
was the one who believed he had a right to demand explanation of
the perpetrator of that insult, and the one who also struck the first
blow when he was not satisfied with the explanation offered. (U.S.
vs. Laurel, 22 Phil. 252)
The circumstance that it was the accused, not the deceased, who
had a greater motive for committing the crime on the ground that the
deceased had already sufficiently punished the accused on account
of his misbehavior and because he was publicly humiliated, having
gotten the worst of the fight between the two inside the theater, leads
the court to the conclusion that the claim of self-defense is really
untenable. (People vs. Berio, 59 Phil. 533)

16
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

Unlawful aggression in defense of other

rights.
Note that in the three classes of defense mentioned in paragraphs
2 and 3 of Art. the defense of rights requires also the first and
second requisites, namely, (1) unlawful aggression, and (2) reasonable
necessity of the means employed to prevent or repel it.

1. Attempt to rape a woman — defense of right to chastity.

a. Embracing a woman, touching her private parts and
her breasts, and throwing her to the ground for the
purpose of raping her in an uninhabited place when
it was twilight, constitute an attack upon her honor
and, therefore, an unlawful aggression. (People vs.
De la Cruz, 61 Phil. 344)

b. Placing of hand by a man on the woman's upper thigh

is unlawful aggression. (People vs. 76 Phil.
174)

2. Defense of property.
Defense of property can be invoked as a justifying
circumstance only when it is coupled with an attack on
the person of one entrusted with said property. (People vs.
Apolinar, C.A., 38 O.G. 2870)
3. Defense of home.
Violent entry to another's house at nighttime, by a
person who is armed with a and forcing his way into the
house, shows he was ready and looking for trouble, and the
manner of his entry constitutes an act of aggression. The
owner of the house need not wait for a blow before repelling
the aggression, as that blow may prove fatal. (People vs.
Mirabiles, 45 5th 277)
In this day and times when bold robberies and
thieveries are committed even under the very noses of the
members of the household and usually at night, courts
must not hesitate to sustain the theory of self-defense of
the victim of thievery or robbery when such thief or robber
by overt acts shows aggression instead of fear or desire to
escape upon apprehension for certainly such an intruder

16
must be prepared not only to steal but to kill under the

16
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1
Self-Defense

circumstances. In the case at bar, even if the accused did

not actually see the victim assault him with the
the mere fact that the victim assaulted the accused under
cover of darkness is such unlawful aggression as would
justify the accused to defend himself. (People vs. Salatan,
[CA] 69 O.G. 10134)

People vs. De la Cruz

(61 Phil. 344)

Facts: The accused, a woman, was walking home with a party

including the deceased, Francisco Rivera. It was already dark and they
were passing a narrow path. When the other people were far ahead,
the deceased who was following the accused suddenly threw his arms
around her from behind, caught hold of her breasts, kissed her, and
touched her private parts. He started to throw her down. When the
accused felt she could not do anything more against the strength of her
aggressor, she got a knife from her pocket and stabbed him.
Held: She was justified in making use of the knife in repelling
what she believed to be an attack upon her honor since she had no other
means of defending herself.

An attempt to rape a woman constitutes an aggression sufficient

to put her in a state of legitimate defense inasmuch as a woman's
honor cannot but be esteemed as a right as precious, if not more than
her very existence. The woman thus imperilled may kill her offender
if that is the only means left for her to protect her honor from so grave
an outrage. (People vs. Luague, et 62 Phil. 504)

People vs.
(76 Phil. 174)
Facts: The deceased was courting the accused in vain. One day,
the deceased approached her, spoke to her of his love which she flatly
refused, and he thereupon suddenly embraced and kissed her on account
of which the accused gave him fist blows and kicked him. Thereafter,
she armed herself with a fan knife, whenever she went out. One week
after the incident, the deceased entered a chapel, went to sit by the
side of the accused, and placed his hand on the upper part of her right
thigh. Accused pulled out her fan knife and with it stabbed the deceased
at the base of the left side of the neck, inflicting a mortal wound.
Held: The means employed by the accused in the defense of her
honor was evidently excessive. The chapel was lighted with electric
16
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

lights, and there were already several people, including her father and
the barrio lieutenant, inside the chapel. Under the there
was and there could be no possibility of her being raped.

The Supreme Court apparently considered in this case the

existence of unlawful aggression consisting in the deceased's placing
his hand on the upper portion of her right thigh. The accused was
not given the benefit of complete self-defense, because the means
employed was not reasonable. If the accused only gave the deceased
fist blows or kicked him, to prevent him from going further in his
attempt to commit an outrage upon her honor, she would have been
completely justified in doing so.

People vs. Apolinar

(C.A., 38 O.G. 2870)

Facts: The accused, armed with a shotgun, was looking over his
land. He noticed a man carrying a bundle on his shoulder. Believing
that the man had stolen his the accused shouted for him to stop,
and as he did not, the accused fired in the air and then at him, causing
his death.
Held: Defense of property is not of such importance as right to
life, and defense of property can be invoked as a justifying circumstance
only when it is coupled with an attack on the person of one entrusted
with said property.

Had the accused, who wanted to stop the thief then approaching
him, been attacked, say with a by that thief, he would have been
justified in shooting him, if the shotgun was the only available weapon
for his defense.
In such case, there would be unlawful aggression on the part of
the deceased, which is required even in defense of one's property. It
will be noted that in paragraph 1 of Article the opening clause,
which is followed by the enumeration of the three requisites, states:
"anyone who acts in defense of his person or rights." The word
"rights" includes right to property. Hence, all the three requisites of
self-defense, particularly unlawful aggression, must also concur in
defense of property.
In the case of People vs. Goya, CA-G.R. No. Sept. 29,
1956, the guard in a bodega surprised the injured party in the act

17
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

of going out through the door with a sack of To prevent the

latter from taking away a sack of palay, the guard fired a shot at the
party, inflicting less serious physical injuries. Held: Since the
injured party did not lay hands on the guard or make any attempt to
attack the latter, the guard cannot properly and legally claim defense
of property. There must be an attack by the one stealing the property
on the person defending it.

The belief of the accused may be considered in

determining the existence of unlawful aggression.
"A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arm and a pistol in his hand,
and using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in
his hand, strikes B over the head before or at the instant the pistol
is discharged; and of the wound B dies. It turns out the pistol was
loaded with powder only, and that the real design of B is only to
terrify A. Will any reasonable man say that A is more criminal than
he would have been if there had been a bullet in the pistol? Those who
hold such doctrine must require that a man so attacked must, before
he strikes the assailant, stop and ascertain how the pistol is loaded
— a doctrine which would entirely take away the essential right of
self-defense." (Lloyd's Report, p. 160, cited in U.S. vs. Ah Chong, 15
Phil. 502-503)

There is self-defense even if the aggressor used a toy pistol,

provided the accused believed it was a real gun.
That Crispin Oscimina's gun turned out to be a toy pistol is
inconsequential, considering its strikingly similar resemblance to a
real one and defendant-appellant's belief that a real gun was being
aimed at him. (People vs. 11 C.A. Rep. 914)

Forcibly pushing picketers to let company trucks enter the compound

is not unlawful aggression against the rights of the picketers.
The act of the security officer of a strike-bound company in
forcibly pushing the picketers after he had ordered them to give
way and let the company trucks to enter the compound, but the
picketers refused, does not constitute unlawful aggression against
the legitimate rights of the picketers as would justify its repulsion

17
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

with equal and reasonable force such as inflicting physical injuries

upon the officer, for what was under attack by said security officer
was not the right of picketing, but the act of remaining in
the passageway when the trucks wanted to get inside, which is not a
part of the picketing protected by law. (People vs. et 3 C.A.
Rep.

Threat to inflict real injury as unlawful aggression.

mere threatening or intimidating attitude, not preceded by an
outward and material aggression, is not unlawful aggression, because
it is required that the act be offensive and positively strong, showing
the wrongful intent of the aggressor to cause an injury.

Mere threatening attitude is not unlawful aggression.

U.S. vs.
(13 Phil. 292)
Facts: As her husband had stayed away from home for more
than two weeks, remaining in the barrio of Dujat, distant about two
and one-half hours' walk from the town under the pretext that he was
engaged in field work, on the 20th of March, 1907, at about 2 p.m., the
accused decided to go to said barrio and join him. To this end she hired
a and after getting some clothes and other things necessary
for herself and husband, started out with her infant child and servant
girl; but before reaching the barrio and the where her husband
ought to be, night came on, and at about 7 o'clock she alighted and dis•
missed the vehicle after paying the driver. They had yet to travel some
distance. On seeing her husband's horse tied in front of a house, she
suspected that he was inside; thereupon she went to the steps leading
to the house, which was a low one, and then saw her husband sitting
down with his back toward the steps. She immediately entered the
house and encountered her husband, the deceased and the owners of
the house taking supper together. Overcome and blinded by jealousy
she rushed at Lorenza Estrada, attacked her with a pen knife that she
carried and inflicted five wounds upon her in consequence of which
Lorenza fell to the ground covered with blood and died a few moments
afterwards.
The accused pleaded not guilty, and in exculpation she alleged
that, when Lorenza Estrada saw her and heard her remonstrate with
her husband, she being then upstairs, Lorenza at once asked what
had brought her there and manifested her intention to attack her with
a knife that she carried in her hand, whereupon the accused caught
17
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

the deceased by the right hand in which she held the weapon, and
immediately grappled with her, and in the struggle that ensued she
managed to get hold of a pen knife that she saw on the floor close by;
she could not say whether she struck the deceased with it as she could
not account for what followed.
Held: Even though it was true that when the accused Emilia, made
her appearance, the deceased Lorenza arose with a knife in her hand
and in a threatening manner asked the accused what had brought her
there, such attitude, under the provisions of Article 8, No. 4, of the Penal
Code (Art. par. 1, of the Revised Penal Code), does not constitute
the unlawful aggression, which, among others, is the first indispensable
requisite upon which exemption (justification) by self-defense may be
sustained.

In order to consider that unlawful aggression was actually

committed, it is necessary that an attack or material aggression, an
offensive act positively determining the intent 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 justification on the ground
that it was committed in self-defense.

