Frias, Jr. vs. People

A police officer who, in the performance of his duty, pursues an armed suspect who refuses to surrender and fires at him, and kills the suspect in the ensuing encounter, acts in the fulfillment of duty or lawful exercise of a right or office under Article 11(5) of the Revised Penal Code and incurs no criminal liability; conspiracy, however, cannot be presumed and must be proven as convincingly as the crime itself.

Gervacio Tacas was a member of the police force of Sta. Teresita, Cagayan, with 24 years of service, and was on duty on August 3, 1980. Jose Frias, Jr. is Tacas’s son-in-law. The case arose from the killing of Bartolome Arellano, a farmer, and implicated the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under Article 11(5) of the Revised Penal Code and the crime of murder under Article 248.

On August 3, 1980, Bartolome Arellano, a 56-year-old farmer from Simpatuyo, Sta. Teresita, Cagayan, rose at 4:00 a.m., prepared food, and went to the ricefield to see his carabao, wearing short pants and a sweater or “bad shirt” and carrying no weapon. Around 5:30 a.m., his daughter Edita Arellano heard a single gunfire followed by three shots and a series of gunshots; someone running told her that her father was dead. She rushed to the highway and found him face down, hands and feet stretched, with his right forearm supporting his forehead. Policemen were taking photographs. Cpl. Tabarrejo turned the body face upward and placed a gun and knife over the abdomen, after which more photographs were taken; Edita did not see where Tabarrejo obtained the gun and knife. She was crying hysterically and watched.

Francisco Arellano, a first cousin of the deceased and a second cousin of Tacas, testified for the prosecution. On the night of August 2, 1980, he slept in a dance hall within the poblacion of Sta. Teresita and went home at about 5:00 a.m., reaching Simpatuyo by jeep an hour later. He met Tacas on the bridge; Tacas was in underwear, holding an armalite, and was with Jose Frias, Jr., who was armed with a carbine. Francisco trailed Tacas about one and a half meters away on the same side of the barangay road while Frias walked about eight meters away on the other side. He saw Frias aiming a carbine at Bartolome Arellano, who was facing Tacas and about eight meters from Frias, unarmed and walking slowly in a stooping manner. Tacas shot first, then Frias also fired; Francisco could not tell if Bartolome was hit then. Bartolome ran, and Tacas moved as if to meet him; when Bartolome noticed Tacas approaching, he turned and ran back to his former position, even as Frias moved to the “RIC” hollow-block marker and Tacas returned to the edge of the LB canteen. Francisco was beside Tacas when Tacas and Frias fired. Both fired twice, but more reports came from Tacas, who touched the automatic lever of his gun. After the firing, Arellano whirled around and fell face down near a palm tree. Francisco was only a meter from Tacas and five to six meters from Frias when they shot. After the victim fell dead, Francisco said, “No more, Manong,” but Tacas warned him, “Get away from there; otherwise, I will pulverize your face.” He left. He admitted that he was never investigated by the police, did not present himself to the PC authorities, and executed an affidavit for the first time only the day before he testified before Fiscal Ferrer. He never moved away but did not come forward earlier because people in the locality made him understand that he was disqualified as a witness in a case involving his first cousin. He was at the scene when police probers arrived but, because he was not asked, did not volunteer information. He told Edita that he witnessed the shooting, but she said, “Never mind, Tatang.” During the burial he told relatives, including his uncles Mando Arellano and Tolentino Arellano, and the widow; during the wake there were police investigators, but nobody inquired, so he did not tell them. He insisted that the victim was carrying nothing and was wearing short pants and a “bad shirt.”

