THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE SABANDAL, DEFENDANT-APPELLANT.

For a life needlessly lost, that of Claudio Oliveros,
in a senseless encounter, appellant Jose Sabandal and
Rosalio Saluper were
prosecuted for murder, the killing being qualified by treachery. Only
appellant, who fired the fatal shot, was convicted of such an offense; the
other accused, who did not appeal, being held liable only for the offense of
slight physical injuries inflicted on the aggrieved party, no conspiracy having
been shown.  Appellant would impress on
this Court that the judgment should have been one of acquittal, as the shooting
was the result of his having acted in the fulfillment of a duty or in the
lawful exercise of his office, he being a member of the police force of Gingoog City.  A
careful study of the evidence of record, however, does not justify the setting
aside of the decision reached by the lower court.  We affirm.

The conviction arose from the facts as testified to by the
prosecution given credence by the trial court. 
On June 9, 1968, at
around 8:30 in the evening, the
victim, Claudio Oliveros and five others, including
the witness Rogelio Rafal, were gathered together
below the house of another eyewitness, Loreto Caban
in Sitio Balanoc, Gingoog City.  In no time at all, Rosalio
Saluper and appellant Jose Sabandal
arrived on board a truck, parking it near such house.^[1]
The two then approached the Oliveros group and asked
whether there were prostitutes available.^[2]
It was Caban who answered:  “There are no prostitutes here.”
Appellant Sabandal and Saluper,
however, did not believe such a statement.^[3]
Appellant, desirous of finding out for himself, went up the house, with Saluper being left behind.^[4]
After ascertaining that such indeed was the case, appellant immediately
proceeded downstairs, and while still descending, shouted to Rosalio Saluper:  “Pare, there [are no women].”^[5] Saluper was not to be mollified.  He exclaimed in anger: “You all deserve
a kick.”^[6]
He vented his displeasure by giving a blow to Oliveros.^[7] A
fist fight ensued, with Oliveros apparently on the
losing end.^[8]
Appellant Sabandal, without more ado and fast on the
draw, fired at Oliveros, hitting him at the
“right side of his stomach.”^[9]
With such a turn of events, the rest of the group immediately dispersed,
scampering for safety.  Oliveros, badly wounded, attempted to flee, but was fired
upon again by appellant, without however the bullet finding its mark.^[10]
Thereafter, together with Saluper, on board the same
truck, appellant hurriedly left the place.^[11]

After they had gone, Loreto Caban and
one Jorge Daculap, coming out of their hiding place,
looked for Oliveros whom they found still alive some
30 meters behind Caban’s house crying for help:  “Brod, don’t
leave because I will die with this.  I
was shot by Jose Sabandal and Rosalio
Saluper.”^[12]
They were unable to do much for the victim as, trying to carry him, they found
him too heavy.  His wife was then
fetched.  With the help of the neighbors,
Oliveros was taken to the Mission Clinic at Gingoog City.  He died two hours later, having in the
meantime given an ante-mortem statement pointing to appellant as the one who
shot him.^[13]

As noted in the lower court decision before us, the doctor who
conducted the autopsy found two gunshot wounds traceable to the fatal shot on
the body of the deceased, one being located at the “region of the back,
right thoracic area near the scapular region, posterior midclavicular
line” and the other at the “right lumbar region of the abdomen,”
The cause of death, according to the medical finding, was “shock secondary
to massive intraperitoneal and intrathoracic
hemorrhages secondary to perforation of right lung; liver, duodenum, mesenteric
portion of jejunum, right kidney secondary to gunshot wound.”^[14]

As set forth in the appealed decision, “the accused Jose Sabandal [was found] guilty beyond reasonable doubt of the
offense charged of murder, and there being no aggravating or mitigating
circumstances [was] sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided for by
law and to indemnify the heirs of the deceased Claudio Oliveros
in the sum of P12,000.00.”^[15]

In this appeal, the two principal errors discussed jointly in the
well-written brief of counsel de oficio,
Senator Lorenzo Sumulong, would find fault with the
above decision as appellant, who was the peace officer, being in the Secret
Service Division of the police force of Gingoog City,
was allegedly entitled to the benefits of the justifying circumstance of having
acted in the fulfillment of a duty or in the lawful exercise of a right or
office, the lower court failing to accord belief and credence to the evidence
submitted by him.  Hence his acquittal is
sought.  As noted at the outset, such a
plea, while strongly pressed, is unconvincing. 
The conviction must be affirmed.