Examples of threats to inflict real injury:

When one aims a revolver at another with the intention of
shooting him. (Dec. Sup. Ct. Spain, Sept. 29, 1905)
2. The act of a person in retreating two steps and placing his
hand in his pocket with a motion indicating his purpose
to commit an assault with a weapon. (Dec. Sup. Ct. Spain,
June 26, 1891)
3. The act of opening a knife, and making a motion as if to
make an attack. (Dec. Sup. Ct. Spain, Oct. 24, 1895)
Note that in the above cases, the threatening attitude of the
aggressor is offensive and positively strong, showing the wrongful
intent of the aggressor to cause an injury.

When intent to attack is manifest, picking up a weapon is

sufficient unlawful aggression.
When the picking up of a weapon is preceded by circumstances
indicating the intention of the deceased to use it in attacking the
 JUSTIFYING CIRCUMSTANCES Art. 11
Par. 1

defendant, such act is considered unlawful aggression. (People vs.

Javier, 46 O.G. No. 7, July, 1950)

Aggression must be real, not merely imaginary.

Thus, whe n the accused, disliking the intervention of the
deceased in a certain incident between the accused and a couple,
armed himself with a gun and went to the house of the deceased, and
upon seeing the latter holding a kris in his hand, shot him to death,
there was no unlawful aggression, notwithstanding the claim of the
accused that the deceased was a man of violent temper, quarrelsome
and irritable, and that the latter might attack him with the kris,
because he merely imagined a possible aggression. The aggression
must be real, or, at least, imminent. (People vs. De la Cruz, 61 Phil.
422)

Aggression that is expected.

An aggression that is expected is still real, provided it is im•
minent.
It is well-known that the person who pursues another with
the intent and purpose of assaulting him does not raise his hand
to discharge the blow until he believes that his victim is within his
reach.
In this case, it is not necessary to wait until the blow is about
to be discharged, because in order that the assault may be prevented
it is not necessary that it has been actually perpetrated. (U.S. vs.
Batungbacal, 37 Phil. 382)

Second Requisite of Defense of Person or Right: Reasonable

necessity of the means employed to prevent or repel it.
This second requisite of defense presupposes the existence of
unlawful aggression, which is either imminent or actual. Hence, in
stating the second requisite, two phrases are used, namely: "to
prevent" and (2) When we are attacked, the danger to our
life or limb is either imminent or actual. In making a defense, we
prevent the aggression that places us in imminent danger or repel
the aggression that places us in actual danger. A threat to inflict real
injury places us in imminent danger. An actual physical assault places
us in actual danger.

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Par. 1 Self-Defense

In the case of U.S. us. Batungbacal, 37 Phil. 382, the Supreme

Court stated: "The law protects not only the person who repels an
aggression (meaning actual), but even the person who tries to prevent
an aggression that is expected (meaning
The second requisite of defense means that (1) there be a
necessity of the course of action taken by the person making a
defense, and (2) there be a necessity of the means used. Both must
be reasonable.
The reasonableness of either or both such necessity depends on
the existence of unlawful aggression and upon the nature and extent
of the aggression.

The necessity to take a course of action and to use a

means of defense.
The person attacked is not duty-bound to expose himself to be
wounded or killed, and while the danger to his person or life subsists,
he has a perfect and indisputable right to repel such danger by
wounding his adversary and, if necessary, to disable him completely
so that he may not continue the assault. (U.S. vs. Molina, 19 Phil.
227)

The reasonableness of the necessity depends upon the cir•

cumstances.
In emergencies where the person or life of another is
human nature does not act upon processes of formal reason but in
obedience to the instinct of self-preservation. The reasonableness of
the necessity to take a course of action and the reasonableness of the
necessity of the means employed depend upon the circumstances of
the case.
In a situation, like the one at bar, where the accused, who was
then unarmed, was being mauled with fistic blows by the deceased
and his companions for refusing their offer to drink wine, picked up
a lead pipe within his reach and with it struck the deceased on the
forehead resulting in the latter's death, the use by the accused of such
lead pipe under the circumstances is reasonable. That the accused
did not select a lesser vital portion of the body of the deceased to hit
is reasonably to be expected, for in such a situation, the accused has
to move fast, or in split seconds, otherwise, the aggression on his

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Self-Defense
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person would have continued and his life endangered. (People vs.
C.A., 67 O.G. 3313)
1. Necessity of the course of action taken.
The necessity of the course of action taken depends
on the existence of unlawful aggression. If there was no
unlawful aggression or, if there was, it has ceased to exist,
there would be no necessity for any course of action to take
as there is nothing to prevent or to repel.
In determining the existence of unlawful aggression
that induced a person to take a course of action, the place
and occasion of the assault and the other circumstances
must be considered.
a. Place and occasion of the assault considered.
The comman d given to the accused by the
deceased in a dark and an uninhabited place, for the
purpose of playing a practical joke upon him, "Lie
down and give me your money or else you made
the accused act immediately by discharging his pistol
against the deceased. It was held that a person under
such circumstances cannot be expected to adopt a
less violent means of repelling what he believed was
an attack upon his life and property. (Dec. Sup. Ct.
Spain, March 17, 1885)
Similar illustration is given in the case of U.S.
vs. Ah Chong, 15 Phil. 501-502.
b. The darkness of the night and the surprise which
characterized the assault considered.
When the accused, while walking along in a dark
street at night with pistol in hand on the lookout for
an individual who had been making an insulting dem•
onstration in front of his house, was suddenly held
from behind and an attempt was made to wrench the
pistol from him, he was justified in shooting him to
death, in view of the darkness and the surprise which
characterized the assault. The deceased might be able
to disarm the accused and to use the pistol against
the latter. (People vs. Lara, 48 Phil. 153)

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 Art. JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

No necessity of the course of action taken.

When the deceased who had attacked Alconga ran away, there
was no necessity for Alconga to pursue and kill the deceased. (People
vs. Alconga, 78 Phil. 366)
The theory of self-defense is based on the necessity on the part of
the person attacked to prevent or repel the unlawful aggression, and
when the danger or risk on his part has disappeared, his stabbing
the aggressor while defending himself should have stopped. (People
vs. Calavagan, C.A. G.R. No. August 10, 1955)
The claim of self-defense is not credible as the accused narrated
that he had succeeded in disarming the victim of the piece of wood the
latter was allegedly so that stabbing with such frequency, frenzy
and force can no longer be considered as reasonably necessary. (People
vs. Masangkay, No. Oct. SCRA
When the deceased who endeavored to set fire to the house of the
accused in which the two small children of the latter were sleeping
was already out of the house and prostrate on the ground, having been
boloed by the accused, there was no reasonable necessity of killing
her. (U.S. vs. Rivera, 41 Phil. 472 , 474)
While the accused might have been and doubtless was justified
in picking up the bamboo pole to keep his adversary at bay, he was not
justified in striking the head of the deceased with it, as he was not in any
real danger of his life, for his adversary, although armed with had
not attempted to draw it, and limited his assault to an attempt to push
the accused back to the shallow pool into which he had been thrown at
the outset of the quarrel. (U.S. vs. Pasca, 28 Phil. 222, 226)
While there was an actual physical invasion of appellant's prop•
erty when the deceased chiselled the walls of his house and closed
appellant's entrance and exit to the highway, which he had the right
to resist, the reasonableness of the resistance is also a requirement of
the justifying circumstance of self-defense or defense of one's rights.
When the appellant fired his shotgun from his window, killing his two
Victims, his resistance was disproportionate to the attack. (People vs.
121 SCRA 402-403)

When aggressor is disarmed.

When the wife was disarmed by her husband after wounding him
seriously but she struggled to regain possession of the bolo, there was

176
 JUSTIFYING CIRCUMSTANCES Art. 11
Par. 1

a reasonable necessity for him to use said bolo to disable her, because
he was already losing strength due to loss of blood and to throw away
the bolo would only give her a chance to pick it up and again use it
against him. (People vs. Rabandaban, 85 Phil. 636, 637-638; People
vs. Datinguinoo, 47 O.G. 765)

But when the defendant, who had been attacked by the deceased,
succeeded in snatching the bolo away from the latter, and the deceased
already manifested a refusal to fight, the defendant was not justified
in killing him. (People vs. 56 Phil. 98, 101)

When only minor physical injuries are inflicted after unlaw•

ful aggression has ceased to exist, there is still self-
defense if mortal wounds were inflicted at the time the
requisites of self-defense were present.
The fact that minor physical injuries were inflicted by the
accused after the unlawful aggression had ceased and after he had
stabbed the deceased with two mortal wounds, said mortal wounds
having been inflicted at a time when the requisites of complete self-
defense were still present, cannot and should not affect the benefit of
said complete self-defense in the absence those relatively
small wounds contributed to or hastened the death of the deceased.
(People vs. Del Pilar, 44 O.G. 596)
This ruling should not be applied if the deceased, after receiving
minor wounds, dropped his weapon and signified his refusal to fight
any longer, but the accused hacked him to death. The reason is that
the wound inflicted, after the aggression had ceased, was the cause
of death.

The person defending is not expected to control his blow.