Ricardo Bilag, a security guard who stayed in barangay Simpatuyo from July 23, 1980 to January 1981 with his cousin Ernesto Lazo, testified that on August 3, 1980 he woke at 5:45 a.m. by a window facing the national road to San Vicente and witnessed the killing. Bartolome Arellano was walking on the national road, followed by Tacas with an armalite; Tacas wore only a brief and sleeveless shirt. Jose Frias, Jr. stood behind Tacas on the road with a carbine. Francisco Arellano was at the far end of the barangay road, walking to and fro about four meters from Tacas. Bartolome was without any weapon, wearing dark shoes and a brown long-sleeved shirt. When Tacas followed Bartolome, the latter hid behind the “RIC” concrete marker while Tacas aimed at him. After Tacas fired twice, Bartolome ran toward a “silag” tree about 12 meters from the RIC marker, but Tacas followed, crossed the national road, and went near the tree. When Bartolome tried to go to the national road and passed by the store, Tacas shot him. At that precise time, Frias was at the roadside, lying stomach down and aiming his gun at Bartolome. Frias fired once while Bartolome was behind the RIC marker, and later stood in the middle of the road and fired again when Bartolome moved to the national road; Bilag could not tell if the victim was hit. After Tacas shot Bartolome, the victim slowly slumped to the ground and Frias went home. Bilag executed his affidavit on September 14, 1980 before Provincial Fiscal Bello in Aparri, Cagayan, motoring 30 kilometers because he feared the culprits might kill him. He was not related to the deceased. He saw Francisco Arellano at the crime scene and told Sianing Arellano, the deceased’s brother. On cross-examination, he said his permanent residence was Dapdap, Amulong, Cagayan, about 80 kilometers from Simpatuyo; he used to go to Sta. Teresita for vacation. He did not personally know Bartolome before July 23, 1980. He was never investigated by the police, did not volunteer information at the scene, and did not tell Edita what he saw. In his affidavit he did not mention Francisco Arellano’s presence at the crime scene. He was once called by Mayor Bernoli Arquero and requested to testify for the prosecution, but his sole reason for testifying was to help the court gather the truth. He learned after the incident that Jaime Yerre, Jr. and Manuel Pajela were also shot on August 3, 1980 and heard that Bartolome shot them during a mahjong game.

Manuel Pajela and Jaime Yerre, Jr. testified that while they were playing mahjong at about 5:30 a.m. on August 3, 1980, Bartolome Arellano fired at them with a shotgun. Prosecution witness Bilag confirmed that Bartolome shot and wounded Pajela and Yerre with a shotgun. Bilag also admitted that when he saw Tacas that early morning, Tacas was wearing only a brief and sleeveless shirt. Tacas testified that at about 5:00 a.m. he was awakened by the sound of gunfire; 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; he grabbed his armalite rifle, went out, and saw Bartolome Arellano with a gun proceeding toward the RIC marker. Frias testified that at about 5:30 a.m. he was awakened by a loud explosion from the eastern side of his house; he looked out and saw Pajela lying on a table, bleeding; he went down and saw Tacas, his father-in-law, calling on Bartolome Arellano to surrender; Bartolome was in the street proceeding toward the RIC marker and was armed with a “bulldog” shotgun. 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 confined them at the hospital.

Teodoro Paguirigan, a nephew of Bartolome Arellano, declared that when he heard gunfire at about 5:00 a.m. on August 3, 1980, he stood up, looked out the window, and saw Bartolome leaving the house of Pajela with a shotgun in hand and a bolo on his waist; later, Paguirigan saw Bartolome point his gun and shoot at Tacas. Modesto Macarubbo, Station Commander of the Sta. Teresita Police Station, testified that when he arrived at the scene, he recovered a shotgun and a bolo from under Bartolome’s body; the gun had one empty shell in its chamber. Cpl. Silvino Tabarrejo, who arrived with Commander Macarubbo, said Bartolome’s right hand was holding a homemade shotgun while a knife was tucked at his waist. Pellets, gauge 12 (Exhibits 1b2 and 1b3), were extracted by the police from one of the posts of Eny Peralta’s store where Tacas sought cover; these matched the empty shell, also gauge 12, found in the shotgun’s chamber (Exhibit 1b). The Solicitor General observed that these items, taken together with the testimonies of both defense and prosecution witnesses, indubitably proved that Bartolome Arellano was armed and shot at Tacas.

The Sandiganbayan found that Bartolome Arellano was unarmed and incapable of unlawful aggression, and that it was not necessary to shoot him; it rejected Tacas’s claims of self-defense and fulfillment of duty. The Solicitor General, in his Comment, stated that the trial court’s findings were not supported by the evidence and that an objective analysis disclosed overwhelming proof that Bartolome Arellano was armed and shot persons, including Tacas, and recommended acquittal.

