Republic of the
SUPREME COURT
THIRD DIVISION
|
SPO2 LOLITO T. NACNAC, Petitioner, - versus - PEOPLE OF THE Respondent. |
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G.R. No. 191913 Present: VELASCO, JR., J., Chairperson, PERALTA, ABAD, PERLAS-BERNABE, JJ. Promulgated: March 21, 2012 |
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DECISION
VELASCO,
JR., J.:
Every circumstance favoring the accuseds
innocence must be duly taken into account. The proof against the accused must
survive the test of reason. Strongest suspicion must not be permitted to sway
judgment. The conscience must be satisfied that on the accused could be laid
the responsibility for the offense charged. If the prosecution fails to
discharge the burden, then it is not only the accuseds right to be freed; it
is, even more, the courts constitutional duty to acquit him.[1]
This treats of the Motion for Reconsideration of Our
Resolution dated August 25, 2010, affirming the July 20, 2009 Decision[2] of
the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 30907 entitled People of the Philippines v. SPO2 Lolito T.
Nacnac. The CA affirmed the May 23, 2007 Judgment[3] in
Criminal Case No. 10750-14 of the Regional Trial Court (RTC), Branch 14 in
The Facts
An Information charged the accused as follows:
That on or about February 20, 2003, in Dingras, Ilocos Norte, and within the jurisdiction of this Honorable Court, accused SPO2 Lolito I. Nacnac, a public officer, being then a member of the Philippine National Police, assigned with the Dingras Police Station, Dingras, Ilocos Norte, did then and there willfully, unlawfully and feloniously, with intent to kill, shoot one SPO1 Doddie Espejo with a gun resulting into the latters death.[4]
A reverse trial ensued upon the claim
of self-defense by the accused. As summarized by CA,[5]
the shooting incident happened as follows:
The victim, SPO1 Doddie Espejo[,] had a history of violent aggression and drunkenness. He once attacked a former superior, P/Insp. Laurel Gayya, for no apparent reason. On the day of his death, he visited a cock house for merriment. He was shot by accused-appellant [petitioner] on February 20, 2003 at around 10:00 p.m. at the Dingras Police Station, Dingras, Ilocos Norte.
On that fateful night of February
20, 2003, accused-appellant, the victim and a number of other police officers
were on duty. Their shift started at 8:00 in the morning of the same day, to
end at 8:00 the next morning. Accused-appellant, being the highest ranking
officer during the shift, was designated the officer-of-the-day. Shortly before
10:00 in the evening, the victim, together with then SPO1 Eduardo Basilio, took
the patrol tricycle from the station grounds. When accused-appellant saw this,
he stopped the victim and his colleague from using the tricycle. The victim
told accused-appellant that he (the victim) needed it to go to
Accused-appellant still refused. He told the victim that he is needed at the station and, at any rate, he should stay at the station because he was drunk. This was not received well by the victim. He told accused-appellant in Ilocano: Iyot ni inam kapi (Coitus of your mother, cousin!). The victim alighted from the tricycle. SPO1 Eduardo Basilio did the same, went inside the office, and left the accused-appellant and the victim alone. The victim took a few steps and drew his .45 caliber gun which was tucked in a holster on the right side of his chest. Accused-appellant then fired his M-16 armalite upward as a warning shot. Undaunted, the victim still drew his gun. Accused-appellant then shot the victim on the head, which caused the latters instantaneous death. Accused-appellant later surrendered to the stations Chief of Police.
