CHAPTER TWO:

JUSTIFYING CIRCUMSTANCES AND

CIRCUMSTANCES WHICH EXEMPT
FROM CRIMINAL LIABILITY
 The circumstances affecting
criminal liability are:
I. Justifying circumstances (Art. 11)
II. Exempting circumstances (Art.12), and other
absolutory causes (Arts. 20, 124, last par.; 280,
last par.; 332; 344, etc.)
III. Mitigating circumstances (Art. 13)
IV. Aggravating circumstances (Art. 14)
V. Alternative circumstances (Art. 15)
 Imputability
• Imputabilityis 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. (REYES,
The Revised Penal Code, Book One, 19th ed., 2017, [hereinafter,
REYES, Book One], p. 149)
 Responsibility
• Responsibilityis the obligation of suffering the
consequences of crime. It is the obligation of
taking the penal and civil consequences of the
crime. (REYES, supra at 149)
 Imputability, distinguished from
responsibility
• While
imputability implies that a deed may be
imputed to a person, responsibility implies that
the person must take the consequences of such
a deed. (REYES, supra at 149)
 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. (REYES, supra at 149)
 I. Justifying 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 to not have transgressed the law and is
free from both criminal and civil liability
2. Basis – the law recognizes the non-existence of
a crime by expressly stating in the opening
sentence of Art. 11 that the persons therein
mentioned “do not incur any criminal liability”
(REYES, supra at 150)
Art. 11. Justifying circumstances. – The
following do not incur any criminal liability:

1. Anyone who acts in defense of 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 person defending himself.
2. 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 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.
3. Anyone who acts in defense of the person
or rights of a stranger, provided that the first
and second requisites mentioned in the first
circumstance of this article are present and
that the person defending be not induced by
revenge, resentment or other evil motive.
4. 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;

Third. That there be no other practical and less

harmful means of preventing it.
5. Any person who acts in the fulfillment of a
duty or in the lawful exercise of a right or
office.