• Self-Defense and/or Fulfillment of Duty (Tacas): Petitioner Tacas admitted having shot Bartolome Arellano on August 3, 1980, but claimed that he did so in self-defense and/or in the fulfillment of duty or lawful exercise of a right or office.
• Reversal of Sandiganbayan Conviction: Petitioners-appellants sought reversal of the Sandiganbayan decision through a petition for review by certiorari.

• Tacas Acted in Fulfillment of Duty: The Solicitor General expressed the view that Tacas acted in the performance of his duty: he was awakened by gunfire and cries for help, saw Pajela bleeding, grabbed his armalite, went out, saw Bartolome with a shotgun leaving Pajela’s yard, pursued him, fired warning shots, and asked him to surrender. These undisputed facts showed Tacas acted in the performance of his duty.
• Necessity of Force: The Solicitor General argued that when Bartolome refused to surrender, tried to elude arrest, and pointed his shotgun at Tacas, Tacas had little choice but to use his weapon; a policeman should not be required to unnecessarily expose himself to peril.
• No Conspiracy Against Frias: The Solicitor General submitted that apart from the dubious testimonies of Francisco Arellano and Bilag, the prosecution showed no positive and convincing evidence of conspiracy; there was total absence of motive and evidence of a plan; assuming Frias shot, his participation was accidental and unforeseen, geared to protecting Tacas, his father-in-law, which negates conspiracy; relationship alone is no proof of conspiracy.
• Prosecution Witnesses Unreliable: The Solicitor General claimed Francisco Arellano’s testimony was unbelievable and pointed to inconsistencies, including his belated appearance and execution of an affidavit only the day before testifying, and conflicts with Bilag’s testimony.

• Tacas’s Criminal Liability: Whether Gervacio Tacas is criminally liable for the killing of Bartolome Arellano, or whether he acted in self-defense and/or in the fulfillment of duty or lawful exercise of a right or office.
• Frias’s Criminal Liability / Conspiracy: Whether Jose Frias, Jr. is criminally liable as a co-conspirator in the killing, or whether conspiracy was proven beyond reasonable doubt.

• Tacas’s Criminal Liability: No. Tacas was acquitted on the ground that he acted in the fulfillment of a duty and in the legitimate exercise of his authority, as recommended by the Solicitor General; Article 11(5) of the Revised Penal Code exempts from criminal liability a person who acts in the fulfillment of a duty or lawful exercise of a right or office.
• Frias’s Criminal Liability / Conspiracy: No. Frias was acquitted for insufficiency of evidence; conspiracy cannot be presumed but must be proven as convincingly as the crime itself, and the prosecution failed to show positive and convincing evidence of conspiracy.

• Tacas’s Criminal Liability: The Court adopted the Solicitor General’s recommendation. The opening sentence of Article 11 of the Revised Penal Code provides that the persons therein mentioned do not incur any criminal liability. The fifth justifying circumstance exempts “[a]ny person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.” Its requisites are: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or duty; and (2) the injury caused or the offense committed was the necessary consequence of the due performance of duty or the lawful exercise of such right. The information stated that the crime was committed by Tacas in relation to his office as a policeman. The facts showed Tacas was awakened from sleep by gunfire followed by cries of a neighbor for help; he saw Pajela bleeding on a table about to be carried inside; he grabbed his armalite rifle, went out, saw Bartolome Arellano with a shotgun leaving Pajela’s yard, went after him, fired warning shots, and asked him to surrender. Bartolome refused to surrender, tried to elude arrest, and pointed his gun at Tacas, first at the RIC marker and then at the silag tree; Paguirigan testified that Bartolome and Tacas fired simultaneously. Pellets, gauge 12, extracted from posts of Eny Peralta’s store where Tacas sought cover matched the empty shell, also gauge 12, found in the shotgun’s chamber. Thus, Bartolome was armed and shot at Tacas. While there are limits to the lawful exercise of a right or duty, a policeman should not be required to unnecessarily expose himself to peril. It was Tacas’s duty to arrest Bartolome and prevent him from escaping; when the two armed men faced each other, they had to make a split decision, and Tacas’s life was in peril, so his judgment could not be questioned. The injury caused was the necessary consequence of the due performance of his duty.
• Frias’s Criminal Liability / Conspiracy: The Solicitor General submitted that, apart from the dubious and false testimonies of Francisco Arellano and Bilag, the prosecution had not shown any positive and convincing evidence of conspiracy. There was total absence of motive for Frias to shoot Bartolome and total absence of evidence that Frias and Tacas planned to kill him. Assuming Frias also shot at Bartolome, his participation was purely accidental and unforeseen, geared most probably to protecting Tacas, his father-in-law, which negates conspiracy. The relationship of Frias and Tacas is no proof of conspiracy. Conspiracy cannot be presumed but must be proven as convincingly as the crime itself. The crime of murder was not proven, so there was hardly any reason to convict Frias as a co-conspirator of Tacas.

