People vs. Retubado

A claim of state of necessity under Article 12, paragraph 4 of the Revised Penal Code is an affirmative defense that must be proved by the accused with clear and convincing evidence, and it fails where the accused is shown to be the unlawful aggressor who deliberately shot the victim. Treachery cannot be appreciated where the prosecution fails to prove both that the means of execution gave the victim no opportunity to defend himself and that such means were deliberately or consciously adopted.

The appellant Jesus G. Retubado and the victim Emmanuel Cañon, Sr. were neighbors in Barangay I, Poblacion, Municipality of Tuburan, Province of Cebu. The Retubado family included Edwin, the appellant's younger brother, who was mentally ill and had been confined at the Psychiatric Department of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime in 1991. Shortly before November 5, 1993, someone inserted a lighted firecracker into a cigarette pack and gave it to Edwin, who brought it home where it exploded on the dining table. The initial suspect was Emmanuel Cañon, Jr., the victim's son, but the barangay captain's investigation cleared him and considered the matter closed. The appellant, however, remained intent on confronting Emmanuel Cañon, Jr.

On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Cañon, Sr., a pedicab driver, was heading home after a day's work and stopped at the junction of Rizal and Gallardo Streets in the poblacion of Tuburan. The appellant, who was conversing with Marcial Luciño at the junction, saw him and called out, asking why Emmanuel's son had done something to the appellant's mentally ill brother Edwin. Emmanuel ignored the appellant, who became incensed and ran after him, overtaking and pushing the pedicab, which nearly fell into a canal. Emmanuel continued pedaling until he reached his house, where his wife Norberta was waiting on the balcony and his son Emmanuel, Jr. was already asleep.

The appellant followed Emmanuel to his house and tarried at the porch. When Emmanuel opened the door and demanded to know why he was being followed, the appellant said he merely wanted to talk to Emmanuel, Jr., but Emmanuel replied that his son was already asleep. Norberta went down from the balcony and placed her hand on her husband's shoulder to pacify him. According to the prosecution, the appellant then pulled out a handgun from under his T-shirt and shot Emmanuel on the forehead at close range. Emmanuel fell to the floor, and the appellant walked away casually. Norberta shouted for help; neighbors, her daughter, and her son-in-law arrived and brought Emmanuel to the Tuburan District Hospital, where he died shortly thereafter.

Dr. Ivar G. Arellano, the Municipal Health Officer, performed an autopsy and found a gunshot entry wound on the left side of the forehead, measuring 1 cm. in diameter, with powder burns measuring 3 cms. in diameter, indicating a near-contact shot. The bullet exited through the left parietal bone. The cause of death was a gunshot wound to the head with injury to the brain and meninges, and hypovolemic shock secondary to severe blood loss. A paraffin test conducted on the appellant yielded positive results for gunpowder residue on his left hand cast and negative on his right hand cast.

The appellant admitted shooting the victim but claimed he was performing a lawful act with due care. He testified that when he insisted Emmanuel wake up his son, Emmanuel went to his room and emerged holding a handgun with his right hand, the trigger finger outside the trigger guard and the muzzle facing downward. Fearing he would be shot, the appellant grabbed Emmanuel's right hand with his left, pulled the gun toward Emmanuel's stomach, then grabbed Emmanuel's free hand with his right hand. The appellant claimed that as he pulled the gun to the level of Emmanuel's forehead, the gun suddenly went off. He then rushed home to change clothes, placed the gun on the dining table, and later discovered that his brother Edwin had taken the gun and thrown it into the sea. The appellant surrendered to the police on November 6, 1993, but did not surrender the firearm. He also refused to file a counter-affidavit before the municipal trial court.

The trial court found the appellant guilty of murder, crediting the prosecution's eyewitness testimony and rejecting the defense of state of necessity. On appeal, the appellant challenged the conviction, arguing that the death was accidental, that the paraffin test results favored him, that the prosecution's sole witness was insufficient, and that the trial court erred in disregarding his explanation for failing to surrender the gun.