6. Any person who acts in obedience to an

order issued by a superior for some lawful
purpose.
What are justifying circumstances?
• Thosewherein the acts of the actor are in
accordance with law and hence, he incurs no
criminal liability. Since there is no crime,
there is no criminal, hence, he should not be
called an “offender” but an “actor”. And
therefore, no civil liability either. (BOADO, Notes
and Case on the Revised Penal Code, 2012, [hereinafter,
BOADO], p.84)
 There is no crime committed, the act
is being justified
• Instating that the persons mentioned therein
“do not incur any criminal liability,” Article 11
recognizes the acts of such persons as justified.
Such persons are not criminals, as there is no
crime committed. (REYES, supra at 151)
 Burden of proof
• Thecircumstances mentioned in Art. 11 are
matters of defense and it is incumbent upon the
accused, in order to avoid criminal liability,
to prove the justifying circumstance claimed
by him to the satisfaction of the court. (REYES, supra
at 151)
 The following are justifying
circumstances:
a. Defense of self, of relatives, and of strangers;
b. State of necessity;
c. Fulfillment of duty;
d. Obedience to superior order. (BOADO, supra at 84)
 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. (People v. Samson, 189 SCRA 700, 704)
 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.
• “Asidefrom 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.”
(1 Viada, 172, 173, 5th Edition)
 Reason why penal law makes self-
defense lawful
• Thelaw 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 right from impending danger
or peril; it is based on impulse of self-
preservation born to man and part of his
nature as human being. (Castanares v. Court of Appeals,
Nos. L-41269-70, August 6, 1979, 92 SCRA 567, 571-572)
 Requisites of self-defense
1. Unlawful aggression;
2. Reasonable necessity of the means employed
to prevent or repel it;
3. Lack of sufficient provocation on the part of
the person defending himself
 First requisite of self-defense
• The
first requisite of self-defense is that there
be unlawful aggression on the part of the
person injured or killed by the accused.
 Unlawful aggression is an
indispensable requisite
• The
presence of unlawful aggression is a
condition sine qua non in invoking the
justifying circumstance of self-defense.
• There
can be no self-defense, complete or
incomplete, unless the victim has committed an
unlawful aggression against the person
defending himself. (People v. Sazon, G.R. No. 89684,
September 18, 1990, 189 SCRA 700, 704)
 Unlawful aggression is an
indispensable requisite
• If
there is no unlawful aggression, there is
nothing to prevent or repel. The second
requisite of defense will have no basis. (REYES,
supra at 154)
 Aggression must be unlawful
• There are two kinds of aggression: (1) lawful; and
(2) unlawful.
• 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. (REYES, supra at 154)
 Meaning of unlawful aggression
• Unlawfulaggression is equivalent to assault or at
least threatened assault of an immediate and
imminent kind. (People v. Alconga, 78 Phil. 366)
• Thereis 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 v. Crisostomo, No. L-38180,
October 23, 1981)
 Meaning of unlawful aggression
• Theremust be an actual physical assault upon a
person, or at least a threat to inflict real injury.
• Incase of threat, the same must be offensive and
positively strong, showing the wrongful intent to
cause an injury. (U.S. v. Guysayco, 13 Phil. 292, 295) A
mere threatening or intimidating attitude is not
sufficient; there must be a real danger to life or
personal safety. (People v. Nabayra, October 1991)
 Meaning of unlawful aggression
• Unlawful
aggression must be real or at least
imminent.
• Realaggression – an attack with physical force
or with a weapon such as to cause injury or danger
to the life or personal safety (BOADO, supra at 85)
– the danger must be present, actually in existence –
actual aggression (REYES, supra at 157)
Meaning of unlawful aggression
• Imminent unlawful aggression – an attack that
is impending or at the point of happening. It must
be offensive and positively wrong. (BOADO, supra at
85)
–It is not required that the attack already begins,
for it may be too late.
 Peril to one’s limb
• Whena person is attacked, he is in imminent
danger of death or bodily harm.
• The blow with a deadly weapon may be aimed at
the vital parts of his body, in which 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.
(REYES, supra at 159)
 Peril to one’s limb
• The
peril to one’s limb may also be actual or only
imminent.
• Anattack with fist blows may imperil one’s safety
from physical injuries. Such an attack is unlawful
aggression. (People v. Montalbo, 56 Phil. 443)
 There must be actual physical 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. v. Carrero,
9 Phil. 544)
There must be actual physical force
or actual use of weapon
•Alight push on the head with the hand does not
constitute unlawful aggression. (People v. Yuman, 61
Phil. 786)
• But
a slap on the face is an 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, a
defiance, of an individual’s personality. (People v. Sabio,
G.R. No. L-23734, April 24, 1967)
 There must be actual physical force
or actual use of weapon
• Mere belief of an impending attack is not
sufficient.
• “Foot-kick greeting” is not unlawful aggression
