JOSE FRIAS, JR. AND GERVACIO TACAS, PETITIONERS-APPELLANTS, VS. PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, RESPONDENTS-APPELLEES.

In this petition for review by certiorari, petitioners-appellants seek reversal of the decision of the Sandigan­bayan, the dispositive part of which reads:

“WHEREFORE, accused P/Cpl. GERVACIO TACAS and JOSE FRIAS, JR. are
hereby found guilty beyond reasonable doubt as principals of the crime
of Murder, qualified by taking advantage of superior strength, defined
and penalized under Article 248 of the Revised Penal Code. Taking into
account the mitigating circumstance of voluntary surrender without any
aggravating circumstance to offset the same and applying the
Indeterminate Sentence Law, both accused are each sentenced to an
indeterminate penalty ranging from ELEVEN (11) YEARS and ONE (1) DAY of prision mayor, as minimum, to EIGHTEEN (18) YEARS and SIX (6) MONTHS of reclusion temporal,
as maximum; to pay to the heirs of the deceased Bartolome Arellano,
jointly and severally, P15,000.00 for the death of said victim;
P5,311.45 as actual damages; P15,000.00 as moral damages; compensatory
damages of P40,000.00, by way of unrealized earnings; and to pay the
costs.

“Subject homemade ‘bulldog’ gun marked Exhibit 1-a is hereby
confiscated in favor of the state; but let the armalite marked Exhibit
1-e which was issued as official service firearm of P/Cpl. Gervacio
Tacas be returned to Sta. Teresita, Cagayan police station for proper
disposition.” (pp. 96-97, Rollo)

Appellant Gervacio Tacas is a member of the police force of Sta.
Teresita, Cagayan; has been a policeman for 24 years and was on duty on
August 3, 1980. He admitted having shot Bartolome Arellano on August 3,
1980. However, he claims that he did so in self-defense and/or in the
fulfillment of duty or lawful exercise of a right or office. As aptly
stated by respondent court, “[t]o avoid criminal liability therefor, he
has to show to the satisfaction of the Court the attendance of
justifying circumstance or circumstances and must rely on the strength
of his own evidence. He can not depend on the weakness of the
prosecution’s evidence for even if weak, it could not be disbelieved
after the accused himself owned the killing.” (p. 81, Rollo)

Respondent court based its finding of guilt of herein appellants on the
testimony of Edita Arellano, daughter of the deceased, and the
testimonies of Francisco Arellano and Ricardo Bilag who both claimed to
have witnessed the killing. Their testimonies, as summarized by the
trial court, are as follows:

Testimony of Edita Arellano

“Second witness for the People was Edita Arellano y Pajela,
daughter of the deceased Bartolome Arellano. She testified that her
father was a farmer by occupation, planting rice to a 3-hectare land
with an average yield of 80 sacks per harvest every semester at P50.00
per sack. According to her, her late father was an early riser. On
August 3, 1980, he was up at 4:00 in the morning and after preparing
food, he went out to the field, as he usually did, to see his carabao.
He was in short pants and sweater and unarmed.

“Then, at around 5:30 that fateful morning, she heard a single
gunfire followed by three ‘bang, bang, bang’ and a series of gunshots
thereafter, afterwhich somebody who was running told her that her father
was dead. So, she rushed to the highway and found her dead father lying
face down with hands and feet stretched and right forearm supporting
the forehead. Many people were around the cadaver and even as she went
nearer, she saw policemen taking photographs of the deceased. Then, Cpl.
Tabarrejo turned the cadaver face upward and placed over the abdomen a
gun and knife afterwhich pictures thereof were again taken; but she did
not see where Cpl. Tabarrejo got the said gun and knife.

“Pointing to accused Gervacio Tacas in Court, this prosecution
witness also testified that she did not know what to do and was crying
hysterically in front of Tabarrejo when the aforementioned acts were
being done with her dead father. She was the only one left at home
because her mother went to Laoag City. Ignorant, helpless, shocked, and
speech­less, she just watched what the policemen were doing to the
mortal body of her late 56 year-old father.” (pp. 38-39, Rollo)