• State of Necessity: Whether the appellant is exempt from criminal liability under Article 12, paragraph 4 of the Revised Penal Code on the ground that the victim's death was caused by accident while the appellant was performing a lawful act with due care.
• Qualifying Circumstance of Treachery: Whether the crime committed is murder qualified by treachery or merely homicide.
• Aggravating Circumstance of Unlicensed Firearm: Whether the aggravating circumstance of use of an unlicensed firearm should be appreciated against the appellant.
• Sufficiency of Prosecution Evidence: Whether the testimony of the sole prosecution eyewitness is sufficient to sustain a conviction.
• Mitigating Circumstance of Voluntary Surrender: Whether the appellant is entitled to the mitigating circumstance of voluntary surrender.
• Damages: Whether the heirs of the victim are entitled to civil indemnity, moral damages, and temperate damages.

• State of Necessity: No. The defense of state of necessity was not proved by clear and convincing evidence; the appellant was the unlawful aggressor who deliberately shot the victim at close range on the forehead.
• Qualifying Circumstance of Treachery: No. Treachery was not established, the prosecution having failed to prove both requisites — that the means of execution gave the victim no opportunity to defend himself and that such means were deliberately adopted. The crime is homicide under Article 249 of the Revised Penal Code.
• Aggravating Circumstance of Unlicensed Firearm: No. Although the Information alleged use of an unlicensed firearm, the prosecution failed to prove that the appellant had no license to possess the firearm.
• Sufficiency of Prosecution Evidence: Yes. The eyewitness testimony of Norberta Cañon, the victim's wife, who was within arm's length of both men when the shooting occurred, was sufficient to convict.
• Mitigating Circumstance of Voluntary Surrender: Yes. The appellant turned himself in to the police authorities prior to the issuance of any warrant for his arrest.
• Damages: Yes. The heirs are entitled to ₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱25,000.00 as temperate damages, the latter awarded in lieu of actual damages due to insufficient proof.

• State of Necessity: A state of necessity under Article 12, paragraph 4 of the Revised Penal Code is an affirmative defense that must be proved by the accused with clear and convincing evidence. By admitting to causing the victim's death, the appellant must rely on the strength of his own evidence and not on the weakness of the prosecution's case. The trial court's factual findings, accorded high respect if not conclusive effect, showed that the appellant was the provocateur and the unlawful aggressor. Three factors undermined the defense: first, Norberta's eyewitness testimony established that the appellant pulled out a handgun from under his T-shirt and deliberately shot the victim on the forehead at contact distance, contradicting any claim of accidental discharge during a struggle; second, the appellant fled the scene and surrendered only the next day without the firearm, and never informed police that he acted in a state of necessity or that his brother threw the gun into the sea; third, the appellant had a clear motive — he was incensed at the victim's refusal to wake his son and at being ignored earlier. It is indispensable that the state of necessity must not be brought about by the intentional provocation of the party invoking it, which the appellant's own conduct violated.

• Qualifying Circumstance of Treachery: Treachery requires two conditions: (a) the employment of means of execution that give the person attacked no opportunity to defend himself or retaliate, and (b) the means of execution were deliberately or consciously adopted. The prosecution failed to adduce evidence supporting the confluence of both conditions. The appellant and the victim had a heated exchange of words before the shooting, which forewarned the victim and placed him on guard. Without treachery, the crime is homicide under Article 249 of the Revised Penal Code, not murder.

• Aggravating Circumstance of Unlicensed Firearm: Although the Information alleged that the appellant used an unlicensed revolver, the prosecution failed to prove that the appellant had no license to possess the firearm. An aggravating circumstance must be proven with the same certainty as the crime itself; absent such proof, it cannot be appreciated.

• Sufficiency of Prosecution Evidence: The testimony of Norberta Cañon, who was standing about an arm's length from both her husband and the appellant when the shooting occurred, was clear, categorical, and corroborated by the physical evidence — the autopsy findings showing powder burns consistent with a near-contact or contact shot to the forehead. Her testimony directly contradicted the appellant's version of a struggle over a gun. The trial court's calibration of her testimony was accorded high respect, and the appellate review found no basis to deviate.

• Mitigating Circumstance of Voluntary Surrender: The appellant surrendered to the police authorities on November 6, 1993, prior to the issuance of any warrant for his arrest, satisfying the requisites of voluntary surrender as a mitigating circumstance.