– It may be a mere slight provocation (People v. Sabio, 19
SCRA 901)
 Retaliation is not self-defense
• Retaliation is different from an act of self-defense.
• Inretaliation, the aggression that was begun by the
injured party already ceased to exist when the
accused attacked him.
• Inself-defense, the aggression was still existing
when the aggressor was injured or disabled by the
person making a defense.
• Retaliation is not a justifying circumstance. (REYES,
supra at 161-162)
What is the rule when aggression
ceased to exist?
• When aggression ceased to exist, there is no
more necessity for self-defense.
• When the aggression no longer exists, such as
when the aggressor ran away after the attack
or when the defender was able to wrest the
weapon from the aggressor, there is no need for
self-defense. The alleged defender in turn
becomes the aggressor if he would continue the
attack. (BOADO, supra at 86)
 The attack made by the deceased and
the killing of the deceased by the
defendant should succeed each other
without appreciable interval of time
• Inorder 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 made by the deceased, or at
least both acts succeeded each other without
appreciable interval of time. (U.S. v. Ferrer, 1 Phil. 56)
The attack made by the deceased and
the killing of the deceased by the
defendant should succeed each other
without appreciable interval of time
• Whenthe 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. (REYES, supra at 162)
 The unlawful aggression must come
from the person who was attacked by
the accused
• Inorder to constitute self-defense, the unlawful
aggression must come, directly or indirectly,
from the person who was subsequently attacked
by the accused.
• Norcan the element of unlawful aggression be
considered present when the author thereof is
unknown. (People v. Gutierrez, 53 Phil. 609, 611)
 The unlawful aggression must come
from the person who was attacked by
the accused
• Thealleged act of the victim in placing his hand
in his pocket as if he was 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. (People v.
Calantoc, No. L-27892, January 31, 1974)
 A public officer exceeding his authority
may become an unlawful aggressor
• Thus,
a provincial sheriff who, in carrying out
the a writ of execution, exceeded his authority
by taking against the will of the judgment
debtor personal property with sentimental
value to the latter, although other personal
property sufficient to satisfy the claim of the
plaintiff was made available to the said sheriff,
was an unlawful aggression and the debtor had
a right to repel it. (People v. Hernandez. 59 Phil. 343)
 Nature, character, location, and extent
of wound of the deceased/victim may
belie claim of self-defense
• The presence of a large number of wounds on
the part of the victim negates self-defense and
instead indicates a determined effort on the
part of the offender to kill the victim.
• The claim of self-defense can be belied by
physical evidence. Thus, the number, location
and nature of wounds would reveal whether it
was self-defense or intent to kill. (BOADO, supra at
87)
 Nature, character, location, and extent
of wound of the deceased/victim may
belie claim of self-defense
Examples:
–One of the victims alone sustained 21 wounds.
(People v. Batas, 176 SCRA 46, 53, 54)
–The deceased suffered three stab wounds, two of
which were fatal, and one incised wound. (People v.
Marciales, 166 SCRA 436, 443)
–The deceased was struck from behind or while his
body was in a reclining position. (People v. Tolentino,
54 Phil. 77, 80)
The fact that the accused declined to
give any statement when he surrendered
to a policeman is inconsistent with the
plea of self-defense
• Whenthe 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 to defend himself.
(People v. Manansala, 31 SCRA 401, 404)
 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 that success of the attack
already begin by him, the unlawful
aggression is considered continuing, and
the one making a defense has a right to pursue
him in his retreat and to disable him. (REYES,
supra at 168)
 No unlawful aggression when there
is agreement to fight
• Nounlawful aggression in concerted fight, as
when the accused and the deceased, after an
altercation in a bar, agreed to fight. It was held
that the aggression was reciprocal and
legitimate as between two contending
parties. (U.S. v. Navarro, 7 Phil. 713)
 No unlawful aggression when there
is agreement to fight
• There is agreement to fight.
– 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 attacked and killed 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 v. Monteroso, 51
Phil. 815)
 No unlawful aggression when there
is agreement to fight
• 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 v. Del Pilar, C.A., 44. O.G. 596)
– When one agrees to engage in a fight, he cannot
plead self-defense because there is no unlawful
aggression to speak of. (Rugas v. People, G.R. No. 147789,
January 14, 2004)
 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
v. Quinto, 55 Phil. 116)
• 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. v. Cortez, et.
al., 36 Phil. 837)
Aggression which is ahead of the
stipulated time and place is unlawful
• Where there is 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 v. Court of Appeals, 53
O.G. 4083)
Aggression which is ahead of the
stipulated time and place is unlawful
• Example:

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.
Aggression which is ahead of the
stipulated time and place is unlawful
• HELD:

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.
(REYES, supra at 170)
 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. v. Domen, 37 Phil. 57)
• Thereason for the rule is that if one flees from an
aggressor, he runs the risk of being attacked in the back
by the aggressor. (REYES, supra at 170-171)
 Unlawful aggression in defense of
other rights
• Note
that in the three classes of defense
mentioned in the par. 1, 2, and 3 of Art. 11, 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.
 Unlawful aggression in defense of
other rights
1. defense of honor
– It encompasses defense of one’s chastity or
reputation. There must be imminent and
immediate danger of rape to justify killing.

– Slander may be a necessary means to repel slander.

But it must only be to the extent necessary to
redeem the honor of the defender against the
defamatory remarks. (BOADO, supra at 90)
 Unlawful aggression in defense of
other rights
• Examples: defense of right to chastity
– 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,
constitutes attack on her honor, hence, unlawful
aggression. (People v. De la Cruz, 61 Phil. 344)
– Placing of hand by a man on the woman’s upper
thigh is unlawful aggression. (People v. Jaurigue, 76
Phil. 174)
 Unlawful aggression in defense of
other rights
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 the
property. (People v. Apolinar, C.A., 38 O.G. 2870)
 Unlawful aggression in defense of
other rights
2. Defense of property
– If the aggression is on property even if there was no
attack on the defender or the owner or the
possessor, defense is proper but not to the extent of
taking life. The value of the property can never
equal the value of life, hence, killing is not
justified. (BOADO, supra at 90)
 Unlawful aggression in defense of
other rights
• Example:

The accused awoke to find his house being damaged

and his accessibility to the highway being closed as
well as of his rice mill bodega. This constituted
unlawful aggression of the part of the victims.
However, their killing was not a reasonable means
to prevent or repel the aggression. (People v. Narvaez,
April 1983)
 Unlawful aggression in defense of
other rights
3. Defense of home
– Violent entry to another’s house at nighttime, by a
person who is armed with a bolo, and who forced
his way into the house, shows he was ready and
looking for trouble, and the manner of his entry
constitutes the 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 v.
Mirabiles, 45 O.G., 5th Supp., 277)
 The belief of the accused may be
considered in determining the existence
of unlawful aggression
• Thereis self-defense even if the aggressor used
a toy pistol provided that accused believed it
was a real gun.

– Example: 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 v. Boral, 11 C.A. Rep. 914)
Threat to inflict real injury as
unlawful aggression
•A 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.
(REYES, supra at 177)
 Examples of threats to inflict real
injury:
1. When one aims a revolver at another with the
intention of shooting him.
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.
3. The act of opening a knife, and making a motion as if
to make an attack.
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. (REYES, supra at 178-179)
When intent to attack is manifest,
picking up a weapon is sufficient
unlawful aggression
• Whenpicking up of a weapon is preceded by
circumstances indicating the intention of the
deceased to use it in attacking the defendant,
such act is considered as unlawful aggression.
(People v. Javier, 46 O.G. No. 7, July, 1950)
 Aggression must be real, not merely
imaginary
• The aggression must not be imagined.
• It must be real, or at least imminent. (People v. De
la Cruz, 61 Phil. 422)
 Aggression that is expected
• An aggression that is expected is still real, provided
it is imminent.
• 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.
• 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 is has been
actually perpetrated. (U.S. v. Batungbacal, 37 Phil. 382)
 Second requisite of defense of person or
right: “reasonable necessity of the means
employed to prevent or repel it”
• Thesecond requisite presupposes the existence
of unlawful aggression, which is either
imminent or actual. Hence, in stating the
second requisite, two phrases are used, namely:
(1) to prevent; and (2) to repel. When we are
attacked, the danger to our life or limb is either
imminent or actual.
 Second requisite of defense of person or
right: “reasonable necessity of the means
employed to prevent or repel it”
• Inthe case of U.S. v. Batungbacal, 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 imminent)
 Second requisite of defense of person or
right: “reasonable necessity of the means
employed to prevent or repel it”
• 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.