1.  The brief for the
appellant would present his side of the case thus:  “On June 9. 1968 at about 7 o’clock in
the evening while he was at the residence of the City Mayor, his co-accused Rosalio Saluper arrived and
reported [his being mauled] at Balanoc by somebody
and because of his assignment he referred the matter to the Mayor, and when the
latter came to know about it he, Jose Sabandal, was
ordered by the Mayor to go with Rosalio Saluper to find out who were the persons who mauled the
latter and to arrest them * * *.  When he
and Rosalio Saluper arrived
at Balanoc, Rosalio Saluper pointed to him the place where the incident
happened.  It was dark and at a distance
he saw a light.  They proceeded to the
lighted place, and when they arrived, one person approached them.  They went down from the three-fourth truck
and asked the person who approached them who were those persons who were noisy
and the man replied that those persons were drinking and waiting for
women.  When Caban
told him that the men were waiting for women, he asked Caban
to go upstairs and at the same time asked Rosalio Saluper to identify the man who boxed him.  After finding out that there were no women
upstairs, Sabandal and Caban
decided to go upstairs and while going upstairs he, Jose Sabandal,
saw Rosalio Saluper being
boxed by one person and was surrounded by the others.  Upon seeing that his companion was being
boxed he said ‘Don’t you know that I am an authority of the law?’  * * * and when he was about to separate Saluper and the other person who boxed him, whom he later
came to know to be the victim, Claudio Oliveros,
another person was holding with his two hands above his (Sabandal’s)
head, and this man he came to know, later as Jorge Daculay.  Fortunately, however, he was able to evade
the blow by Jorge Daculay with the stone in his
hands, and what he did in order to stop Daculay from
any further attempt to harm him, [was to draw] his pistol, and Daculay upon seeing his pistol drawn, ran away.  He chased Daculay
but upon reaching a dark place, he became afraid so he fired a warning
shot.  Afterwards he went back to the
place of the incident because he heard shouts for help, and there he saw Saluper and Claudio Oliveros
still fighting, grappling and rolling on the ground while the other persons
were holding pieces of wood and bamboo. 
Realizing the situation, he shouted to stop them, but the three persons
instead of stopping the fight ran away, and the two (Saluper
and Oliveros) continued fighting and grappling.  He tried his best to separate the
protagonists, but he found it difficult so what he did was to bend and shove Saluper who was on top of this adversary.  When he succeeded in separating Saluper, the other person was still lying face up and while
he was bending towards him, said person (Oliveros)
kicked him, and he was hit on his left shoulder causing him to fall down
backward * * *. When he was trying to regain his position, Claudio Oliveros kicked him again hitting him this time on his
right hand which was holding his pistol, and simultaneously after that, there
was an explosion which he did not notice if somebody was hit, and after that
[he saw] Rosalio Saluper
and the other person with whom he was grappling still lying on the
ground.”^[16]

It is to be noted that the argument thus advanced was raised and
rejected by the lower court.  The
decision on appeal explains why the version of the prosecution is entitled to
greater credence and belief.  Thus:  “The location of the two wounds which
indicates the trajectory of the bullet jibes completely with, and confirms, the
version of the eye-witnesses for the prosecution that the victim was staggering,
body leaning backwards as if to fall on his back, when the accused Sabandal fired the first shot.  The second shot when the victim was on the
run apparently was a miss.  The story of
the accused Jose Sabandal is fishy from the very
beginning.  And worst, when the accused Sabandal was asked to demonstrate his position and that of
the victim at the precise time the victim allegedly kicked him on the right
hand and caused his pistol to explode accidentally, it was found that if such
was their relative position and the position of the pistol, the trajectory of
the bullet would not have been as indicated by the wounds on the right lumbar
region of the abdomen and the right thoracic area near the scapular area.  Accused Sabandal
demonstrated that at the precise time his pistol accidentally exploded he was
seated on his buttocks legs extended, with his left hand braced against the
ground to support him and his right hand holding the pistol parallel to the
ground.  The victim was lying face up
with the right leg extended and the right foot touching Sabandal’s
right upper arm.  The pistol was one (1)
foot and five (5) inches from the ground. 
On the other hand it is to be noted that the difference in elevation
between the wound on the abdomen and the wound on the back is nine (9) inches
measured from the malleolus of the right leg.  With the help of a meter stick to trace the
trajectory of the bullet from the pistol in the position demonstrated it was
found improbable, if not impossible, for the entrance wound to be on the
abdomen.  When the accused Sabandal was confronted with the improbabilities in his
testimony, he changed the position of the pistol and explained that at the time
his pistol exploded, he was holding it limply with his right hand; and then later
on said that he could not tell exactly the position of his pistol at the time
it accidentally exploded.”^[17]