Testimony of Francisco Arellano

“According to him, on the night of August 2, 1980, he was in the
dance hall within the poblacion of Sta. Teresita, Cagayan. He slept
there and went home at about 5:00 the following morning, reaching
Simpatuyo by jeep an hour later. He met accused Gervacio Tacas on the
bridge. Tacas, in underwears, was holding an armalite and was with Jose
Frias, Jr. who was armed with a carbine. Being still a second cousin of
Tacas, he was not afraid. He trailed Tacas just one and a half meter on
the same side of the barangay road while Frias walked eight meters from
them on the other side of the road. From such vantage position, he saw
Frias aiming a carbine at Bartolome Arellano who was then facing Tacas
and eight meters from Frias. Bartolome Arellano was unarmed and was
walking slowly in a stooping manner at the place reflected in the sketch
(Exhibit F). It was Tacas who first shot Arellano before Frias also
fired at the latter but he could not tell if Bartolome was hit then.
Thereafter, Bartolome Arellano ran and Tacas moved such that the latter
was about to meet the former. However, when Bartolome Arellano noticed
the approaching Tacas, Arellano turned around and ran back to where he
was formerly (the spot marked B, Arellano in Exhibit F), even as Frias
moved to the ‘RIC’ which is made of hollow blocks and Tacas returned to
the edge of the LB canteen. He was beside Tacas when Tacas and Frias
fired. Both Tacas and Frias fired twice but more reports came from Tacas
who touched the automatic lever of his gun. After the firing was over,
Arellano whirled around and fell face down in the place where there is a
palm tree, witness recounted.

“Elaborating on how he managed to observe the happening in
question, he explained that he was only a meter away from Tacas and five
to six meters from Frias when the assailants shot the victim. Being
still a second cousin to Tacas, he even commented to Tacas ‘No more,
Manong’ but this was after the victim fell and was dead already. Upon
seeing his dead cousin, fear seized him because Tacas might also turn
against him. Before leaving the scene, however, he tried to go closer to
the fallen victim but only to be told by Tacas ‘Get away from there;
otherwise, I will pulverize your face.’ Apprehensive of what could
happen to him in such a perilous situation, he left, witness narrated.

“This prosecution witness also identified Exhibits E and E-1 to be
the pictures of the deceased Bartolome Arellano, a first cousin of his.
He admitted that he was never investigated by the police and did not
present himself to the PC authorities in Aparri or elsewhere for
investigation in connection with the incident under inquiry; and that it
was only before Fiscal Ferrer the day before he testified in court that
he executed an affidavit for the first time in relation to this case.
He never moved to another place since the time of the shooting at bar
took place but he was not able to present himself as a witness earlier
for the reason that some people in their locality made him understand
that he is disqualified to be a witness in the case involving a first
cousin of his. He was still at the scene of the crime when police
probers arrived but because he was never asked, he did not volunteer any
information. However, he told Edita, daughter of the deceased, that he
witnessed the shooting but she said ‘Never mind, Tatang.’ During the
burial, he also informed other relatives, like his Uncles Mando Arellano
and Tolentino Arellano, of what he saw in the same way that he told the
bereaved widow of the victim. During the wake, there were also police
investigators but inasmuch as nobody inquired as to who shot the victim,
he did not tell anything to the investigators; besides, he was out for
work, witness who insisted that he witnessed the shoot­ing complained
of, pointed out.

“Finally, this witness divulged that the victim was not carrying
anything at the time the two accused shot him (victim). In fact, the
victim was only wearing short pants and ‘bad shirt,’ he added.” (pp.
40-43, Rollo)

Testimony of Ricardo Bilag

“Ricardo Bilag y Sotelo, security guard by occupation and who
stayed in barangay Simpatuyo, Sta. Teresita, Cagayan from July 23, 1980
to January 1981, was the fourth People’s witness in this case. Among
other things, he declared that during the aforesaid period, he sojourned
with his cousin, Ernesto Lazo, whose house is located in the place
indicated with initial ‘EL’ (Exhibit F-1) in Exhibit F. On August 3,
1980, he was, therefore, in the house of Ernesto Lazo. Waking up at 5:45
a.m. on said date, he was by the window facing the national road to San
Vicente when he witnessed the unusual incident wherein Bartolome
Arellano was killed. Before Bartolome Arellano was fatally shot, the
latter was walking on the national road and was being followed by
accused Gervacio Tacas who was with an armalite. Tacas was wearing brief
and sleeveless shirt. Standing by the road behind Tacas was accused
Jose Frias, Jr. who was with a carbine. At the far end of the barangay
road walking to and fro around four meters from Tacas was Francisco
Arellano. Bartolome Arellano was without any weapon. He was wearing dark
shoes and brown long sleeves shirt.