Defense of person or rights does not necessarily mean the killing
of the unlawful aggressor. But the person defending himself cannot
be expected to think clearly so as to control his blow. The killing of
the unlawful aggressor may still be justified as long as the mortal
wounds are inflicted at a time when the elements of complete self-
defense are still present.
One is not required, when hard pressed, to draw fine distinctions
as to the extent of the injury which a reckless and infuriated assailant

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

might probably inflict upon him. (Brownell vs. People, 38 Mich. 732,
cited in the case of People vs. Sumicad, 56 Phil. 647)
The fact that the accused struck one blow more than was
necessary to save his own life, or that he failed to hold
his hand so as to avoid inflicting a fatal wound where a less severe
stroke might have served the purpose, would not negative self-defense,
because the accused, in the heat of an encounter at close quarters,
was not in a position to reflect coolly or to wait after each blow to
determine the effects thereof. (U.S. vs. Macasaet, 35 Phil. 229; People
vs. Espina, C.A., 49 O.G. 983)

And if it was necessary for the accused to use his revolver, he

could hardly, under the be expected to take deliberate
and careful aim so as to strike a point less vulnerable than the body
of his assailant. (U.S. vs. Mack, 8 Phil. 701; U.S. vs. 37 Phil.
57)

When the aggression is so sudden that there is no time left to the one
making a defense to determine what course of action to take.
At the moment the deceased was about to stab the superior of•
ficer of the accused, the latter hit the deceased with a brava.
The trial court believed that the accused should have only struck his
hand to disable it, or only hit him in a less vulnerable part of the body.
Held: The trial court demanded too much of the accused's wisdom,
judgment and discretion during the split second he had to think and
act to save his superior officer. (People vs. Pante, C.A., G.R. No. 5512 ,
March 29, 1940)

repelling or preventing an unlawful aggression, the one

defending must aim at his assailant, and not indiscriminately
fire his deadly weapon.
Even granting that while in a private discussion or quarrel with
his wife, appellant Galacgac was suddenly beaten twice on his head
with an iron bar by Pablo Soriano thus causing blood to ooze over
his eyes, appellant Galacgac certainly had no right to fire at random
his unlicensed revolver. He knew that there were many innocent
persons in Soriano's house, namely, his (Galacgac's) wife, his sister
and brother-in-law. Besides, there were many inhabited houses in
the vicinity of house No. 1238 Street. Of course, appellant

178
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

Galacgac had a perfect and lawful right to defend himself against the
unjustified assault upon his person made by Pablo Soriano. However,
because he did not aim at his assailant but instead indiscriminately
fired his deadly weapon at the risk of the lives and limbs of the in•
nocent persons he knew were in the place of occurrence, his act of
defense was not exercised with due care.

However, there being no intent to kill, appellant Galacgac was

held liable for physical injuries. (People vs. Galacgac, C.A., 54 O.G.
1027)
2. Necessity of the means used.

The means employed by the person making a defense

must be rationally necessary to prevent or repel an unlaw•
ful aggression.
Thus in the following cases, there was no rational
necessity to employ the means used.
a. A sleeping woman, who was awakened by her brother-
in-law grasping her arm, was not justified in using
a knife to kill him as the latter did not perform any
other act which could be construed as an attempt
against her honor. (U.S. vs. Apego, 23 Phil. 391)
b. When a person was attacked with fist blows only,
there was no reasonable necessity to inflict upon the
assailant a mortal wound with a dagger. (People vs.
Montalbo, 56 Phil. 443)
There was in this case a reasonable necessity to
act by using fist blows also. But there was no necessity
to employ a dagger to repel such an aggression.
When a man placed his hand on the upper thigh of
a woman seated on a bench in a chapel where there
were many people and which was well-lighted, there
was no reasonable necessity to kill him with a knife
because there was no danger to her chastity or honor.
(People vs. Jaurigue, 76 Phil. 174)
There was in this case a reasonable necessity to
stop the deceased from further doing the same thing
or more. But there was no necessity to use a knife.

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

It is otherwise where the husband of the accused was kneeling

over her as she lay on her back on the ground and his hand choking
her neck when she pulled out the knife inserted at the left side of her
husband's belt and plunged it at his body hitting the left back portion
just below the waist. There was reasonable necessity of the use of the
knife. (People vs. Boholst-Caballero, No. L-23249, Nov. 1974, 61
SCRA 180, 189)

The test of reasonableness of the means used.

Whether or not the means employed is reasonable, will depend
upon the nature and quality of the weapon used by the aggressor, his
physical condition, character, size and other circumstances, and those
of the person defending himself, and also the place and occasion of
the assault.
Perfect equality between the weapon used by the one defending
himself and that of the aggressor is not required, because the person
assaulted does not have sufficient tranquility of mind to think, to
calculate and to choose which weapon to use. (People vs. Padua, C.A.,
40 O.G. 998)
"Reasonable necessity of the means employed does not imply
material commensurability between the means of attack and defense.
What the law requires is rational equivalence, in the consideration
of which will enter as principal factors the emergency, the imminent
danger to which the person attacked is exposed, and the instinct,
more than reason, that moves or impels the defense, and the propor-
tionateness thereof does not depend upon the harm done, but rests
upon the imminent danger of such injury." (People vs. Encomienda,
No. Aug. 18, 1972, 46 SCRA 522, 534, quoting People vs.
Lara, 48 Phil. 153; People vs. Paras, 9 Phil. 367)

As was already mentioned, the reasonableness of the means

employed will depend upon —
1. The nature and quality of the weapons:
a. Although as a general rule a dagger or a knife is more
dangerous than a club, the use of a knife or dagger,
when attacked with a club, must be deemed reason•
able if it cannot be shown that the person assaulted
(1) had other available means or (2) if there was other
means, he could coolly choose the less deadly weapon

180
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

to repel the assault. (People vs. Padua, 40 O.G.

998)
In the case of U.S. vs. Laurel, 22 Phil. 252, a
similar ruling was applied.
The use of a bolo to repel the aggression by means
of a stick, the use of a knife against a rod, or a knife
against a stick was held to be reasonable under the cir•
cumstances. (People vs. Romero, C.A., 34 O.G. 2046)
But it was held that the use of a bayonet against
a cane is not reasonable. The accused could have
warded off the blows made by the deceased with his
cane. If the accused had only drawn his bayonet in
defense, that would have been enough to discourage
and prevent the deceased from further continuing
with his attack or sufficient to ward off the blows
given by the deceased when he attacked the accused.
In stab bi n g the d eceased with his bayonet, the
accused went beyond what was necessary to defend
himself against the unlawful aggression made by the
deceased. (People vs. No. Nov. 29,
1962, 6 SCRA 688, 692-693)
Since the deceased was a gangster with a reputa•
tion for violence, the use by the accused of a dagger
to repel the persistent aggression by the deceased
with a wooden pestle is reasonably necessary under
the circumstances. (People vs. C.A., 44 O.G.
1255)
At a distance, stones hurled by the deceased, who
was a known boxer, big and strong, may constitute a
graver danger than a bolo. In such case, the use of a
bolo was held reasonable. (People vs. Aguilario, C.A.,
56 O.G. 757)
The use of a revolver against an aggressor armed
with a bolo was held reasonable, it appearing that the
deceased was advancing upon the accused and within
a few feet of striking distance when the latter shot
him. (U.S. vs. Mack, 8 Phil. 701)
In the case of People vs. Maliwanag, No. L-30302,
Aug. 58 SCRA 323, 331-332, it was held that

181
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

there was reasonable necessity of the means employed

to repel the aggression from the deceased when the
appellant's only recourse in defending himself was
to use his service pistol against one who wielded a
deadly balisong knife.
b. To use a firearm against a dagger or a knife, in the
regular order of things, does not imply any difference
between such weapons. (Dec. Sup. Ct. of Spain, Oct.
27, 1887)
Thi s ru lin g i s s ubj ec t to the l i m i t a t i o n s
mentioned in the case of People vs. Padua, supra,
namely: there was no other available means; or
(2) if there was other the one making a defense
could not coolly choose the less deadly weapon to repel
the aggression.
But when a person is attacked with fist blows, he must
repel the same with the weapon that nature gave him,
meaning with fists also. (People vs. Montalbo, 56 Phil.
443)
This ruling applies only when the aggressor and
the one defending himself are of the same size and
strength.
2. Physical condition, character and size.
a. Thus, when the one defending himself who was of
middle age, was cornered, had his back to the iron
railing, and three or four men bigger, and stronger
than he were striking him with fists, such person was
justified in using a knife. (People vs. 58 Phil.
858)
b. The aggressor was a bully, a man larger and stronger,
of known violent character, with previous criminal
records for assault. He attacked with fist blows a
smaller man who was then armed with a bolo. In
spite of having received, as a warning, a cut with a
bolo on the left shoulder, the aggressor continued to
attempt to possess himself of the bolo. Killing him with
a bolo was justified in this case. (People vs. Sumicad,
56 Phil. 643)

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 JUSTIFYING CIRCUMSTANCES
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Self-Defense
Par. 1

The character of the aggressor is emphasized in this

case:
Considering that the aggressor provoked the
incident and started the aggression; considering that
he is of violent temperament, troublesome, strong
and aggressive with three criminal records, twice of
slander by deed and once of threat to kill; considering
that he wanted to impose his will on the family of
the accused for having rejected his nephew as a
suitor of the sister of the accused, boxing them one
after another and in their own home — the Court of
Appeals held that the accused was justified in striking
him with a bolo on the forehead and on the right eye.
(People vs. Padua, C.A., 40 O.G. 998)
3. Other circumstances considered.
In view of the imminence of the danger, a shotgun is
a reasonable means to prevent an aggression with a bolo.
M, being abruptly awakened by shouts that P was
p u rsu i n g H and M's two children, and seeing, upon
awakening, that in fact P was infuriated and pursuing H
with a bolo his hand and his arm raised in an attitude as if
to strike, took up a shotgun lying within his reach and fired
at P, killing him at once. Held: Under the circumstances,
in view of the imminence of the danger, the only remedy
which could be considered reasonably necessary to repel
or prevent that aggression, was to render the aggressor
harmless. As M had on hand a loaded shotgun, this weapon
was the most appropriate one that could be used for the
purpose, even at the risk of killing the aggressor, since
the aggression also gravely threatened the lives of
the parties assaulted. (U.S. vs. Batungbacal, 37 Phil. 382,
387-388)

Reasonable necessity of means employed to prevent or repel

unlawful aggression to be liberally construed in favor of law-
abiding citizens.
These are dangerous times. There are many lawless elements
who kill for the thrill of killing. There is no adequate protection for the

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

law abiding citizens. When a lawless person attacks on the streets or

particularly in the victim's home, he should assume the risk of losing
his life from the act of self-defense by firearm of his victim; otherwise,
the law abiding citizens will be at the mercy of the lawless elements.
Hence, the requisite of reasonable necessity of the means employed
to prevent or repel the unlawful aggression should in these times of
danger be interpreted liberally in favor of the law-abiding citizens.
(People vs. So, 5 CAR [2s] 671 , 674)