Nor is this all that the lower court said on the subject, as
shown by the following:  “Moreover,
there is absolutely no corroboration to the alleged accidental firing.  According to the accused Rosalio
Saluper, who from his testimony seems to lose
consciousness always at the critical moment, he was almost unconscious when he
heard the shot and when he recovered consciousness the victim was no longer
beside him.  So desperate were the
accused in their need for witnesses to support their story that they had to
resort to the testimony of a woman of ill-repute.  But even this woman failed to corroborate the
alleged accidental shooting.”^[18]
Further:  “Besides, if the accused Sabandal were as innocent as he claims, why did he fail to
report the incident immediately that same night of June 9, 1968.  From
the testimony of the Deputy Chief of Police it appears that Sabandal
did not report until the following day, and only after a memo was sent to him
to surrender.  Then strangely he refused
to submit to an investigation by his fellow officers and instead insisted on
making an affidavit of his own.  What had
he to fear from his fellow officers?  All
these lean heavily against the accused Sabandal’s
pretension of innocence.”^[19]

What was said in People v. Beraces^[20]
finds relevance:  “It is significant
that in this appeal the attack on the correctness of the lower court decision
is centered on the proposition that the prosecution failed to prove beyond
reasonable doubt the guilt of the accused. 
Appellants would have this Court disregard the findings of the trial
judge as to the weight to be given the evidence of record. That such a power
exists is not to be denied.  It is
equally undeniable that unless a fact or circumstance of weight or influence
has been shown to be disregarded by the lower court there is no justification
for its judgment as to the credibility to be attached to the testimony offered
by the witness being disturbed.  So this
Court had occasion to reiterate in the relatively recent case of People v. Gumahin.  Thus:  ‘The findings of the lower court embodied in
a well-written decision cannot only stand the test of the most rigid scrutiny
but also has in its favor the well-settled principle that as far as credibility
is concerned the findings of the lower court which had the opportunity to see,
hear and observe the witnesses testify and to weigh their testimonies will be
accorded the highest degree of respect by this Tribunal.’ Appellants were
unable to demonstrate that such a principle should not be paid deference.”^[21]

2.  More specifically,
concerning the defense of appellant having acted in the fulfillment of a duty
as a peace officer or in the lawful exercise thereof,^[22]
it cannot be said that the rejection thereof by the lower court amounted to an
error.  That there is such a justifying
circumstance admits of no doubt.  It is
equally undoubted that the codal requirements are
plain and explicit.  The public official
must act in the fulfillment of his duty or in the lawful exercise of the
position he holds.  It must be evident
then that he is acting in such a capacity, otherwise such a plea is
unavailing.  There are cases when the
certainty of an accused performing the act in the discharge of his official
duties is quite apparent.  This is not
one of them. Rather, the evidence speaks in no uncertain terms that appellant
figured in a brawl arising from an incident in no wise connected with the
performance of a function vested in him by law. 
No other conclusion is justifiable in the light of the facts
disclosed.  Such a defense was rightfully
rejected then.