 Second requisite of defense of person or
right: reasonable necessity of the means
employed to prevent or repel it
• The
reasonableness of either or both such
necessity depends on the existence of unlawful
aggression and upon the nature and extent of
the aggression. (REYES, supra at 180)
 The reasonableness of the necessity
depends upon the circumstances
• In emergencies where the person or life of
another is imperilled, 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. (REYES, supra at 180-
181)
 The reasonableness of the necessity
depends upon the circumstances
Example:
• Where the accused, who was then unarmed, was
being mauled with fistic blows by the deceased and
his companion 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 of 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. (People v. Ocana, 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
(1) place and occasion of the assault and (2) other
circumstances must be considered. (REYES, supra at
181)
 Place and occasion of the assault
Illustration:
• The command given to the accused by the deceased
in a dark and uninhabited place, for the purpose
of playing a practical joke upon him, “Lie down and
give me your money or else you die,” 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.
(December Supreme Court Spain, March 17, 1885)
 The darkness of the night and the
surprise which characterized the assault
Illustration:
• 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
demonstration 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. (People
v. Lara, 48 Phil. 153)
 Examples when NO necessity of the
course of action taken
a. When the deceased who had attacked Alconga ran
away, there was no necessity for Alconga to pursue
and kill the deceased (People v. Alconga, 78 Phil. 366)
b. 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 carrying so that stabbing with such
frequency, frenzy and force can no longer be
considered as reasonably necessary. (People v.
Masangkay, 155 SCRA 113, 122)
 Examples when NO necessity of the
course of action taken
c. 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
him. (U.S. v. Rivera, 41 Phil. 472, 474)
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 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 v.
Rabandaban, 85 Phil. 636, 637-638)
 When aggressor is disarmed
• 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 v. Alviar, 56 Phil. 98, 101)
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. (REYES, supra at 184)
 The person defending is not
expected to control his blow
• Themeasure of rational necessity is to be found
in the situation as it appeared to the person
defending at the time when the blow was
struck. (case-to-case basis)
 2. Necessity of the means employed
• The
means employed by the person making a
defense must be rationally necessary to
prevent or repel an unlawful aggression.
(REYES, supra at 186)
 2. Necessity of the means employed
Illustration:
• 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 v. Boholst-Caballero, No. L-23249,
November 25, 1974)
 Examples when NO rational
necessity to employ the means used
a. A sleeping woman, who was awaked 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 considered as an attempt against her
honor. (U.S. v. Apego, 23 Phil 931)
 Examples when NO rational
necessity to employ the means used
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 v. 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
aggression.
 Examples when NO rational
necessity to employ the means used
c. When a man placed his hand on the upper thigh of
a woman seated on a bench in a chapel where
there were so 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 v. 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.
 Test of reasonableness of the means
used
Whether the means employed is reasonable, will
depend upon:
a. whether or not the aggressor was armed;
b. nature and quality of the weapon used by the
aggressor;
c. physical condition, character, size, and other
circumstances of the aggressor, and those of the
person defending himself;
d. other circumstances such as place and occasion
of the assault (REYES, supra at 187)
 Test of reasonableness of the means
used
• Perfectequality 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 v. Padua, C.A., 40 O.G. 998)
 Test of reasonableness of the means
used
• “Reasonablenecessity 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 proportionateness thereof does not depend upon
the harm done, but rests upon the imminent danger
of such injury.” (People v. Encomienda, 46 SCRA 522, 534)
 a. Nature and quality of the weapons
1. Knife or dagger against a club – 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 reasonable if it cannot be shown
that the person assaulted (1) had other
available means or (2) if there was other
means, he could coolly chose the less deadly
weapon to repel the assault. (People v. Padua, C.A.,
40 O.G. 998)
 a. Nature and quality of the weapons
2. Firearm against a dagger or knife – To use a
firearm against a dagger or a knife, in the
regular order of things, does not imply any
difference between such weapons. (December
Supreme Court of Spain, October 27, 1887)
 a. Nature and quality of the weapons
3. Pocketknife against a cane – Laurel, in
defending himself with a pocketknife against
the assault made upon him with a cane, which
may also be a deadly weapon, employed
reasonable mean to prevent or repel the same.
(U.S. v. Laurel, 22 Phil. 252)
 a. Nature and quality of the weapons
4. Gun against a bolo – 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. v. Mack, 8 Phil. 701)
 a. Nature and quality of the weapons
5. Bolo or knife against a stick – The use of a
bolo to repel the aggression by means of stick,
the use of a knife against a rod, or knife
against a stick was held to be reasonable
under the circumstances. (People v. Romero, C.A., 34
O.G. 2046)