Rule regarding the reasonableness of the "necessity of

the means employed" when the one defending himself is a
peace officer.
The peace officer, in the performance of his duty, represents
the law which he must uphold. While the law on self-defense allows
a private individual to prevent or repel an aggression, the duty of a
peace officer requires him to overcome his opponent.
Thus, the fact that a policeman, who was armed with a revolver
and a club, might have used his club instead, does not alter the
principle since a policeman's club is not a very effective weapon as
against a drawn knife and a police officer is not required to afford a
person attacking him, the opportunity for a fair and equal struggle.
(U.S. vs. Mojica, 42 Phil. 784, 787)

But in the case of U.S. vs. Mendoza, 2 Phil. it was held

that it is not reasonably necessary for a policeman to kill his assailant
to repel an attack with a
The use by a police officer of his service revolver in repelling the
aggression of the deceased who assaulted him with a kitchen knife
and continued to give him thrusts in the confines of a small room
measuring 6 feet by 6 feet is reasonable and necessary. Considering
the imminent danger to which his life was exposed at the time, he
could hardly be expected to choose coolly, as he would under normal
conditions, the use of his club as a less deadly weapon to use against
his assailant. As a police officer in the lawful performance of his official
duty, he must stand his ground and cannot, like a private individual,
take refuge in flight. His duty requires him to overcome his opponent.
(People vs. Caina, 14 CAR [2s] 93 , 99-100)
There is no evidence that the accused was also armed with a
weapon less deadly than a pistol. But even if he had a club with him,

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

the pistol would still be a reasonable means to repel the aggression

of the deceased, for a police officer is not required to afford a person
attacking him with a drawn knife the opportunity for a fair and equal
struggle. While the law on self-defense allows a private individual
to prevent or repel an aggression, the duty of a peace officer requires
him to overcome his opponent. The peace officer, in the performance
of his duty, represents the law which he must uphold. (People vs. Uy,
Jr., 20 CAR [2s] 850, 859-860)

First two requisites common to three kinds of legitimate

defense.
The first two requisites thus far explained are common to self-
defense, defense of a relative, and defense of a stranger. These three
kinds of legitimate defense differ only in the third requisite.

Third requisite of self-defense.

"Lack of sufficient provocation on the part the person defending
himself."

Reason for the third requisite of self-defense.

When the person defending himself from the attack by another
gave sufficient provocation to the latter, the former is also to be blamed
for having given cause for the aggression.
Hence, to be entitled to the benefit of the justifying circumstance
of self-defense, the one defending himself must not have given cause
for the aggression by his unjust conduct or by inciting or provoking
the assailant.

Cases in which third requisite of self-defense considered

present.
The third requisite of self-defense is present —
When no provocation at all was given to the aggressor by
the person defending himself; or
2. When, even if a provocation was given, it was not sufficient;
or
3. When, even if the provocation was sufficient, it was not
given by the person defending himself; or

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Par. 1 Self-Defense

4. When, even if a provocation was given by the person

defending himself, it was not proximate and immediate
to the act of aggression. (Decisions of the Supreme Court
of Spain of March 5, 1902 and of April 20, 1906)

No provocation at all.
Thus, when A shot B to death, because B was running amuck
and with a dagger was rushing towards A manifestly intending to
stab A, there was no provocation whatsoever on the part of A. The
third requisite of self-defense is present.

There was provocation, but not sufficient.

A, having discovered that B had built a part of his fence on A's
land, asked B why he had done so. This question angered B who
immediately attacked A. If A would kill B to defend himself, the
third requisite of self-defense would still be present, because even if
it is true that the question of A angered B, thereby making B attack
A, such provocation is not sufficient. (U.S. vs. Pascua, 28 Phil. 222)
A had a right to demand explanation why B had built the fence on
A's property. The exercise of a right cannot give rise to sufficient
provocation.

How to determine the sufficiency of provocation.

The provocation must be sufficient, which means that it should
be proportionate to the act of aggression and adequate to stir the
aggressor to its commission. (People vs. Alconga, 78 Phil. 366)
Thus, to engage in a verbal argument cannot be considered
sufficient provocation. (Decision of the Supreme Court of Spain of
October 5, 1877)
Is it necessary for the provocation to be sufficient that the one
who gave it must have been guilty of using violence and thus becoming
an unlawful aggressor himself?
No, it is not necessary.
The provocation is sufficient —
When one challenges the deceased to come out of the house
and engage in a fist-fight with him and prove who is the
better man. (U.S. vs. McCray, 2 Phil. 545)

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

The v e r sio n of th e defe ns e de se rv e s no credit.

Accused father and son ch al l en ged the deceased to
and they killed him when he came out. One of the
first requisites of self-defense is unlawful aggression.
Accused father called out the deceased from his house
and provoked him to fight. Coming out, said accused
threw a stone at him. The deceased merely fought back
but together both accused assaulted him until he fell
wounded. (People vs. Valencia, No. L-58426 , Oct. 31 ,
1984 , 133 SCRA 82 , 86-87)

2. When one hurls insults or imputes to another the utterance

of vulgar language, as when the accused and his brothers
imputed to the deceased, the utterance of vulgar language
against them, which imputation provoked the deceased to
attack them. (People vs. Sotelo, 55 Phil. 403)

But it is not enough that the provocative act be

unreasonable or annoying. A petty question of pride does
not justify the wounding or killing of an opponent. (People
vs. C.A., 46 O.G. 1621)
3. When the accused tried to forcibly kiss the sister of the
deceased. The accused thereby gave sufficient provocation
to the deceased to attack him. There is no complete self-
defense, because the third requisite is not present. (People
vs. Getida, CA-G.R. No. Jan. 6, 1951)

Sufficient provocation not given by the person defending

himself.
Note the phrase "on the part of the person defending
in the third requisite of self-defense. Thus, in the case of People vs.
60 Phil. 266, it was held that the third requisite of self-
defense was present, because the provocation proven at the trial was
not given by the accused but by the brother-in-law of the deceased.

Requisite of "lack of provocation" refers

exclusively to "the person defending himself."
Thus, if the accused appears to be the aggressor, it cannot be said
that he was defending himself from the effect of another's aggression.
(People vs. Espino, 43 O.G. 4705)

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

In the case People vs. Alconga, 78 Phil. the attack made by

the deceased when Alconga was the one defending himself during the
first stage of the fight, was not considered as a provocation to Alconga
in the second stage of the fight, because then he was the aggressor and
the third requisite of self-defense is limited to the person defending
himself.

Provocation by the person defending himself not proximate

and immediate to the aggression.
Thus, if A slapped the face of B one or two days before and
B, upon meeting A, attacked the latter but was seriously injured
when A defended himself, the provocation given by A should be
disregarded, because it was not proximate and immediate to the ag•
gression made by B. In this case, the third requisite of self-defense
is still present.
In the case of U.S. vs. Laurel, supra, the kissing of the girlfriend
of the aggressor was a sufficient provocation to the latter, but since
the kissing of the girl took place on December 26 and the aggression
was made on December 28, the provocation was disregarded by the
Supreme Court.

Illustration of the three requisites of self-defense.

People vs. Dolfo

(C.A., 46 O.G. 1621)

A was an electrician while B was his assistant. A called B to him,

who instead of approaching asked him, "Why are you calling me?" A
considered the retort as a provocative answer and suddenly threw a
4 by 2 inches piece of wood at B. B retaliated by throwing at A the
same piece of wood. A picked up the piece of wood, approached B and
started to beat him with the piece of wood. B defended himself with a
screwdriver and inflicted a mortal wound on A.
Question: (1) Was there sufficient provocation on the part of B
when he retorted "Why are you calling me?" (2) Was there reasonable
necessity in using the screwdriver to repel the attack?
Answer: (1) B's answer of "Why are you calling me?" when
summoned by A might have mortified and annoyed the latter but it
was not a sufficient provocation. The provocation must be sufficient or
proportionate to the act committed and adequate to arouse one to its
commission. It is not sufficient that the provocative act be unreasonable

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

or annoying. A small question of self-pride does not justify hurting or

killing an opponent.
(2) The act of A in hurling the piece of wood at B when his
pride was hurt constituted unlawful aggression. Subsequent act of A in
attacking B with the piece of wood, after B had hurled back the thrown
piece of wood, was a continuation of the unlawful aggression already
begun. The subsequent act of A placed B in his defense, justifying the
use of a reasonable means to repel it.

(3) In determining whether or not a particular means employed

to repel an aggression is reasonable, the person attacked should not
be expected to judge things calmly and to act coolly or serenely as
one not under stress or not facing a danger to life or limb. The test
is: Considering the situation of the person defending himself, would
a reasonable man placed in the same circumstance have acted in the
same way? In this case, the screwdriver was a reasonable means to
repel the unlawful aggression of A. B was justified in killing him with
it. All the three requisites of self-defense were present. Hence, accused
B must be, as he was, acquitted.

All the elements of self-defense are present in this case.

The deceased husband of the accused was kneeling over her

as she lay on her back on the ground and his hand choking her neck
when she pulled out the knife tucked on the left side of her husband's
belt and plunged it at his body.

(2) A woman being strangled and choked by a furious aggressor

and rendered almost unconscious by the strong pressure on her throat,
she had no other recourse but to get hold of any weapon within her
reach to save herself from impending death. Reasonable necessity of
the means employed in self-defense does not depend upon the harm
done but rests upon the imminent danger of such injury.

(3) She did not give sufficient provocation to warrant the

aggression or attack on her person by her husband. While it was
understandable for the latter to be angry at his wife for finding her on
the road in the middle of the night, he was not justified in inflicting
bodily punishment with an intent to kill by choking his wife's throat.
All that she did was to provoke an imaginary commission of a wrong
in the mind of her husband, which is not a sufficient provocation under
the law of (People vs. Boholst-Caballero, No. Nov.
1974, 61 SCRA 180, 195-196)

Battered Woman Syndrome as a defense.