The lower court thus paid heed to what has been decided by this
Tribunal.  So it has been from United
States v. Bertucio,^[23]
a 1901 decision.  The opinion of Justice Dizon in the latest case in point, Valcorza
v. People,^[24]
promulgated in 1969, is illuminating. Thus: 
“While We have not lost sight of the fact that the deceased
Pimentel was charged with a relatively minor offense, namely, stealing a
chicken; and while We do not in any way wish to encourage law enforcing
officers to be trigger-happy nor to employ force and violence upon persons
under their custody, We cannot, in the consideration of this case, disregard the
following facts:  the said deceased, in
violation of the law, had escaped from detention; when ordered to stop by Sgt. Daiton – whom he must have recognized as a peace officer in
his pursuit – he ran away and then threw himself into a creek to elude his
pursuer; after sometime he suddenly emerged from bushes near which petitioner
and a fellow policeman were and assaulted the former twice with a stone and
then ran away again pursued by petitioner and his companion; that petitioner
does not appear to be a trigger-happy policeman as shown by the fact that he
had fired five cautionary shots into the air and decided to aim directly at the
escaping detainee only when he had already reasons to fear that the latter
would be able to elude him and his companions. 
These facts and circumstances constrain Us to hold that the act thus
performed by petitioner – and which unfortunately resulted in the death of the
escaping detainee – was committed in the performance of his official duty and
was more or less necessary to prevent the escaping prisoner from successfully
eluding the officers of the law.  To hold
him guilty of homicide may have the effect of demoralizing police officers
discharging official functions identical or similar to those in the performance
of which petitioner was engaged at the time he fired at the deceased Pimentel,
with the result that thereafter We would have half-hearted and dispirited
efforts on their part to comply with such official duty. This of course, would
be to the great detriment of public interest.”^[25]

To repeat, appellant clearly is not entitled to assert that what
was done by him was in the fulfillment of a duty or in the lawful exercise of
his office.

WHEREFORE, the appealed decision of July 31, 1969 finding
the appellant Jose Sabandal guilty beyond reasonable
doubt of the crime of murder and sentencing him to suffer the penalty of reclusion
perpetua with all the accessory penalties
provided for by law as well as to indemnify the heirs of the deceased Claudio Oliveros the sum of P12,000.00 is affirmed.  With costs against appellant.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor, and Makasiar, JJ., concur.

^[1] T.s.n., Session of Nov.
26, 1968, pp. 19-20; Session of Feb. 11, 1969, P. 2.

^[2] Ibid,
p. 21; ibid, pp. 2-3.

^[3] Ibid.

^[4] Ibid.

^[5] Ibid.

^[6] Ibid,
p. 32.

^[7] T.s.n., Session of Feb.
11, 1969, p. 3.

^[8] T.s.n., Session of Nov.
26, 1968, p. 22.

^[9] Ibid;
T.s.n., Session of Feb. 11, 1969, p. 3.

^[10] Ibid;
T.s.n., Session of Feb. 11, 1969, p. 4.

^[11] T.s.n., Session of Nov.
26, 1968, p. 23.

^[12] Ibid,
pp. 23-24.

^[13] Ibid,
p. 9.

^[14]
Decision, Appendix to Brief for Appellant, pp. 2 and 3.

^[15] Ibid,
p. 10.

^[16]
Argument, Brief for the Appellant, pp. 7-9.

^[17]
Decision, Appendix to Brief for Appellant, pp. 7-8.

^[18] Ibid,
p. 8.

^[19] Ibid,
pp. 8-9.

^[20]
L-25016, March 27, 1971, 38
SCRA 127.

^[21] Ibid,
p. 132, citing People v. Gumahin, L-22357,
Oct. 31, 1967, 21 SCRA 729, Cf. People v. Tila-on,
L-12406, June 30, 1961, 2 SCRA 653; People v. Curiano,
L-15256-57, Oct. 31, 1963, 9 SCRA 323; and People v. Lumayag,
L-19142, March 31, 1965, 13 SCRA 502.

^[22]
According to Art. 11, par. 5 of the Revised Penal Code:  “The following do not incur any criminal
liability:  * * * (5) Any person who acts
in the fulfillment of a duty or in the lawful exercise of a right or office.”

^[23]
1 Phil. 47. Cf. United States v. Barbosa, 1
Phil. 313 (1902); United States v. Capisonda,
1 Phil. 575 (1902); United States v. Cuison, 4
Phil. 194 (1905); United States v. Magno, 8
Phil. 314 (1907); United States v. Aviado, 38 Phil.
10 (1918); People v. Delima, 46 Phil. 738
(1922); People v. Francisco, 57 Phil. 418 (1932); People v. Oanis, 74 Phil. 257 (1943).

^[24]
L-28129, October 31, 1969,
30 SCRA 143.

^[25] Ibid,
p. 149.