The RTC Ruling
The
RTC found the accused guilty of the crime charged. The RTC held that the claim
of self-defense by the accused was unavailing due to the absence of unlawful
aggression on the part of the victim. The dispositive portion of the RTC Judgment
reads:
WHEREFORE,
the accused SPO2 Lolito Nacnac is found GUILTY beyond reasonable doubt of the
crime of homicide. Taking into account the mitigating circumstance of voluntary
surrender, the Court hereby sentences him to an indeterminate penalty ranging
from EIGHT YEARS of prision mayor as
minimum to FOURTEEN YEARS of reclusion
temporal as maximum. He is also ordered to pay the heirs of the deceased
(1) P50,000.00 as indemnity for his death, (2) P100,000.00 as actual damages,
(3) P50,000.00 as moral damages, and (4) P20,000.00 as attorneys fees. Costs
against the accused.[6]
The CA Ruling
On
appeal, the CA affirmed the findings of the RTC. It held that the essential and primary element
of unlawful aggression was lacking. It gave credence to the finding of the
trial court that no one else saw the victim drawing his weapon and pointing it
at accused Senior Police Officer 2 (SPO2) Lolito T. Nacnac. The fallo
of the CA Decision reads:
WHEREFORE, the instant appeal is DISMISSED for lack of merit and the
challenged Judgment dated May 23, 2007 in Criminal Case No. 10750-14 is AFFIRMED IN TOTO.[7]
On
August 25, 2010, this Court issued a Resolution, denying Nacnacs petition for
review for failure to sufficiently show that the CA committed any reversible
error in the challenged decision and resolution as to warrant the exercise of
this Courts appellate jurisdiction.
On
October 11, 2010, petitioner filed a Motion for Reconsideration of this Courts
Resolution dated August 25, 2010. On
March 21, 2012, this Court granted the Motion and reinstated the petition. Petitioner
raises the following issues:
1. [Whether the CA erroneously held that] the victims drawing of his handgun or pointing it at the petitioner is not sufficient to constitute unlawful aggression based on existing jurisprudence.
2. [Whether the CA incorrectly appreciated the photo] showing the victim holding his handgun in a peculiar manner despite the fact that no expert witness was presented to testify thereto x x x.
3. [Whether petitioner] has met the second and third requisites of self-defense x x x.[8]
Petitioner
argues that he did not receive a just and fair judgment based on the following:
(1) the trial court did not resort to expert testimony and wrongly interpreted
a photograph; (2) the trial court ignored the evidence proving unlawful
aggression by the victim; (3) the trial court ignored the two gun reports and
two empty shells found at the crime scene which support the claim that
petitioner fired a warning shot; and (4) the trial court failed to appreciate
petitioners act of self-defense.
Petitioner also claims that the CA gravely erred in not giving proper
weight and due consideration to the Comment of the Office of the Solicitor
General (OSG).
In
its Comment[9] dated
April 27, 2011, the OSG avers that petitioner is entitled to an acquittal, or
at the very least, not one but two mitigating circumstances.
Our Ruling
We
revisit Our ruling in the instant case.
The
Revised Penal Code provides the requisites for a valid self-defense claim:
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.
Unlawful Aggression
Unlawful
aggression is an indispensable element of self-defense. We explained, Without
unlawful aggression, self-defense will not have a leg to stand on and this
justifying circumstance cannot and will not be appreciated, even if the other
elements are present.[10]
It would presuppose an actual, sudden and unexpected attack or imminent danger
on the life and limb of a personnot a mere threatening or intimidating
attitudebut most importantly, at the time the defensive action was taken
against the aggressor. x x x There is aggression in contemplation of the law
only when the one attacked faces real and immediate threat to ones life. The
peril sought to be avoided must be imminent and actual, not just speculative.[11]
As
We held:
Even the cocking of a rifle without aiming the firearm at any particular target is not sufficient to conclude that ones life was in imminent danger. Hence, a threat, even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression.[12]
The
following exchange showing actual and material unlawful aggression transpired
during the examination of petitioner:[13]
Atty. Lazo: At any rate, when you again prevented them from getting the tricycle telling them again that they should not get the tricycle, what happened next?
Accused: When police officer Basilio alighted from the tricycle SPO1 Espejo also alighted sir.
Q What did Doddie Espejo do when he alighted from the tricycle?
A I saw him hold his firearm tucked on his right waist. (witness demonstrating by placing his right hand at his right sideways). And he was left handed, sir.
Q And what happened next?