• However,the use of bayonet against a cane is not

reasonable. (People v. Onas, 6 SCRA 688, 692-693)
 a. Nature and quality of the weapons
6. Fist blows – When a person is attacked with
fist blows, he must repel the same with the
weapon that nature gave him, meaning with
fist blows also. (People v. Montablo, 56 Phil. 443)
 b. Physical condition, character and
size
1. 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
v. Ignacio, 58 Phil. 858)
 b. Physical condition, character and
size
2. 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 v. Sumicad, 56
Phil. 643)
 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 and 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 v. Padua, C.A., 40
O.G. 998)
 c. Other circumstances considered
In view of the imminence of the danger, a shotgun is a
reasonable means to prevent an aggression with a
bolo.
Facts: M, being abruptly awakened by shouts that P
was pursuing H and M’s two children, and seeing,
upon awakening, that in fact P was infuriated and
pursuing H with a bolo in 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.
 c. Other circumstances considered
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 latter’s aggression also gravely
threatened the lives of the parties assaulted. (U.S. v.
Batungbacal, 37 Phil. 382, 387-388)
 Reasonable necessity of the 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 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 the victim; otherwise, the law-abiding
citizens will be at the mercy of the lawless elements.
(People v. So, 5 CAR [2s] 671, 674)
Rule regarding the reasonableness of the
“necessity of the means employed” when
the one defending himself is a police
officer
• Thepeace 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. (People v. So, 5 CAR [2s] 671, 674)
 First two requisites common to
three kinds of legitimate defense
• Thefirst 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. (REYES, supra at 192)
 Third requisite of defense of self-
defense: “lack of sufficient provocation
on the person defending himself”
• 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. (REYES, supra at 192)
 Cases in which third requisite of
self-defense considered present:
1. 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
4. When, even if a provocation was given by the
person defending himself, it was not proximate and
immediate to the act of aggression. (REYES, supra at
192)
 1. No provocation at all
• Thus,
when A shot B to death, because B was
running amuck and with a dagger 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.
(REYES, supra at 193)
 2. There was provocation, but not
sufficient
• A,having discovered that B built a part of his fence
on A’s land, asked B why he had done so. This
questioned angered B who immediately attacked A.
If A would kill B to defend himself, the third
requisite for 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. v. 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
• Theprovocation 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 v. Alconga, 78 Phil. 366)
• Thus,
to engage in a verbal argument
cannot be considered sufficient
provocation.
 How to determine the sufficiency of
provocation
• Isit 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?

NO, it is not necessary.

 The provocation is sufficient ---
1. When one challenged the deceased to come out of
the house and engage in a fist fight with him to
prove who is the better man. (U.S. v. McCray, 2 Phil. 545)
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 v. Sotelo, 55 Phil. 403)
 3. Sufficient provocation not given
by the person defending himself
• Notethe phrase “on the part of the person
defending himself” in the third requisite of self-
defense. Thus, in the case of People v. Balansag,
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.
 The provocation is sufficient ---
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 v. Getida, CA-G.R. No. 2181-R, January, 6, 1951)
 Requisite of “lack of sufficient
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 v. Espino, 43 O.G., 4705)
 4. 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 the
proximate and immediate to the aggression
made by B. In this case, the third requisite of
self-defense is still present. (REYES, supra at 195)
 4. Provocation by the person defending
himself not proximate and immediate to
the aggression
• Inthe case of U.S. v. 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. (REYES, supra at 195)
 Battered Woman Syndrome as a
defense
Under R.A. No. 9262 otherwise known as “Anti-Violence
Against Women and their Children Act of 2004,” which
took effect on March 27, 2004, it provides that –
“Sec. 26. Battered Woman Syndrome as a Defense. -
Victim-survivors who are found by the courts to be suffering
from battered woman syndrome do not incur criminal and civil
liability notwithstanding the absence of any of the elements for
justifying circumstances of self-defense under the RPC.
In the determination of the state of mind of the woman
who was suffering from battered woman syndrome at the time of
the commission of the crime, the courts shall be assisted by
expert psychiatrists/psychologists.”
 Battered Woman Syndrome as a
defense
Battered woman – a woman who is repeatedly
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 once. If it occurs a
second time, and she remains in the situation, she is
defined as a battered woman.”
 Battered Woman Syndrome as a
defense
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. Battered 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 be
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 v. Genosa, G.R. No.
135981, January 15, 2001)
 Flight, incompatible with self-
defense
• Theappellant went into hiding after the
hacking incident. Suffice it to state that flight
after the commission of a crime is highly
evidentiary of guilt, and incompatible with self-
defense. (People v. Maranan, G.R. No. L-47228-32, citing
People v. Maruhom, 132 SCRA 116)
 Par. 2 – Defense of relatives.
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 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
• Relatives
by affinity, because of marriage, are
parents-in-law, son or daughter-in-law, and
brother or sister-in-law.
• Therelationship by affinity created between the
surviving spouse and the blood relatives of the
deceased spouse survives the death of either
party to the marriage which created the
affinity. (Intestate Estate of Manolita Gonzales Vda. De
Carungcong v. People, G.R. No. 181409, February 11, 2010)
 Relatives by consanguinity
• 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. (REYES, supra at 202)