Un d e r Rep. Act No . 926 2 o t h e r wi s e k n o w n a s An ti - Vi o l en ce

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

Against Women and their Children Act of 2004, which took effect on
March 27, 2004, it is provided that -
"Sec. 26. Battered Women Syndrome as a Defense. — Victim-
survivors who are found by the courts to be suffering from battered
women syndrome do not incur criminal and civil liability notwith•
standing the absence of any of the elements for justifying circum•
stances of self-defense under the Revised Penal Code.
In the determination of the state of mind of the woman who was
suffering from battered woman syndrome at the time of the commis•
sion of the crime, the courts shall be assisted by expert
psychiatrists/psychologists."

The Battered Woman Syndrome, explained.

In claiming self-defense, appellant raises the novel theory
of the battered woman (BWS). While new in Philippine
jurisprudence, the concept has been recognized in foreign jurisdictions
as a form of self-defense or, at the least, incomplete self-defense. By
appreciating evidence that a victim or defendant is afflicted with the
syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and
controlled over a period of time."
A battered woman has been defined as a woman "who is repeat•
edly subjected to any forceful physical or psychological behavior by a
man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in
any form of intimate relationship with men. Furthermore, in order
to be classified as a battered woman, the couple must go through
the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and
she remains in the situation, she is defined as a battered woman."
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and the
female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false
hopes that the relationship will improve.
More graphically, the battered woman syndrome is characterized
by the so-called "cycle of violence," which has three phases: (1) the
tension-building phase; (2) the acute battering incident; and (3) the

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 JUSTIFYING CIRCUMSTANCES Art. 11
Self-Defense Par. 1

tranquil, loving (or, at least, nonviolent) phase. During the tension-

building phase, minor battering occurs — it could be verbal or slight
physical abuse or another form of hostile behavior. The woman usually
tries to pacify the batterer through a show of kind, nurturing behavior;
or by simply staying out of his way. What actually happens is that she
allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence
exhibited by the batterer. This wish, however, proves to be double-
edged, because her "placatory" and passive behavior legitimizes his
belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal physical
abuse worsens. Each partner senses the imminent loss of control
and the growing tension and despair. Exhausted from the persistent
stress, the battered woman soon withdraws emotionally. But the more
she becomes emotionally unavailable, the more the batterer becomes
angry, oppressive and abusive. Often, at some unpredictable point,
the violence "spirals out of control" and leads to an acute battering
incident.
The acute battering incident is said to be characterized by bru•
tality, destructiveness and, sometimes, death. The battered woman
deems this incident as yet also inevitable. During this
phase, she has no control; only the batterer may put an end to the
violence. Its nature reasons for ending it. The battered woman usually
realizes that she cannot reason with him, and that resistance would
only exacerbate her condition.
At this stage, she has a sense of detachment from the attack
and the terrible pain, although she may later clearly remember
every detail. Her apparent passivity in the face of acute violence may
be rationalized thus: the batterer is almost always much stronger
physically, and she knows from her past painful experience that it is
futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders of are
likely to get hurt.
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that
he has been viciously cruel and tries to make up for it, begging for her
forgiveness and promising never to beat her again. On the other hand,

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Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

the battered woman also tries to convince herself that the battery
will never happen again; that her partner will change for the better;
and that this "good, gentle and caring man" is the real person whom
she loves.
A battered woman usually believes that she is the sole anchor
of the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being.
The truth, though, is that the chances of his reforming, or
seeking or receiving professional help, are very slim, especially if she
remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in
a battered woman's psyche. In this phase, she and her batterer are
indeed emotionally dependent on each for his
behavior, he for her forgiveness. Underneath this miserable cycle of
violence and each partner may believe that
it is better to die than to be separated. Neither one may really feel
independent, capable of functioning without the other." (People vs.
Genosa, G.R. No. 135981, January 15, 2004.)

Effect of Battery on Appellant

Because of the recurring cycles of violence by the
abused woman, her state of mind metamorphoses. In determining
her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately
surrounding the incident. A Canadian court has aptly pointed out
that expert evidence on the psychological effect of battering on wives
and common law partners are both relevant and necessary. "How
can the mental state of the appellant be appreciated without it? The
average member of the public may ask: Why would a woman put up
with this kind of treatment? Why should she continue to live with
such a man? How could she love a partner who beat her to the point
of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose
and make a new life for herself? Such is the reaction of the average
person confronted with the so-called wife
To understand the syndrome properly, however, one's viewpoint
should not be drawn from that of an ordinary, reasonable person. What

192
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

goes on in the mind of a person who has been subjected to repeated,

severe beating may not be consistent comprehensible
those who have not been through a similar experience. Expert opinion
is essential to clarify and refute common myths and misconceptions
about battered women.
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the United
States and the United Kingdom on the treatment and prosecution of
cases, in which a battered woman is charged with the killing of her
violent partner. The psychologist explains that the cyclical nature of
the violence inflicted upon the battered woman immobilizes the latter's
"ability to act decisively in her own interests, making her feel trapped in
the relationship with no means of escape." In her years of research, Dr.
Walker found that "the abuse often escalates at the point of separation
and battered women are in greater danger of dying then."
Corroborating these research findings, Dra. Dayan said that "the
battered woman usually has a very low opinion of herself. She has x
x x self-defeating and self-sacrificing x x x [W]hen the
violence would happen, they usually think that they it,
that they were the one[s] who precipitated the violence that] they
provoke[d] their spouse to be physically, verbally and even sexually
abusive to them."
According to Dra. Dayan, there are a lot of reasons why a
battered woman does not readily leave an abusive partner — poverty,
and guilt arising from the latter's belief that she provoked
the violence, that she has an obligation to keep the family intact at
all cost for the sake of their children, and that she is the only hope
for her spouse to change.
The testimony of another expert witness, Dr. Pajarillo, is also
helpful. He had previously testified in suits involving violent family
relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein
such cases abounded. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office
in Quezon City. As such, he got involved in about forty (40) cases of
severe domestic violence, in which the physical abuse on the woman
would sometimes even lead to her loss of
Dr. Pajarillo explained that "overwhelming brutality, trauma"
could result in post traumatic stress disorder, a from of "anxiety
neurosis or neurologic After being repeatedly and severely

193
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 2 Defense of Relatives

abused, battered persons "may believe that they are essentially

helpless, lacking power to change their x x x [A]cute
battering incidents can have the effect of stimulating the development
of coping responses to the trauma at the expense of the victim's
ability to muster an active response to try to escape further trauma.
Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect."
A study conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that "even if a person has control
over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying
to escape." He said that it was the cognitive
individual's proved all-important. He referred to this phenomenon
helplessness." [T]he truth or facts of a situation turn out
to be less important than the individual's set of beliefs or perceptions
concerning the situation. Battered women don't attempt to leave
the battering situation, even when it may seem to outsiders that
escape is because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
circumstances."
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes
that he is capable of killing her, and that there is no escape. Bat•
tered women feel unsafe, suffer from pervasive anxiety, and usually
fail to leave the relationship. Unless a shelter is available, she stays
with her husband, not only because she typically lacks a means of self-
support, but also because she fears that if she leaves she would be
found and hurt even more. (People vs. Genosa, G.R. No. 135981,
January 15, 2001).

Flight, incompatible with self-defense.

The appellant went into hiding after the hacking incident. Suffice it
to state that flight after the commission of the crime is highly evidentiary
of guilt, and incompatible with self-defense (People vs. G.R.
No. citing People vs. 132 SCRA 116).

Par. 2 - DE FENSE OF
Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by

194
 JUSTIFYING CIRCUMSTANCES
Art. 11
Defense of Relatives
Par. 2

consanguinity within the fourth civil degree, provided that the first
and second requisites prescribed in the next preceding circumstance
are present, and the further requisite, in case the provocation was
given by the person attacked, that the one making defense had no part
therein.

Relatives that can be defended.

1. Spouse.
2. Ascendants.
3. . Descendants.

4. Legitimate, natural or adopted brothers and sisters, or

relatives by affinity in the same degrees.
5. Relatives by consanguinity within the fourth civil degree.
Relatives by affinity, because of marriage, are parents-in-law,
son or daughter-in-law, and brother or sister-in-law.
Death of the spouse terminates the relationship by affinity (Kelly
v. 12 Ark. 667, 659, 56 288; Chase vs. Jennings, 38 Me.
unless the marriage has resulted in issue who is still living, in
which case the relationship of continues. vs. Dear-
10 191; Bigelow vs. Sprague, 140 Mass. 425, 5 NE 144)
Consanguinity refers to blood relatives. Brothers and sisters are
within the second civil degree; uncle and niece or aunt and nephew are
within the third civil degree; and first cousins are within the fourth
civil degree.
Thus, if A acted in defense of the husband of A's sister-in-law,
there is no defense of relative, because the relation between A and
the husband of A's sister-in-law is not one of those mentioned in
paragraph 2 of Article 11. (People vs. Cabellon, 51 Phil. 846) The
husband of A's sister-in-law is a stranger to A for purpose of the law
on defense of relatives.

Basis justification.
The justification of defense of relatives by reason of which the
defender is not criminally liable, is founded not only upon a humani•
tarian sentiment, but also upon the impulse of blood which impels
men to rush, on the occasion of great perils, to the rescue of those
close to them by ties of blood. (Albert)
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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 2 Defense of Relatives

Requisites of defense of relatives:

Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or
repel it; and
In case the provocation was given by the person attacked,
the one making a defense had no part therein. (See People
vs. G.R. No. 72976, July 9, 1990, 187 SCRA 291,
295; People vs. Agapinay, G.R. No. 77776, June 27, 1990,
186 SCRA 812, 823)

First two requisites are the same as those of self-defense.

The meaning of "unlawful aggression" and that of "reasonable
necessity of the means employed to prevent or repel it" are already
explained in the discussion of self-defense.