A When I saw him holding his firearm that was the time I fired a warning shot, sir.
Q And when you fired [a] warning shot, what happened next?
A He drew his firearm, sir.
Q When he drew his firearm, what did you do?
A When he drew his firearm I shot him [on] his head once, sir.
x x x x
Atty. Cajigal:
Q By the way, what kind of firearm did the victim draw from his waist?
A
Q What firearm did you use in defending yourself?
A M-16 armalite, sir.
x x x x
Q Alright, you mean to tell the Honorable Court then that at the time that you pointed or squeezed the trigger of your gun the cal. 45 was already pointed at you?
A Yes, sir.
Q Did you ever observe if he squeezed the trigger but the gun [was] already pointed at you?
A He just pointed his firearm at me, sir.
Q Who first pointed his firearm, the victim pointed his firearm at you before you pointed your firearm at him?
A The victim, sir.
Q In short, it was the victim
whose gun was first pointed at you?
A Yes, sir.
Q And that was the time when you raised your armalite and also pointed the same at him is that right?
A Yes, that was the time that I shot him, sir. (Emphasis supplied.)
According
to the trial court, petitioners claim that the victim pointed his gun at petitioner
was a mere afterthought. It ruled that petitioners sworn statement and direct
testimony as well as the testimonies of SPO1 Eduardo Basilio and SPO2 Roosevelt
Ballesteros only established that the victim drew his gun. The trial court went
on to differentiate the act of drawing a gun and pointing it at a target. It
held that the mere act of drawing a gun cannot be considered unlawful
aggression. In denying petitioners motion for reconsideration, the CA affirmed
the trial courts findings and further held that petitioner had fuller control
of his physical and mental faculties in view of the victims drunken state. It
concluded that the likelihood of the victim committing unlawful aggression in
his inebriated state was very slim.[14]
We
disagree. The characterization as a mere afterthought of petitioners testimony
on the presence of unlawful aggression is not supported by the records.
The following circumstances negate a
conviction for the killing of the victim:
(1)
The
drunken state of the victim;
(2)
The
victim was also a police officer who was professionally trained at shooting;
(3)
The
warning shot fired by petitioner was ignored by the victim;
(4)
A
lawful order by petitioner was ignored by the victim; and
(5)
The
victim was known for his combative and drunken behavior.
As
testified by the victims companion, SPO1 Basilio, petitioner ordered him and
the victim not to leave because they were on duty. SPO1 Basilio also confirmed
that the victim was inebriated and had uttered invectives in response to petitioners
lawful order.[15]
Ordinarily,
as pointed out by the lower court, there is a difference between the act of
drawing ones gun and the act of pointing ones gun at a target. The former
cannot be said to be unlawful aggression on the part of the victim. In People v. Borreros,[16] We ruled that for unlawful aggression
to be attendant, there must be a real danger to life or personal safety. Unlawful
aggression requires an actual, sudden and unexpected attack, or imminent danger
thereof, and not merely a threatening or intimidating attitude x x x. Here, the
act of the [deceased] of allegedly drawing a gun from his waist cannot be
categorized as unlawful aggression. Such act did not put in real peril the life
or personal safety of appellant.
The
facts surrounding the instant case must, however, be differentiated from current
jurisprudence on unlawful aggression. The victim here was a trained police
officer. He was inebriated and had disobeyed a lawful order in order to settle
a score with someone using a police vehicle. A warning shot fired by a fellow
police officer, his superior, was left unheeded as he reached for his own
firearm and pointed it at petitioner. Petitioner was, therefore, justified in
defending himself from an inebriated and disobedient colleague. Even if We were to disbelieve the claim that
the victim pointed his firearm at petitioner, there would still be a finding of
unlawful aggression on the part of the victim. We quote with approval the OSGs
argument[17] on this
point:
A police officer is trained to shoot quickly and accurately. A police officer cannot earn his badge unless he can prove to his trainors that he can shoot out of the holster quickly and accurately x x x. Given this factual backdrop, there is reasonable basis to presume that the appellant indeed felt his life was actually threatened. Facing an armed police officer like himself, who at that time, was standing a mere five meters from the appellant, the [latter] knew that he has to be quick on the draw. It is worth emphasizing that the victim, being a policeman himself, is presumed to be quick in firing.