“According to this witness, when Tacas was following Bartolome
Arellano, the latter went to hide behind the ‘RIC’ concrete marker even
as Tacas was aiming the gun at him (Bartolome Arellano). After Tacas
fired twice, Bartolome Arellano ran towards a ‘silag’ tree about 12
meters from the ‘RIC’ concrete marker but he was again followed by Tacas
who crossed the national road and went near the same ‘silag’ tree; and
when Bartolome Arellano tried to go to the national road and was passing
by the store, the latter was shot by Tacas, at which precise time,
Frias was at the roadside, lying with stomach down and aiming also his
gun at Bartolome Arellano. Frias maintained such position while
Bartolome Arellano was behind the ‘RIC’ concrete marker and fired once
at the latter. Then, when Bartolome Arellano went to the place of the
‘silag’ tree, Frias remained thereat and when Bartolome Arellano was
moving to the national road, Frias stood in the middle of the road and
fired again but he (witness) could not tell if the victim was hit. After
Bartolome Arellano was shot by Tacas, said victim slowly slumped to the
ground and thereafter, Frias went home. It was Tacas who first fired at
the victim when the victim was passing near the store. Frias fired
later at the victim who was then slowly slumping to the ground. He
subsequently saw Edita, daughter of the deceased, crying by the side of
her fallen father, so this witness re­collected.

“He likewise divulged that he executed his affidavit (Exhibit G)
on September 14, 1980 before Provincial Fiscal Bello in Aparri, Cagayan.
Afraid that the culprits might kill him, he motored 30 kilometers to
Aparri to subscribe and swear to such sworn statement of his. He is not
related in anyway to the deceased. He actually saw Francisco Arellano at
the crime scene. He even told Sianing Arellano, a brother of the
deceased, of that fact.

“On cross-examination, this prosecution witness testified further
that his permanent place of abode is Dapdap, Amulong, Cagayan, more or
less 80 kilometers from Simpatuyo, Sta. Teresita. However, he used to go
to Sta. Teresita for vacation. He only does not know if the people of
said place know him well. In the last week of July 1980, he was staying
in the house of his cousin, Ernesto Lazo, four houses from Gervacio
Tacas’ house. Before July 23, 1980, he did not personally know Bartolome
Arellano. Although he knows Raymundo Arellano, supposed to be one of
the richest resident in the place, he was not aware that Raymundo is the
father of Bartolome. Reminiscing how he happened to be a witness in the
case, this witness disclosed that upon the request of Sianing Arellano,
Ernesto Lazo asked him if he was really present during the happening of
the incident in question and he answered his cousin affirmatively. He
admitted, however, that he was never investigated by the police. Not
having been asked by the police officers who were at the crime scene, he
did not volunteer any information. Neither did he let Edita, daughter
of the deceased, know what he saw. He only decided to give his written
statement on September 14, 1980 in Aparri in which statement he was not
able to mention the presence of Francisco Arellano at the crime scene.
Said affidavit of his was made by Atty. Jose Brillantes in Bugey,
Cagayan in the presence of another witness and a brother of the
deceased. Prior thereto, he was also called once by Mayor Bernoli
Arquero of Sta. Teresita and requested by the Mayor to testify for the
prosecution; but the sole reason for him to tes­tify in court is to help
the court gather the truth regarding the shooting incident under
inquiry.

“This witness also narrated that it was only after the incident at
bar that he learned that Jaime Yerre, Jr. and Manuel Pajela were also
shot on August 3, 1980 and he heard that it was Bartolome Arellano who
shot the two during a mahjong game; but he does not know if the buckshot
used by Bartolome Arellano in shooting said victims was recovered by
the police authorities. According to him, Bartolome Arellano was not
carrying anything when he saw him after hearing the first burst of
gunfire.” (pp. 43-47, Rollo)

The trial court said:

“Obviously, unlawful aggression is the main ingredient of
self-defense. Without unlawful aggression, there can be no self-defense,
complete or incomplete. And it is unlawful aggression which imperils
one’s life, limb or right either actually or imminently, that makes the
invocation of self-defense feasible. In short, before he was shot to
death, did the victim create or constitute any menace to the accused?
Painstakingly evaluating the gamut of evidence at hand, We can not
divine how an unarmed person could have done unlawful aggression against
two heavily armed men. To be sure, the showing that Bartolome Arellano
was without any deadly weapon when he met his violent death is too
overwhelming to be overlooked. Waking up at 4:00 in the morning of
August 3, 1980, as was his daily routine, he cooked food for his family
after which, with short pants and ‘bad shirt’ to cover his body, he went
down for the nearby ricefield to attend to his working animal. It does
not appear that he had any gun or even a bolo. Indeed, from all
appearances, he did not go out to do violence against anybody. In fact,
he was seen later by the prosecution witnesses, notably Francisco
Arellano, Jr. and Ricardo Bilag, going from one place to another in a
determined effort to save dear life from the advancing Cervacio Tacas
and Jose Frias, Jr. who were combat-ready and armed to the teeth. Said
prosecution witnesses succinctly testified that Bartolome Arellano was
not holding anything at that unlucky moment. If he had a bulldog gun and
a bolo tucked to the waist, considering that it was already 6:00 in the
morning at the time, bright enough for everybody to observe the
happening under inquiry, it would be easy for the prosecution witnesses
to detect any weapon in the possession of the victim but the truth is he
had none and could not have been a real danger to the life and limb of
Tacas and Frias who were respectively armed with an armalite and a
carbine. As a matter of fact, the victim was actually running away.
Then, too, if there was any call for him to surrender by the heavily
armed Tacas who was assisted by Frias, Bartolome Arellano would have
meekly heeded the same, no doubt.

“All things considered, We find the victim incapable of unlawful aggression. The situation he was in belies self-defense.

“Absent unlawful aggression on the part of the victim, it is
needless for Us to discuss lengthily the other requirements for valid
self-defense. As aptly held in a recent decision of Ours, when there is
no unlawful aggression to speak of, there is nothing to defend against
or repel. And the requisites that there be reasonable necessity in the
means employed to repel unlawful aggression and lack of suffi­cient
provocation on the part of the person defending himself have no room for
application.

“Neither is the justifying circumstance of fulfillment of duty
under paragraph 5 of Article 11 of the Revised Penal Code availing, it
appearing that the victim was truly unarmed and it was not necessary to
shoot him. Peace officers are never justified in using unnecessary
force, wanton violence or dangerous means. Not even a hardened criminal
should be handled in the manner complained of.” (pp. 82-84, Rollo)

However, the Solicitor General, in his Comment, said that the findings
of the trial court are not supported by the evidence; that an objective
analysis of the evidence in fact discloses overwhelming proof that
Bartolome Arellano was armed and shot certain persons, including
appellant Tacas. He recommends acquittal of petitioners-appellants.

Manuel Pajela and Jaime Yerre, Jr. testified that while they were
playing mahjong at about 5:30 in the morning of August 3, 1980, they
were fired at with a shotgun by Bartolome Arellano. Prosecution witness
Ricardo Bilag confirms the version of the defense that Bartolome
Arellano shot and wounded Pajela and Yerre with a shotgun. Hereunder is
Bilag’s testimony on this point –

“ATTY. PAZ:

Q And you heard that first shot before you saw Jose Frias, is that right?

WITNESS:

A Yes, sir.

ATTY. PAZ:

Q Now, tell the truth Mr. witness. Did you come to know that on
the morning of August 3, 1980, Bartolome Arellano shot at the persons
who were playing mahjong at Simpatuyo and wounded two of them?

WITNESS:

A After the incident I came to know there were two persons hit.

ATTY. PAZ:

Q And these persons whom you came to know who were hurt were Jaime Yerre, Jr. and Manuel Pajela?

WITNESS:

A Yes, sir.

ATTY. PAZ:

Q And you even heard after the incident that it was Bartolome
Arellano who shot Jaime Yerre and Manuel Pajela which caused their
injury?

WITNESS:

A After that incident I also heard the same thing that he shot Jaime Yerre and Manuel Pajela.

ATTY. PAZ:

Q And you heard also that Bartolome Arellano shot them on August 3, 1980 with a buckshot?

PRESIDING JUSTICE PAMARAN:

You are assuming that he knows what a buckshot is.

ATTY. PAZ:

I will lay the basis.

JUSTICE ESCAREAL:

Q Do you know what a buckshot is known in Cagayan?

WITNESS:

A Yes, sir.

JUSTICE ESCAREAL:

Q What is it?