– 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 Art. 11. The husband
of A’s sister-in-law is a stranger to A for the purpose of the
law on defense of relatives.
 Basis for justification
• Thejustification of defense of relatives by
reason of which the defender is not criminally
liable, is founded not only upon a humanitarian
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. (REYES, supra at 202)
 Requisites of defense of relatives
1. Unlawful aggression;
2. Reasonable necessity of the means employed
to prevent or repel it;
3. In case the provocation was given by the
person attacked, the one making a defense
had no part therein. (People v. Eduarte, 187 SCRA
291, 295)
 Unlawful aggression may be made to
depend upon the honest belief of the one
making a defense
• 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. If they killed B under such
circumstances, they are justified. (REYES, supra at 204)
 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.
• There is still legitimate defense of relative even if
the relative being defended has given provocation,
provided that the one defending such relative has no
part in the provocation. (REYES, supra at 205)
 When the third requisite is lacking
• Theaccused 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 of a running feud between them. (People v.
Toring, G.R. No. 56358, October 26, 1990, 191 SCRA 38, 47)
 The fact that the relative defended
gave provocation is immaterial
• 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 knife and
trying to stab A, and C, the father of A, killed B
in defense of his son, C is completely justified,
notwithstanding the fact that he provocation
was given by his son A. (REYES, supra at 206)
 The fact that the relative defended
gave provocation is immaterial
• Butif 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
lacking. (REYES, supra at 206)
 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.
Basis for 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. v. Aviado, 38 Phil. 10, 13)
 Requisites of defense of strangers
1. Unlawful aggression;
2. Reasonable necessity of the means employed
to prevent or repel it;
3. The person defending be not induced by
revenge, resentment, or other evil motive.
(People v. Moral, No. L-31139, October 12, 1984, 132 SCRA
474, 485)
Who are deemed strangers?
• Anyperson 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”
• 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 strangers still
exists.
• Thethird requisite would be lacking if such person
was prompted by his grudge against the assailant,
because the alleged defense of the stranger would
only be a pretext. (REYES, supra at 208)
 Illustration:
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
possession of the weapon, in the course of which
A inflicted wounds on B.

Held: A acted in defense of a stranger. (People

v. Valdez, 58 Phil. 31)
 Par. 4 – Avoidance of greater evil or
injury (state of necessity)
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;
Third. That there be no other practical and less
harmful means of preventing it;
 “Damage to another”
• Thisterm covers injury to persons and damage
to property.
 “That the evil sought to be avoided
actually exists”
• Theevil must exist. If the evil sought to be
avoided is merely expected or anticipated or
may happen in the future, paragraph 4 of Art.
11 is NOT applicable.
 Illustrations:
•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
passerby. 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 passerby.
• The
killing of a fetus to save the life of the mother
may be held excusable. (REYES, supra at 210)
 “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 it?