Defense of relatives also requires that there be unlawful

aggression.
Of the three r eq u i s i t es of defense of relati ves, unl awfu l
aggression is the most essential and primary, without which any
defense is not possible or justified. (People vs. Agapinay, supra)
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. (Balunueco vs. Court of Appeals, G.R. No.
126968, April 9, 2003)
When two persons are gettin g ready to strike each other,
there can be no unlawful aggression, and hence, a relative of
either who butts in and ad mi ni sters a deadly blow on the other
to prevent him from doing harm is not acting in defense of a rela•
tive, but is guilty of homicide. (People vs. Moro Munabe, 46
O.G. 4392 )

196
 JUSTIFYING CIRCUMSTANCES
Art. 11
Defense of Relatives
Par. 2

In this case, when he saw the deceased and his brother facing
each other in a fight, each holding a taki taki, an for up•
rooting rubber seedlings, the accused hit the deceased on the head
with his taki taki, causing the latter's death.
If the accused appears to be the aggressor, he cannot invoke the
defense of having acted in defense of a relative. (People vs.
C.A., 40 O.G. 1477)

Must unlawful aggression exist as a matter of fact, or can it

be made to depend upon the honest belief of the one making
a defense?
Yes, it can be made to depend upon the honest belief of the one
making a defense. (U.S. vs. 17 Phil. 260, 264)
Thus, when A attacked and wounded B with a dagger, causing
the latter to fall down, but B immediately stood up and defended
himself by striking A with a bolo and as a result, A was seriously
wounded and fell in the mud with B standing in front of A in a position
as if to strike again in case A would stand up, there is no doubt that
A was the unlawful aggressor. But when the sons of A came, what
they saw was that their father was lying in the mud wounded. They
believed in good faith that their father was the victim of an unlawful
aggression. If they killed B under such circumstances, they are
justified.

In that case, there was a mistake of fact on the part of the sons
of A.
Even in self-defense, the Supreme Court of Spain held that when
a person while walking at night in an uninhabited place was ordered
by someone to halt and give his money, such person was justified
in shooting that someone, even if he turned out to be a friend, only
playing a practical joke.

Gauge of reasonable necessity of the means employed to repel the ag•

gression.
The gauge of reasonable necessity of the means employed to
repel the aggression as against one's self or in defense of a relative is
to be found in the situation as it appears to the person repelling the
aggression. It has been held time and again that the reasonableness

197
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 2 Defense of Relatives

of the means adopted is not one of mathematical calculation or

rial commensurability between the means of attack and but
the imminent danger against the subject of the attack as perceived
by the defender and the instinct more than reason that moves the
defender to repel the attack. (Eslabon vs. People, No. Feb.
24, 1984, 127 SCRA 785, 790-791)

Third requisite of defense of relative.

The clause, "in case the provocation was given by the person
attacked," used in stating the third requisite of defense of relatives,
does not mean that the relative defended should give provocation to
the aggressor. The clause merely states an event which may or may
not take place.
The phrase "in case" means "in the event that."
There is still a legitimate defense of relative even if the relative
being defended has given provocation, provided that the one defend•
ing such relative has no part in the provocation.

Reason for the rule:

That although the provocation prejudices the person who gave
it, its effects do not reach the defender who took no part therein, be•
cause the latter was prompted by some noble or generous sentiment
in protecting and saving a relative.

When the third requisite is lacking.

The accused was previously shot by the brother of the victim. It
cannot be said, therefore, that in attacking the victim, the accused
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 them. (People vs. Toring, G.R. No. 56358, Oct.
26, 1990, 191 SCRA 38, 47)

The fact that the relative defended gave provocation is im•

material.
Thus, even if A had slapped the face of B who, as a consequence
of the act of A, immediately commenced to retaliate by drawing a

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Defense of Stranger
Par. 3

knife and trying to stab A, and C, father of A, killed B in defense of

his son, C is completely justified, notwithstanding the fact that the
provocation was given by his son A.

But if C had induced his son A to injure B, thereby taking part

in the provocation made by A, C would not be completely justified
in killing B while the latter was about to stab A, because the third
requisite of defense of relative is lacking.
Suppose, the person defending his relative was also induced by
revenge or hatred, would there be a legitimate defense of relative?
As long as the three requisites of defense of relatives are present, it
will still be a legitimate defense.

Examples of defense of relatives.

1. The accused, at a distance of about 20 from his house,
heard his wife shouting for help. He rushed to the house and
once inside saw the deceased on top of his wife. He drew his
bolo and hacked the deceased at the base of his neck when the
latter was forcibly abusing his wife. (People vs. Ammalun, C.A.,
51 O.G. 6250)

2. Domingo Rivera challenged the deceased to prove who of them

was the better man. When the deceased picked up a bolo and
went after him, Domingo Rivera took to flight. The deceased
pursued him and upon overtaking him inflicted two wounds.
Antonio Rivera, father of Domingo, rushed to his son's assistance
and struck with a cane the bolo from the hands of the deceased.
Domingo Rivera inflicted fatal wounds upon the While
the son was originally at fault for giving provocation to the de•
ceased, yet the father was justified in disarming the deceased,
having acted in lawful defense of his son. But Domingo Rivera
was declared guilty of the crime of homicide. (U.S. vs. Rivera,
26 Phil. 138)

Par. 3 - DEFENSE OF STRANGER.

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.

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Art. JUSTIFYING CIRCUMSTANCES
Par. 3 Defense of Stranger

Requisites:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or
repel it; and
3. The person defending be not induced by revenge, resentment,
or other evil motive. (See People vs. Moral, No.
Oct. 12, 1984, 132 SCRA 474, 485)
Note that the first two requisites are the same as those of self-
defense and defense of relatives.

Basis of defense of stranger.

What one may do in his defense, another may do for him. Persons
acting in defense of others are in the same condition and upon the
same plane as those who act in defense of themselves. The ordinary
man would not stand idly by and see his companion killed without
attempting to save his life. (U.S. vs. 38 Phil. 10, 13)

Third requisite of defense of stranger.

This Code requires that the defense of a stranger be actuated
by a disinterested or generous motive, when it puts down "revenge,
resentment, or other evil as illegitimate. (Albert)

Who are deemed strangers?

Any person not included in the enumeration of relatives
mentioned in paragraph 2 of this article, is considered stranger for
the purpose of paragraph 3. Hence, even a close friend or a distant
relative is a stranger within the meaning of paragraph 3.

The person defending "be not induced."

Paragraph 3 of Art. 11 uses the phrase "be not induced." Hence,
even if a person has a standing grudge against the assailant, if he
enters upon the defense of a stranger out of generous motive to save
the stranger from serious bodily harm or possible death, the third
requisite of defense of stranger still exists. The third requisite would
be lacking if such person was prompted by his grudge against the as•
sailant, because the alleged defense of the stranger would be only a
pretext.

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 JUSTIFYING CIRCUMSTANCES
Art. 11
Avoidance of Greater Evil or Injury
Par. 4

If in defending his wife's brother-in-law, the accused acted also

from an impulse of resentment against the deceased, the third req•
uisite of defense of stranger is not present. (People vs. Cabellon and
Gaviola, 51 Phil. 851)

Examples of defense of stranger:

1. A was able to deprive B, a constabulary lieutenant, of his pistol

during the fray. B ordered C, a constabulary soldier under his
command, to search A for the pistol. When C was about to ap•
proach A to search him, the latter stepped back and shot at C
who was able to avoid the shot. When A was about to fire again
at C, D, another constabulary soldier, fired at A with his rifle
which killed him.

Held: D was justified in killing A, having acted in defense of

stranger. (People vs. et 66 Phil. 638)
2. A heard screams and cries for help. When A responded, he saw
B attacking his (B's) wife with a dagger. A approached B and
struggled for the possession of the weapon, in the course of which
A inflicted wounds on B.

Held: A acted in defense of a stranger. (People vs. Valdez, 58

Phil. 31)

Furnishing a weapon to one in serious danger of being throttled is

defense of stranger.
A Japanese hit an old man 78 years of age on the face, shoved
him to the ground and attempted to choke him. The accused furnished
the old man with a small gaff, used by game cocks, with which the
old man killed his assailant. The accused was justified in furnishing
the old man with the gaff, it being in defense of stranger. (U.S. vs.
Subingsubing, 31 Phil. 376)

Par. 4 - AVOIDANCE OF GREATER EVIL OR INJURY.

Any person who, in order to avoid an evil or injury, does an
act which causes damage to another, provided that the following
requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to
avoid it;

201
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 4 Avoidance of Greater Evil or Injury

Third. That there be no other practical and less harmful

means of preventing it.

"Damage to
This term covers injury to persons and damage to property.
The Court of Appeals applied paragraph 4 of Art. in a case
of slander by deed, a crime against honor, where the accused (a
woman) who was about to be married to the offended party eloped
with another man, after the offended had made preparations
for the wedding, the Court holding that there was a necessity on the
part of the accused of avoiding a loveless marriage with the offended
party, and that her refusal to marry him and her eloping with the
man whom she loved were justified and did not amount to the crime of
slander by deed. (People vs. Norma Hernandez, C.A., 55 O.G. 8465)

the evil sought to be avoided actually exists."

The evil must actually exist. If the evil sought to be avoided

is merely expected or anticipated or may happen in the future,
paragraph 4 of Art. is not applicable.

Example of injury to person under paragraph 4:

A person was driving his car on a narrow road with due diligence
and care when suddenly he saw a "six by six" truck in front of his car.
If he would swerve his car to the left he would fall into a precipice, or
if he would swerve it to the right he would kill a passer-by. He was
forced to choose between losing his life in the precipice or sacrificing
the life of the innocent bystander. He chose the latter, swerved his
car to the right, ran over and killed the passer-by. (Guevara)
In view of this example and the principle involved, the killing
of the foetus to save the life of the mother may be held excusable.

"That the injury feared be greater than that done to avoid it."
Does the foregoing example violate the second condition required
by the Code, that is, that the injury feared be greater than that done
to avoid
No, because the instinct of self-preservation will always make
one feel that his own safety is of greater importance than that of
another.

202
 JUSTIFYING CIRCUMSTANCES
Art. 11
Avoidance of Greater Evil or Injury
Par. 4

The greater evil should not be brought about by the negligence or

imprudence of the actor.
Thus, if in the example above, the driver drove his car at full
speed, disregarding the condition of the place, and although he
saw the "six by six" truck at a distance 500 meters away, he did
not slacken his speed, he cannot invoke paragraph 4 of this article,
because the state of necessity was brought about by his own reckless
imprudence.