WITNESS:

A A gun with 13 cage bullets.

JUSTICE ESCAREAL:

Q Meaning a shotgun using 12 bullets that is usually used in some parts of Cagayan even before Martial Law?

WITNESS:

A Yes, sir.” (pp. 50-52, tsn., hearing November 19, 1981)

Further, he admitted that when he (Bilag) saw appellant Tacas that early
morning, the latter was wearing only a brief and sleeveless shirt. This
supports the testimony of Tacas that he was sleeping when he was
suddenly awakened by the sound of gunfire followed by cries of Pajela’s
wife for help; that looking at the window, he saw Pajela bleeding and
about to be carried inside his house; and that he then grabbed his
service armalite and went down in his brief and undershirt. As observed
by the Solicitor General, if Tacas did plan the killing of Arellano, he
would have put on a more respectable attire. The fact that he went out
in the street in his brief confirms the truth of his testimony that he
merely responded to an urgent call for help.

Dr. Ferdinand Cariño of the Ponce Enrile Memorial Hospital testified
that on August 3, 1980 he treated Manuel Pajela and Jaime Yerre for
gunshot wounds and were thereafter confined at the hospital.

With respect to the testimony of Francisco Arellano, the Solicitor
General claims that the same is “so unbelievable that no one hardly
knows where to begin in pointing out the falsity of his declaration.
Thus:

“1. The improbability of F. Arellano’s testimony is no more
manifest than from his claim that he was present when the crime was
committed. Could it be believed that Tacas, a veteran policeman for 24
years, would be so rash as to ambush the deceased in the presence of his
first degree cousin? (pp. 23-24, tsn., October 28, 1981).

“2. The testimony of F. Arellano that Bartolome Arellano was
shot while unarmed and in cold-blood is rendered more improbable by the
time and place of the incident. The road is hardly the place to commit
murder, especially when it is ‘already bright.’ (pp. 20, 27, tsn.,
October 29, 1981).

“3. F. Arellano testified that before the shooting, there were
many people near the bridge who witnessed the shooting. They were
‘Edring, Dianong, Mr. Consejal Pagarigan, Macario Soliven, Ernesto
Gallardo’ and the father of the victim (pp. 32-34, tsn, October 29,
1981). Why would Tacas kill B. Arellano under the circumstances depicted
by the prosecution? Common sense dictates against acceptance of a story
that pictures a lawman kill­ing an old and defenseless man for no
apparent reason and in the presence of so many witnesses.

“4. F. Arellano could not even be consistent. On direct
examination, he declared that he was beside Tacas when the latter shot
and killed B. Arellano (p. 8, Decision). On cross-examination, he was no
longer beside Tacas but five to six meters away (p. 9, Decision).

“5. F. Arellano declared that Tacas was wearing ‘short pants’
(p. 11, Decision). What the other eyewitness for the prose­cution saw
was something else. According to Bilag, Tacas was wearing only a ‘brief’
(p. 11, Decision). If indeed Tacas was wearing a brief, Bilag’s
testimony complements the testimony of Tacas that he was sleeping when
awakened by the sound of gunfire and hurriedly went down to investigate.
Either F. Arellano or Bilag is lying. Both can not be right.

“6. F. Arellano’s testimony was that Tacas and Frias were walking when they met B. Arellano (p. 8, Decision). What Bilag saw was B. Arellano being followed by Tacas (p. 11, Decision).

“7. F. Arellano declared that Tacas shot B. Arellano upon
seeing him (p. 8, Decision appended to Petition). Bilag’s testimony is
different. Although on direct examination, Bilag declared that Tacas
fired two shots when B. Arellano hid behind the ‘RIC’ concrete marker,
he clarified this on cross-examination, declaring that when Tacas fired
his first shot, the gun was aimed upwards (p. 64, tsn., November 19,
1981). Bilag further testified that when B. Arellano reached the silag
tree, Tacas fired another shot aimed ‘upwards’ (p. 69, id.)

“x x x             x x x                 x x x

“8. F. Arellano was not listed as one of the prosecution
witnesses. He simply appeared out of the blue as a witness for the
prosecution on October 28, 1981, one year, two months after the incident
and while the trial was in progress. In fact, his affidavit was
executed only the day before he testified, or on October 27, 1981.