• Fulfillment of Duty or Lawful Exercise of a Right or Office — Under Article 11(5) of the Revised Penal Code, a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur criminal liability. The requisites are: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or duty; and (2) the injury caused or the offense committed was the necessary consequence of the due performance of duty or the lawful exercise of such right. The Court applied this to Tacas, a policeman who responded to a shooting call, pursued an armed suspect who refused to surrender and shot at him, and killed the suspect in the encounter.
• Conspiracy Must Be Proven as Convincingly as the Crime Itself — Conspiracy cannot be presumed; it must be established by positive and convincing evidence. Relationship between co-accused, such as that between Frias and Tacas, is not proof of conspiracy. The Court applied this to acquit Frias because the prosecution failed to prove a common design or plan.
• Limits on a Peace Officer’s Use of Force — Peace officers are never justified in using unnecessary force, wanton violence, or dangerous means, but they are not required to unnecessarily expose themselves to peril. When an armed suspect refuses to surrender, tries to elude arrest, and points a weapon at the officer, the officer may use his weapon in the lawful performance of duty. The Court relied on this in finding Tacas’s use of force justified.

• “The fifth justifying circumstance which exempts a person 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.” — States the requisites of the justifying circumstance applied to acquit Tacas.
• “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.” — Articulates the rationale for holding that Tacas did not exceed the lawful exercise of his duty.
• “It is settled rule that conspiracy can not be presumed, but must be proven as convincingly as the crane itself. The crime of murder has not beer proven. There is therefore hardly any reason to convict Frias as a co-conspirator of Tacas.” — States the basis for Frias’s acquittal for insufficiency of evidence of conspiracy. (Quoted verbatim from the text, including its typographical errors.)
• “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.” — Sets out the dispositive portion of the decision.

• People vs. Geronimo, 53 SCRA 246 — Cited for the rule that the relationship of Frias and Tacas is no proof of conspiracy. The Court used it to reject the inference of conspiracy based on their relationship alone.

• Article 11, paragraph 5, Revised Penal Code — Provides the justifying circumstance of fulfillment of duty or lawful exercise of a right or office. The Court applied its two requisites to acquit Tacas.
• Article 11, opening sentence, Revised Penal Code — States that the persons therein mentioned do not incur any criminal liability. The Court used this to explain the non-existence of a crime when a justifying circumstance is present.
• Article 11, paragraph 4, Revised Penal Code — The Court noted that, as an exception to exemption from civil liability, civil liability is borne by the persons benefited by the act in paragraph 4. This exception was not applied to Tacas, whose justifying circumstance was paragraph 5.
• Article 248, Revised Penal Code — Defines and penalizes murder. The Sandiganbayan convicted appellants under this provision, qualified by taking advantage of superior strength, but the Supreme Court acquitted them.
• Indeterminate Sentence Law — Applied by the Sandiganbayan in imposing the indeterminate penalties on Tacas and Frias; it became irrelevant upon their acquittal.

Makasiar, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana Escolin, Gutierrez, Jr., De la Fuente, and Cuevas, JJ., concurred. Fernando, C.J., Teehankee, Aquino, and Abad Santos, JJ., took no part. No separate concurring opinions are summarized in the text.