• Damages: The trial court's award of ₱50,000.00 as civil indemnity was sustained. In addition, moral damages of ₱50,000.00 were awarded, the victim's widow having testified to the sadness and loneliness caused by her husband's death. Temperate damages of ₱25,000.00 were awarded in lieu of actual damages, since no documentary evidence was offered to support the expenses incurred, though it was undisputed that the family incurred funeral and related expenses.

• State of Necessity as Affirmative Defense — A state of necessity under Article 12, paragraph 4 of the Revised Penal Code is an affirmative defense that must be proved by the accused with clear and convincing evidence. By admitting to causing the injury or death, the accused must rely on the strength of his own evidence and not on the weakness of the prosecution's evidence. It is indispensable that the state of necessity must not have been brought about by the intentional provocation of the party invoking it. The accused who is shown to be the unlawful aggressor cannot invoke this justifying circumstance.

• Requisites of Treachery — To appreciate treachery as a qualifying circumstance, two conditions must concur: (a) the employment of means of execution that give the person attacked no opportunity to defend himself or retaliate, and (b) the means of execution were deliberately or consciously adopted. The absence of either condition precludes appreciation of treachery, reducing the crime from murder to homicide.

• Deference to Trial Court's Factual Findings — The findings of fact by the trial court, its calibration of witness testimony and the probative weight thereof, and its conclusions based thereon are accorded high respect, if not conclusive effect, on appeal, unless the trial court ignored, misconstrued, or misapplied cogent facts and circumstances of substance which, if considered, would change the outcome.

• Proof of Aggravating Circumstances — An aggravating circumstance, such as the use of an unlicensed firearm, must be alleged in the Information and proven with the same certainty as the crime itself. Failure to prove the absence of a license precludes appreciation of the aggravating circumstance.

• "The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and convincing evidence." — This passage states the burden of proof placed on an accused who invokes state of necessity, establishing that the defense cannot rest on the weakness of the prosecution's case.

• "To appreciate treachery, two (2) conditions must be present, namely, (a) the employment of the means of execution that give the person attacked no opportunity to defend himself or to retaliate, and (b) the means of execution were deliberately or consciously adopted." — This is the canonical formulation of the requisites of treachery, applied here to downgrade the conviction from murder to homicide for failure of proof.

• "We have meticulously reviewed the records and find no basis to deviate from the findings of the trial court that the appellant was the provocateur, the unlawful aggressor and the author of a deliberate and malicious act of shooting the victim at close range on the forehead." — This passage applies the doctrine of deference to trial court factual findings and characterizes the appellant's conduct as deliberate and malicious, foreclosing the defense of state of necessity.

• People vs. Parba, 364 SCRA 488 (2001) — Cited as the source of the two requisites of treachery: (a) employment of means of execution giving the victim no opportunity to defend himself, and (b) deliberate or conscious adoption of such means. The Court applied this formulation to find treachery absent and downgrade the offense to homicide.

• People vs. Delim, G.R. No. 142773, January 28, 2003 — Cited in support of the award of ₱50,000.00 as civil indemnity to the heirs of the deceased victim.

• People vs. Cortez, 348 SCRA 663 (2000) — Cited in support of the award of ₱50,000.00 as moral damages.

• People vs. Abrazaldo, G.R. No. 124392, February 7, 2003 — Cited in support of the award of ₱25,000.00 as temperate damages where no sufficient proof of actual damages was offered.

• Article 12, paragraph 4, Revised Penal Code — Exempts from criminal liability any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. The Court held this provision inapplicable, the appellant having been the unlawful aggressor who deliberately shot the victim.

• Article 11, paragraph 4, Revised Penal Code — Defines the justifying circumstance of state of necessity, requiring: (a) that the evil sought to be avoided actually exists; (b) that the injury feared be greater than that done to avoid it; and (c) that there be no other practical and less harmful means of preventing it. The Court discussed the provision's Spanish origins and noted that the state of necessity must not be brought about by the intentional provocation of the invoking party.

• Article 248, Revised Penal Code — Defines and penalizes murder. The Court found its qualifying circumstance of treachery not proven and accordingly declined to convict under this article.

• Article 249, Revised Penal Code — Defines and penalizes homicide. The Court convicted the appellant under this article, imposing an indeterminate sentence of ten years of prision mayor (medium period) as minimum to fifteen years of reclusion temporal (medium period) as maximum.

Puno (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concurred.