“His appearance only at the trial is unnatural because, according
to him, he had told the widow of the victim and his uncles, Raymundo
Arellano and Tolentino Arellano, at the wake that he witnessed the
incident (p. 33, tsn., October 28, 1981; pp. 12-15, tsn., October 29,
1981). He also claims to have told Edita, the victim’s daughter, after
the burial (p. 32, tsn., October 28, 1981). And yet he was not
investigated. Nor did he present himself for investigation to the
police, PC or fiscal. Plainly, he was a conjured witness for the
prosecution.

“x x x             x x x                 x x x

“9. There is paucity of material details in the testimony of F.
Arellano. Thus, Bilag who was farther away from Tacas heard more of
Tacas’ words and saw more of Tacas’ movements and actions than F.
Arellano who claims to have been only a few meters distant from Tacas.

“10. F. Arellano testified that he saw Ricardo Bilag before and
after the shooting near or at the scene of the crime (pp. 30-34, tsn.,
October 29, 1981).

“According to Bilag, he was not investigated by the police because
he ‘did not get near the scene of the crime’ (p. 38, tsn., November 19,
1981).

“11. The testimony of F. Arellano starts only from the time Tacas
and Frias were about to shoot B. Arellano. It does not therefore refute
the testimony of the defense witnesses that before Arellano was killed,
he shot Manuel Pajela and Jaime Yerre, Jr. with a shotgun.” (pp.
129-131, 134-135, Rollo)

On the other hand, appellant Gervacio Tacas testified that “at about
5:00 in the morning of August 3, 1980, he was awakened from his sleep by
the sound of gunfire, that hearing a woman shouting for help east of
his house, he opened the window and saw Pajela slumped on a table, blood
oozing from his body, that he grabbed his armalite rifle, went out and
saw Bartolome Arellano with a gun proceeding towards the RIC marker (p.
20-26, tsn., January 11, 1983.” (pp. 126-127, Rollo)

Appellant Jose Frias testified that “at about 5:30 in the morning of
August 3, 1980, he was awakened when he heard a loud explosion coming
from the eastern side of his house, that he looked out of the window and
saw Pajela lying on a table, bleeding, that he went down and saw Tacas,
his father-in-law, calling upon Bartolome Arellano to surrender; and
that Bartolome Arellano was in the street proceeding towards the RIC
marker, and that Bartolome Arellano was armed with a “bulldog” shotgun
(pp. 5-9, tsn., March 14, 1983).” (p. 127, Rollo)

The testimonies of petitioners-appellants were corroborated by Teodoro
Paguirigan, a nephew of Bartolome Arellano; Modesto Macarubbo, Station
Commander of Sta. Teresita Police Station, and Cpl. Silvino
Tabarrejo.

Teodoro Paguirigan declared that when he heard gunfires at about 5:00 in
the morning of August 3, 1980, he stood-up, looked out of the window
and saw Bartolome Arellano leaving the house of Pajela with a shotgun on
his hand and a bolo on his waist. Later, Paguirigan saw Bartolome
Arellano point his gun and shot at Tacas.

Modesto Macarubbo testified that when he arrived at the scene of the
incident, he recovered a shotgun and a bolo from under the body of
Bartolome Arellano. The gun had one (1) empty shell in its chamber.

Corporal Silvino Tabarrejo, who arrived at the place with Commander
Macarubbo, said Bartolome Arellano’s right hand was holding a homemade
shot gun while on his waist was tucked a knife.

The above testimonies find corroboration on the fact that pellets, gauge
12 (Exhibits 1-b-2 and 1-b-3) were extracted by the police from one of
the posts of Eny Peralta’s store where appellant Tacas sought cover.
These pellets match the empty shell, which is also gauge 12, found in
the shotgun’s chamber (Exhibit 1-b). As correctly observed by the
Solicitor General, “these items, taken together with the testimonies of
both the defense and prosecution witnesses, indubitably prove that
Bartolome Arellano was armed and he shot at appellant Tacas.” (p. 128, Rollo)

The law recognizes the non-existence of a crime when it expressly stated
in the opening sentence of Article 11 of the Revised Penal Code that
the persons therein mentioned “do not incur any criminal liability” If
there is a circumstance justifying the defendant’s act, he is exempt
from both criminal and civil liability, except in paragraph 4 of this
Article 11, where the civil liability is borne by the persons benefited
by the act.