NO. The instinct of self-preservation will always

make one feel that his own safety is of greater
importance than that of another.
 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 of 500 meters away, he
did not slacken his speed, he cannot invoke par.
4 of Art. 11, because the state of necessity was
brought about by his own reckless imprudence.
(REYES, supra at 210)
When the accused was not avoiding
any evil, he cannot invoke par. 4
FACTS: A with a bolo and B with an axe
attacked D who was wounded. Nearby, C
embraced E, D’s son, who had a gun slung on his
shoulder, and grappled with him. D died. A, B
and C are prosecuted for murder. C invoked the
justifying circumstance of avoidance of a greater
evil or injury in explaining his act of preventing
E from shooting A and B.
 When the accused was not avoiding
any evil, he cannot invoke par. 4
HELD: Cuan’s reliance on that justifying
circumstance is erroneous. That act of C in
preventing E from shooting A and B, who were
the aggressors, was designed to insure the
killing of D, without any risk to his assailants. C
was not avoiding any evil when he sought to
disable E. (People v. Ricohermoso, et. al., 56 SCRA 431)
 Example of damage to property
under par. 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
were pulled down.
2. 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 to be
thrown overboard. (REYES, supra at 211)
 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. He is liable for theft
of the clothes. (REYES, supra ay 211)
 There is civil liability under this
paragraph
• Although, as a rule there is no civil liability in
justifying circumstances, it is only in paragraph 4
of Art. 11 where there is civil liability, but the
civil liability is borne by the persons benefitted.
• Incases falling within subdivision 4 of Art. 11, the
persons who benefit the harm has been prevented,
shall be civilly liable in proportion to the benefit
which they may have received. (Art. 101)
 Par. 5 – Fulfillment of a duty or
lawful exercise of a right or office
Any person who acts in the fulfillment of a duty
or in the lawful exercise of a right or office.
Requisites:
a. That the accused acted in the performance of a duty or
in the lawful exercise of a right or office;
b. 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 v.
Oanis, 74 Phil. 257, 259)
 Par. 5 – Fulfillment of a duty or
lawful exercise of a right or office
• Inthe case of People v. 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 exceeded in the
fulfillment of their duty when they killed a sleeping
person whom they believed to be the wanted
criminal. (REYES, supra at 212)
 Illustration: Fulfillment of a duty
FACTS:
Lorenzo Napilon escape from the jail where he was
serving sentence. Some days afterwards, policeman
Felipe Delima, who was looking for him, found him in
the house of Jorge Alegria, armed with a pointed
piece of bamboo in the shape of a lance, and
demanded his surrender. The fugitive answered with
the 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.
 Illustration: Fulfillment of a duty
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 under the circumstances.
(People v. Felipe Delima, 46 Phil. 738)
 Shooting an offender who refused to
surrender is justified
• Inthe case of People v. Gayrama, 60 Phil. 796,
where the accused 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.
 But shooting a thief who refused to
be arrested is not justified
FACTS: A security guard accosted a thief who had
stolen ore in the tunnel 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. 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.
 But shooting a thief who refused to
be arrested is not justified
HELD: The security guard acted in the
performance of his duty, but exceeded the
fulfillment of his duty by shooting the deceased.
He was adjudged guilty of homicide. (People v.
Bentres, C.A., 49 O.G. 4919)
 Illegal performance of duty
• Thedefense 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 v. Tan, No. L-22697, October 5, 1976)
 Distinguished from self-defense and
from consequences 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.
• Inthe case of People v. Delima, 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 on self-defense
does not apply. (REYES, supra at 217)
 Distinguished from self-defense and
from consequences of felonious act
• The public officer acting in the fulfillment of a duty
may appear to be an aggressor but his
aggression is not unlawful, it being necessary to
fulfill his duty.
• 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 felony (grave threats
under Art. 282)
 Distinguished from self-defense and
from consequences of felonious act
• Forinstance, 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 instance, A is criminally liable under
Art. 4, par. 1 in relation to Articles 282 and 249
(grave threats and homicide)
 Lawful exercise of right or office
• 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 par. 4 of Art. 11. (REYES,
supra at 218)
Lawful exercise of right or office
• Under this par. 4, 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
par. 1, Art. 11 applies, it being a defense of right
to property. (REYES, supra at 218)
 The actual invasion of property may
consist of a mere disturbance of
possession or of a real dispossession
• If
it is a 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.
(REYES, supra at 219)
 The actual invasion of property may
consist of a mere disturbance of
possession or of a real dispossession
• Ifthe invasion, however, consists of a real
dispossession, force to regain possession can be
used only immediately after the dispossession.
Thus, if Juan, without 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. (REYES, supra at 219)
 Illustration: Lawful exercise of office
• Theexecutioner of the Bilibid Prision cannot be
held liable for murder for the execution
performed by him because he was merely acting
in the lawful exercise of his office.
•Asurgeon 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. (REYES, supra at
220)
 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:
a. That an order has been issued by a superior;
b. That such order must be for some lawful purpose;
c. That the means used by the subordinate to carry out
said order is lawful.
 Par. 6 – Obedience to an order issued
for some lawful purpose
• Boththe (1) person who gives the order and the
(2) person who executes it, must be acting
within the limitations prescribed by law.
(People v. Wilson and Dolores, 52 Phil. 919)
 Example of absence of the third
requisite
• Thecourt 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.
• Theexecution 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
v. Barroga, 54 Phil. 247)
 When the order is not for a lawful
purpose, the subordinate who obeyed it
is criminally liable
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 to 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 v. Margen, et. al. 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 v. Beronilla, 96 Phil. 566)