When the accused was not avoiding any evil, he cannot invoke the
justifying circumstance of avoidance of a greater evil or injury.
Pio with a bolo and Severo with an axe attacked Geminiano
who was wounded. Nearby, Juan embraced Marianito, Geminiano's
son, who had a gun slung on his shoulder, and grappled with him.
Geminiano died. Pio, Severo and Juan were prosecuted for murder.
Juan invoked the justifying circumstance of avoidance of a greater evil
or injury (Par. 4, Article in explaining his act of preventing
Marianito from shooting Pio and Severo.

Held: His reliance on that justifying circumstance is

The act of Juan in preventing Marianito de Leon from
shooting and Severo Padernal, who were the aggressors,
was designed to insure the killing of Geminiano de Leon without any
risk to his assailants. Juan Padernal was not avoiding any evil when
he sought to disable Marianito. (People vs. Ricohermoso, et 56
SCRA 431)

Note: Even if Marianito was about to shoot Pio and Severo,

his act, being in defense of his father, is not an evil that
could justifiably be avoided by disabling Marianito.

Examples of damage to property under paragraph 4:

1. Fire breaks out in a cluster of nipa houses, and in order to
prevent its spread to adjacent houses of strong materials, the
surrounding nipa houses are pulled down. (Albert)
2. Where a truck of the Standard Vacuum Oil Co. delivering
gasoline at a gas station caught fire and, in order to prevent
the burning of the station, the truck was driven to the middle
of the street and there abandoned, but it continued to move and

203
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
thereafter crashed against and burned a house on the other side
of the street, the owner of the house had a cause of action against
the owner of the gas station under paragraph 2 of Art. 101, in
relation to paragraph 4 of Art. 11. (Tan vs. Standard Vacuum
Oil Co., 91 Phil. 672)
3. During the storm, the ship which was heavily loaded with goods
was in danger of sinking. The captain of the vessel ordered
part of the goods thrown overboard. In this case, the captain
is not criminally liable for causing part of the goods thrown
overboard.

The evil which brought about the greater evil must not result from a
violation of law by the actor.
Thus, an escaped convict who has to steal clothes in order to
move about unrecognized, does not act from necessity. (Albert) He is
liable for theft of the clothes.

There is civil liability under this paragraph.

Although, as a rule there is no civil liability in justifying cir•
cumstances, it is only in paragraph 4 of Art. where there is civil
liability, but the civil liability is borne by the persons benefited.
In cases falling within subdivision 4 of Article the persons for
whose benefit the harm has been prevented, shall be civilly liable in
to the benefit which they may have received. (Art. 101)

Par. 5. - FULFILLMENT OF DUTY OR LAWFUL

EXERCISE OF RIGHT OR OFFICE.
Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.

Requisites:
That the accused acted in the performance of a duty or in
the lawful exercise of a right or
2. 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. (People vs. Oanis,
74 Phil. 257, 259; People vs. Pajenado, No. L-26458, Jan.
30, 1976, 69 SCRA 172, 177)

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 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
In the case of People vs. Oanis, supra, the first requisite is
present, because the accused peace officers, who were trying to get a
wanted criminal, were acting in the performance of a duty.
The second requisite is not present, because through impatience,
over-anxiety, or in their desire to take no chances, the accused ex•
ceeded in the fulfillment of their duty when they killed a sleeping
person whom they believed to be the wanted criminal without making
any previous inquiry as to his identity.

Fulfillment of duty.
People vs. Felipe
(46 Phil. 738)
Facts: Lorenzo Napilon escaped from the jail where he was serving
sentence.
Some days afterwards the policeman, Felipe Delima, who was
looking for him, found him in the house of Jorge armed with
a pointed piece of bamboo in the shape of a lance, and demanded
his surrender. The fugitive answered with a stroke of his lance. The
policeman dodged it, and to impose his authority fired his revolver,
but the bullet did not hit him. The criminal ran away, without parting
with his weapon. The peace officer went after him and fired again his
revolver, this time hitting and killing him.
The policeman was tried and convicted by the Court of First
Instance of homicide and sentenced to temporal and the
accessory penalties.
Held: The killing was done in the performance of a duty. The
deceased was under the obligation to surrender, and had no right, after
evading service of his sentence, to commit assault and disobedience
with a weapon in his hand, which compelled the policeman to resort
to such an extreme means, which, although it proved to be fatal, was
justified by the circumstances.
Article 8, No. 11 of the Penal Code (Art. 11, par. 5, Revised Penal
Code) being considered, Felipe Delima committed no crime, and he is
hereby acquitted with costs de
Ruling in Delima case, applied to the case of a guard who killed a
detained prisoner while escaping.
If a detained prisoner under the custody of the accused, a
man detailed to guard him, by means of force and violence, was able

205
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
to leave the cell and actually attempted to escape, notwithstanding
the warnings given by the accused not to do so, and was shot by the
accused, the latter is entitled to acquittal in accordance with the
ruling laid down in People vs. Delima, 46 Phil. 738. (People vs. Bisa,
C.A., 51 O.G. 4091)

Ruling in the Delima case, applied to a case where an

escaping detainee charged with a relatively minor offense
of stealing a chicken was shot to death by a policeman.
In this case, four members of the police force went after him
as soon as the detention prisoner had escaped. When the escaping
detainee saw one of the policemen, he lunged at the latter, hitting
him with a stone on the right cheek, as a consequence of which he
fell down, and while in that position on the ground, he was again
struck with a stone by the escaping detainee; thereafter, the latter
ran away pursued by the policeman and his in the course
of the pursuit, the policeman fired a warning shot into the air, and as
the escaping detainee paid no heed to this, the policeman fired into
the air four times more and kept on pursuing him; as the latter was
apparently widening the distance between them, and fearing that
he might finally be able to elude arrest, the policeman fired directly
at him while he was in the act of jumping again into another part of
the creek, the shot having hit him on the back. (Valcorza vs. People,
30 SCRA 148-150)

People vs. Lagata

(83 Phil. 159)

Facts: When the guard called his order to assemble, one of the
prisoners was missing. So, he ordered the others to look for him. The
other prisoners scampered. The guard fired at two of the prisoners,
wounding one and killing the other (Tipace). His reason was
to prevent the attempt of the prisoners to escape.
Held: As regards the shooting of Abria and Tipace, we are con•
vinced that the facts were as narrated by the witnesses for the pros•
ecution. Abria was shot when he was only three meters away from
the guard and the defense has not even shown that Abria attempted
to escape. Tipace was also shot when he was about four or five meters
away from the guard. The latter's allegation that Tipace was running,
— conveying the idea that said prisoner was in the act of escaping,

206
 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
— appears to be inconsistent with his own testimony to the effect that
Tipace was running sidewise, with his face looking towards him (the
guard), and with the undisputed fact that Tipace was hit near one axilla,
the bullet coming out from the opposite shoulder. If Tipace's purpose
was to escape, the natural thing for him to do would have been to give
his back to the guard.
It is clear that the guard had absolutely no reason to fire at Tipace.
The guard could have fired at him in self-defense or if absolutely neces•
sary to avoid his escape.

Five Justices believed that the prisoner who was killed was not
escaping. The four Justices who dissented believed that the prisoner
was escaping or running away when he was shot by the guard. All
the Justices agreed that a guard is justified in shooting an escaping
prisoner.

In the case of U.S. vs. Magno, et 8 Phil. 314, where the

prisoner attempted to escape, and the Constabulary soldiers, his
custodians, shot him to death in view of the fact that the prisoner,
disregarding the warning of his custodians, persisted in his attempt
to escape, and there was no other remedy but to fire at him in order
to prevent him from getting away, it was held that the Constabu•
lary soldiers acted in the fulfillment of duty and, therefore, were not
criminally liable.

Shooting an offender who refused to surrender is justified.

In the case People vs. Gayrama, 60 Phil. 796, where the ac•
cused, who had slashed with a bolo the municipal president on his
arm, ran away and refused to be arrested, it was stated that if the
chief of police had been armed with a revolver and had used it against
the accused, the act of the chief of police under those circumstances
would have been fully justified.
The reason for this is that it is the duty of peace officers to ar•
rest violators of the law not only when they are provided with the
corresponding warrant of arrest but also when they are not provided
with said warrant if the violation is committed in their own presence;
and this duty extends even to cases the purpose of which is merely to
prevent a crime about to be consummated. (U.S. vs. 1 Phil.
47; U.S. vs. Resaba, 1 Phil. 311; U.S. vs. Vallejo, 11 Phil. 193; U.S.
vs. Santos, 36 Phil. 853)

207
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
But shooting a thief who refused to be arrested is not
A security guard accosted a thief who had stolen ore in the tun•
nel of a mining company. The thief tried to flee. The security guard
ordered him to stop, but the latter disregarded the order. The security
guard fired four shots into the air with his carbine to scare the thief
and to stop him. As the thief continued to flee, saying that he would
not stop even if he died, the security guard fired a fifth shot directed
at the leg of the thief, but the bullet hit him in the lumbar region.
The thief died.
Held: The security guard acted in the performance of his duty,
but he exceeded the fulfillment of his duty by shooting the deceased.
He was adjudged guilty of homicide. (People vs. Bentres, C.A., 49
O.G. 4919)
In the case People vs. Oanis, supra, it was held that although
an officer in making a lawful arrest 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, yet he is never justified in
using unnecessary force or in treating him with wanton violence, or
in resorting to dangerous means when the arrest could be effected
otherwise. (6 par. 13, p. 612) The doctrine is restated in the
Rules of Court thus: "No violence or unnecessary force shall be used
in making an arrest, and the person arrested shall not be subject to
any greater restraint than is necessary for his detention." (Rule 113,
Sec. 2, par. 2)

Legitimate performance of duty.