The fifth justifying circumstance which exempts a persons from criminal
liability is found in this provision: “Any person who acts in the
fulfillment of a duty or in the lawful exercise of a right or office.”
The requisites of the defense of fulfillment of duty are: (1) that the
accused acted in the performance of a duty or in the lawful exercise of a
right or duty; (2) that the injury caused or the offense committed be
the necessary consequence of the due performance of duty or the lawful
exercise of such right.

The Solicitor General expressed the view, with reason, that Tacas acted
in the performance of his duty. Again, We quote from the brief of the
Solicitor General:

“x x x The information clearly states so, thus: ‘That the crime
was committed by the accused Gervacio Tacas in relation to his office as
a policeman’ (p. 2, Decision). And so do the facts – he was awakened
from his sleep by the sound of gunfire followed by cries of a neighbor
for help; he stood up, look out of the window, saw Pajela bleeding on
top of a table about to be carried to his house; he grabbed his armalite
rifle, went out of the house, saw Bartolome Arellano with a shotgun
leaving Pajela’s yard, went after him, fired warning shots and asked him
to surrender – undisputed facts which clearly show that Tacas acted in
the performance of his duty.

“Anent the second requisite – that the injury caused or the
offense committed be the necessary consequence of duty or the lawful
exercise of right or office – it is difficult not to give Tacas the
benefit of the doubt. It is shown by the evidence that B. Arellano was
armed with a shotgun. It is undisputed that Tacas fired a warning shot,
asked B. Arellano to surrender, and then fired another warning shot. So
when B. Arellano refused to surrender but tried to elude arrest and
pointed his gun at Tacas, first at the RIC marker and then at the silag
tree, Tacas had very little choice but to use his weapon. In fact,
according to Paguirigan, B. Arellano and Tacas fired ‘simultaneously’
(p. 24, Decision).

“While there are limits to the lawful exercise of a right or duty,
at the same time, it should not be required of a policeman to
unnecessarily expose himself to peril. In this case, B. Arellano was
armed, refused to surrender, tried to elude arrest, pointed his shotgun
at Tacas and later shot at him. As it was the duty of Tacas to arrest B.
Arellano and to prevent him from escaping, sooner or later, it would
come to the point where the lawman and the suspect had to face each
other. In that crucial moment when Tacas and B. Arellano, both armed,
faced each other, they had to make a split decision of putting their
guns down or firing. They both elected to fire and B. Arellano was
killed while Tacas survived. Under these circumstances, it can hardly be
said that Tacas should not have fired at all. As his life was in peril,
his judgment can not be questioned.” (pp. 148-149, Rollo)

With respect to the case of appellant Frias, the Solicitor General
submits that “apart from the dubious and false testimonies of F.
Arellano and Bilag, the prose­cution has not shown any positive and
convincing evidence of conspiracy.” He divulged that –

“1. There is total absence of motive for Frias to shoot B.
Arellano, a fact plainly overlooked by the trial court. In the absence
of motive, it is difficult to assume that Frias conspired with Tacas in
murdering B. Arellano.

“2. There is total absence of evidence that Frias and Tacas
planned to kill B. Arellano. In fact, the circumstances surrounding the
death of B. Arellano simply point only to one question, that is, whether
the killing was justified by the defense of fulfill­ment of duty.

“3. Assuming arguendo that Frias also shot at B.
Arellano, his parti­cipation in the incident was purely accidental and
unforeseen, geared most probably to the protection of Tacas, his
father-in-law, as the trial court itself assumed (p. 58, Decision). That
negates conspiracy.

“4. The relationship of Frias and Tacas is no proof of conspiracy (People vs. Geronimo, 53 SCRA 246). (p. 156, Rollo)

“It is settled rule that conspiracy can not be presumed, but must
be proven as convincingly as the crime itself. The crime of murder has
not been proven. There is therefore hardly any reason to convict Frias
as a co-conspirator of Tacas.” (p. 157, Rollo)

ACCORDINGLY, as recommended by the Solicitor General on the ground that
Gervacio Tacas acted in the fulfillment of a duty and in the legitimate
exercise of his authority, said appellant is hereby ACQUITTED of the
crime charged.

For insufficiency of evidence, appellant Jose Frias, Jr. is also ACQUITTED.

SO ORDERED.

Makasiar, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la Fuente, and Cuevas JJ., concur.

Fernando, C.J., Teehankee, Aquino, and Abad Santos, JJ., no part.