Hence, it now becomes reasonably certain that in this specific case, it would have been fatal for the appellant to have waited for SPO1 Espejo to point his gun before the appellant fires back.
Reasonable Means Employed
To
successfully invoke self-defense, another requisite is that the means employed
by the accused must be reasonably commensurate to the nature and the extent of
the attack sought to be averted.[18]
Supporting
petitioners claim of self-defense is the lone gunshot wound suffered by the
victim. The nature and number of wounds inflicted by the accused are constantly
and unremittingly considered as important indicia.[19] In People
v. Catbagan,[20] We
aptly held:
The means employed by the person invoking self-defense is reasonable if equivalent to the means of attack used by the original aggressor. Whether or not the means of self-defense is reasonable depends upon the nature or quality of the weapon, the physical condition, the character, the size and other circumstances of the aggressor; as well as those of the person who invokes self-defense; and also the place and the occasion of the assault.
In
the instant case, the lone wound inflicted on the victim supports the argument
that petitioner feared for his life and only shot the victim to defend himself.
The lone gunshot was a reasonable means chosen by petitioner in defending
himself in view of the proximity of the armed victim, his drunken state,
disobedience of an unlawful order, and failure to stand down despite a warning
shot.
Lack of Sufficient Provocation
The last requisite for self-defense
to be appreciated is lack of sufficient provocation on the part of the person
defending himself or herself. As gleaned from the findings of the trial court, petitioner
gave the victim a lawful order and fired a warning shot before shooting the
armed and drunk victim. Absent from the shooting incident was any evidence on petitioner
sufficiently provoking the victim prior to the shooting.
All
told, We are convinced that petitioner was only defending himself on the night
he shot his fellow police officer. The
rule is that factual findings of the trial court and its evaluation of the
credibility of witnesses and their testimonies are entitled to great respect
and will not be disturbed on appeal.[21] This
rule is binding except where the trial court has overlooked, misapprehended, or
misapplied any fact or circumstance of weight and substance.[22]
As earlier pointed out, the trial court did not consider certain facts and
circumstances that materially affect the outcome of the instant case. We must, therefore, acquit petitioner.
Given
the peculiar circumstances of this case, We find that the prosecution was
unable to establish beyond reasonable doubt the guilt of petitioner. Even the
OSG shares this view in its Comment appealing for his acquittal.
WHEREFORE, petitioners Motion for Reconsideration
is GRANTED. The CA Decision dated
July 20, 2009 in CA-G.R. CR-H.C. No. 30907 is REVERSED and SET ASIDE. Petitioner SPO2 Lolito T. Nacnac is ACQUITTED of homicide on reasonable
doubt.
The Director of the Bureau of Prisons
is ordered to immediately RELEASE petitioner
from custody, unless he is being held for some other lawful cause, and to INFORM this Court within five (5) days
from receipt of this Decision of the date petitioner was actually released from
confinement.
SO
ORDERED.
PRESBITERO
J. VELASCO, JR.
Associate
Justice
WE
CONCUR:
DIOSDADO M. PERALTA
Associate Justice
ROBERTO A. ABAD JOSE
CATRAL
Associate
Justice
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
C E R T I F I C A T I
O N
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice
[1] People v. Muleta, G.R. No. 130189, June 25, 1999, 309 SCRA 148, 175-176; citing People v. Mejia, G.R. Nos. 118940-41, July 7, 1997, 275 SCRA 127, 155. (Emphasis supplied.)
[2] Penned by Associate Justice Ramon M. Bato, Jr. and concurred in by Presiding Justice Conrado M. Vasquez, Jr. and Associate Justice Arturo G. Tayag.
[4] Rollo, p. 45.
[6]
[7]
[8]