When the victim without apparent reason, but probably due
to drunkenness, fired his gun several times at the Vista Club,
the accused and his partner had to intervene for they were with the
They would have been remiss in their duty if they did not. True,
the deceased companion of the accused shot the victim who died as a
result. But it would be doing injustice to a deceased agent of the law
who cannot now defend himself to state that when he approached the
trouble making victim he had a preconceived notion to kill. It must be
presumed that he acted pursuant to law when he tried to discharge his
duty as an NBI agent and that the killing of the victim was justified
under the circumstances. The same is true for the accused. (People
vs. Cabrera, No. Oct. 28, 1980, 100 SCRA 424, 431)

208
 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
Illegal performance of duty.
The defense of fulfillment of a duty does not avail. The attitude
adopted by the deceased in putting his hands in his pocket is not
sufficient to justify the accused to shoot him. The deceased was
unarmed and the accused could have first warned him, as the latter
was coming towards him, to stop where he was, raise his hands, or do
the things a policeman is trained to do, instead of mercilessly shooting
him upon a mere suspicion that the deceased was armed. (People vs.
Tan, No. L-22697, Oct. 5, 1976, 73 SCRA 288, 292-293)

We find the requisites absent in the case at bar. Appellant was

not in the of his duties at the time of the shooting for the
reason that the girls he was attempting to arrest were not committing
any act of prostitution in his presence. If at all, the only person he was
authorized to arrest that time was Roberto Reyes, who offered
him the services of a prostitute, for acts of vagrancy. Even then, the
fatal injuries that the appellant caused the victim were not a necessary
consequence of appelant's performance of his duty as a police officer.
The record shows that appellant shot the victim not once but twice after
a heated confrontation ensued between them. His duty to arrest the
female suspects did not include any right to shoot the victim to death.
(People vs. Peralta, G.R. No. 128116, January 24, 2001)

Distinguished from self-defense and from consequence of

felonious act.
Fulfillment of duty to prevent the escape of a prisoner is different
from self-defense, because they are based on different principles.
In the case of People us. Delima, supra, the prisoner who attacked
the policeman with "a stroke of his lance" was already running away
when he was shot, and, hence, the unlawful aggression had already
ceased to exist; but the killing was done in the performance of a duty.
The rule of self-defense does not apply.
The public officer acting in the fulfillment of a duty may appear
to be an aggressor but his aggression is not unlawful, it being neces•
sary to fulfill his duty.
Thus, when the guard levelled his gun at the escaping prisoner
and the prisoner grabbed the muzzle of the gun and, in the struggle
for the possession of the gun, the guard jerked away the gun from the
hold of the prisoner, causing the latter to be thrown halfway around,
and because of the force of the pull, the guard's finger squeezed the

209
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
trigger, causing it to fire, hitting and killing the prisoner, the guard
was acting in the fulfillment of duty. (People vs. Bisa, C.A., 51 O.G.
4091)
In either case, if the accused were a private person, not in the
performance of a duty, the result would be different. In the first
case, there would be no self-defense because there is no unlawful
aggression. In the second case, the one pointing the gun at another
would be committing a (grave threat under Art. 282)
For instance, A levelled his gun at B, threatening the latter
with death. B grabbed the muzzle of the gun and in the struggle for
the possession of the gun, A squeezed the trigger causing it to fire,
hitting and killing B. In this case, A is criminally liable under Art.
4, par. 1, in relation to Art. 282 and Art. 249.

Lawful exercise of right or office.

Of right.
Under the Civil Code (Art. 429), the owner or lawful possessor
of a thing has the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use such force as may
be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property.
If in protecting his possession of the property he injured (not
seriously) the one trying to get it from him, he is justified under this
paragraph.

Under this paragraph (lawful exercise of a right), it is not

necessary that there be unlawful aggression against the person
charged with the protection of the property. If there is unlawful
aggression against the person charged with the protection of the
property, then paragraph 1 of Art. applies, it being a defense of
right to property.

Doctrine of "self-help" under Art. 429, Civil Code, applied

in Criminal Law.

People vs. Depante

58 O.G. 926)
Facts: At about 9 o'clock in the morning of December 29, 1958,
while Mariano Depante was in a Chinese store, Paciencia Iquiran, his

210
 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
saw him holding a five-peso bill in his left hand. Mariano had
just bought a package of cigarettes and the five-peso bill he was holding
was part of the change he had just received from the storekeeper.
Paciencia, who was in a bad mood because Mariano had not given her
support for sometime, approached him and after uttering insulting
words, grabbed the five-peso bill from Mariano's hand. When he acted
to recover the same, she grabbed his shirt, tearing the same. Mariano
gave her fist blows on the forehead, on the right side of the head and
on the middle part of her left arm, knocking her down. He was able to
regain possession of the five-peso bill.
Was the act of Paciencia in grabbing the five-peso bill an actual
or threatened unlawful physical invasion or usurpation of Mariano
Depante's property? We find that it was. More than that, the act could
be attempted robbery. The fact that Paciencia was a querida and that
Mariano had not supported her for sometime was not an exempting
or justifying circumstance. Robbery can even be committed by a wife
against her husband. Only theft, swindling and malicious mishief can•
not be committed by a wife against her husband. (Art. 332, Revised
Penal Code)
Did Mariano use such force as was reasonably necessary to re•
pel or prevent the actual or threatened unlawful physical invasion or
usurpation of his property? On this point, we find that he cannot claim
full justification, for the three fist blows which rendered Paciencia
unconscious for sometime were not reasonable, considering the sex of
the complainant. Hence, appellant is criminally liable. However, his
criminal liability may be mitigated under Article 69 of the Revised
Penal Code.
Held: The requisites mentioned in Art. 429, Civil Code, in relation
to Art. 11, paragraph 5, Revised Penal Code, to justify the act not being
all present, a penalty lower by one or two degrees than that prescribed
by law may be imposed.

The actual invasion of property may consist of a mere distur•

bance of possession or a real dispossession.
If it is mere disturbance of possession, force may be used against
it at any time as long as it continues, even beyond the prescriptive
period for an action of forcible entry. Thus, if a ditch is opened by
Pedro in the land of Juan, the latter may close it or cover it by force
at any time.
If the invasion, however, consists of a real dispossession, force
to regain possession can be used only immediately after the dispos-

211
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 6 Obedience to an Order Issued for
Some Lawful Purpose
session. Thus, if Juan, without the permission of Pedro, picks up a
book belonging to the latter and runs off with it, Pedro can pursue
Juan and recover the book by force.
If the property is immovable, there should be no delay in the
use of force to recover it; a delay, even if excusable, such as when due
to the ignorance of the dispossession, will bar the right to the use of
force. Once the usurper's possession has become firm by the lapse of
time, the lawful possessor must resort to the competent authority
to recover his property. (Tolentino's comment on Article 429 of the
new Civil Code, Vol. II, p. 54, citing 3-1 and Wolff
92-93)

Of right
The exercise of a statutory right to suspend installment pay•
ments under Section 23 of P.D. 957 is a valid defense against the
purported violations of 22 that petitioner is charged with.
Petitioner's exercise of the right of a buyer under Article 23 of P.D.
No. 957 is a valid defense to the charges against him. (Sycip vs. Court
of Appeals, G.R. No. 125059, March 17, 2000)

office.
The executioner of the Bilibid Prison cannot be held liable for
murder for the execution by him because he was merely
acting in the lawful exercise of his office. (Guevara)
A surgeon who amputated the leg of a patient to save him from
gangrene is not liable for the crime of mutilation, because he was
acting in the lawful exercise of his office.

Par. 6. - OBEDIENCE TO AN ORDER ISSUED FOR SOME

LAWFUL PURPOSE.

Any person who acts in obedience to an order issued by a

superior for some lawful purpose.

Requisites:
1. That an order has been issued by a superior.
2. That such order must be for some lawful purpose.

212
 JUSTIFYING CIRCUMSTANCES Art. 11
Obedience to an Order Issued for Par. 6
Some Lawful Purpose
3. That the means used by the subordinate to carry out said
order is lawful.

Both the person who gives the order and the person who executes
it, must be acting within the limitations prescribed by law. (People
vs. Wilson and Dolores, 52 Phil. 919)

Example of absence of the third requisite.

The court ordered that the convict should be executed on a

certain date. The executioner put him to death on a day earlier than
the date fixed by the court.

The execution of the convict, although by virtue of a lawful

order of the court, was carried out against the provision of Art. 82.
The executioner is guilty of murder.

When the order is not for a lawful purpose, the subordinate

who obeyed it is criminally liable.
(1) One who prepared a falsified document with full knowledge of
its falsity is not excused even if he merely acted in obedience to
the instruction of his superior, because the instruction was not
for a lawful purpose. (People vs. Barroga, 54 Phil. 247)
(2) A soldier who, in obedience to the order of his sergeant, tortured
to death the deceased for bringing a kind of fish different from
that he had been asked to furnish a constabulary detachment, is
criminally liable. Obedience to an order of a superior is justified
only when the order is for some lawful purpose. The order to
torture the deceased was illegal, and the accused was not bound
to obey it. (People vs. Margen, et 85 Phil. 839)

The subordinate is not liable for carrying out an illegal

order of his superior, if he is not aware of the illegality of
the order and he is not negligent.
When the accused acted upon orders of superior officers, which
he, as military subordinate, could not question, and obeyed the orders
in good faith, without being aware of their illegality, without any fault
or negligence on his part, he is not liable because he had no criminal
intent and he was not negligent. (People vs. Beronilla, 96 Phil. 566)

213
Art. 12 EXEMPTING CIRCUMSTANCES
Imbecility or Insanity

II. E x e m p t i n g c i r c u m s t a n c e s . 1. Defi n i ti on

Exempting circumstances are those grounds for exemption

from punishment because there is wanting in the agent of the crime any of the
conditions which make the act voluntary or negligent.
2. Ba s i s
The exemption from punishment is based on the com• plete absence of
intelligence, freedom of action, or intent, or on the absence of negligence on the
part of the accused.
Under the Revised Penal a person must act with malice or negligence to be
criminally liable. One who acts without intelligence, freedom of action or intent
does not act with malice. On the other hand, one who acts without intelligence,
freedom of action or fault does not act with negligence.

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