G.R. No.

191913 March 21, 2012

SPO2 LOLITO T. NACNAC, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
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 udgment. The conscience must be satisfied that on the accused
could be laid the responsibility for the offense charged. !f 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 ac#uit him.
$
This treats of the %otion for Reconsideration of &ur Resolution dated 'ugust (), (*$*,
affirming the +uly (*, (**, -ecision
(
of the .ourt of 'ppeals /.'0 in .'12.R. .R13...
4o. 5*,*6 entitled People of the Philippines v. SP&( 7olito T. 4acnac. The .' affirmed
the %ay (5, (**6 +udgment
5
in .riminal .ase 4o. $*6)*1$8 of the Regional Trial .ourt
/RT.0, 9ranch $8 in 7aoag .ity, which convicted petitioner of homicide.
The :acts
'n !nformation charged the accused as follows;
That on or about :ebruary (*, (**5, in -ingras, !locos 4orte, and within the urisdiction
of this 3onorable .ourt, accused SP&( 7olito !. 4acnac, a public officer, being then a
member of the Philippine 4ational Police, assigned with the -ingras Police Station,
-ingras, !locos 4orte, did then and there willfully, unlawfully and feloniously, with
intent to kill, shoot one SP&$ -oddie Espeo with a gun resulting into the latters death.
8
' reverse trial ensued upon the claim of self1defense by the accused. 's summari<ed by
.',
)
the shooting incident happened as follows;
The victim, SP&$ -oddie Espeo=,> had a history of violent aggression and drunkenness.
3e once attacked a former superior, P?!nsp. 7aurel 2ayya, for no apparent reason. &n the
day of his death, he visited a cock house for merriment. 3e was shot by accused1
appellant =petitioner> on :ebruary (*, (**5 at around $*;** p.m. at the -ingras Police
Station, -ingras, !locos 4orte.
&n that fateful night of :ebruary (*, (**5, accused1appellant, the victim and a number of
other police officers were on duty. Their shift started at @;** in the morning of the same
day, to end at @;** the neAt morning. 'ccused1appellant, being the highest ranking officer
during the shift, was designated the officer1of1the1day. Shortly before $*;** in the
evening, the victim, together with then SP&$ Eduardo 9asilio, took the patrol tricycle
from the station grounds. Bhen accused1appellant saw this, he stopped the victim and his
colleague from using the tricycle. The victim told accused1appellant that he /the victim0
needed it to go to 7aoag .ity to settle a previous disagreement with a security of a local
bar.
'ccused1appellant still refused. 3e 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. 3e told accused1appellant in !locano; C!yot ni inam kapiC /.oitus of your
mother, cousinD0. The victim alighted from the tricycle. SP&$ Eduardo 9asilio did the
same, went inside the office, and left the accused1appellant and the victim alone. The
victim took a few steps and drew his .8) caliber gun which was tucked in a holster on the
right side of his chest. 'ccused1appellant then fired his %1$E armalite upward as a
warning shot. Fndaunted, the victim still drew his gun. 'ccused1appellant then shot the
victim on the head, which caused the latters instantaneous death. 'ccused1appellant later
surrendered to the stations .hief of Police.
The RT. Ruling
The RT. found the accused guilty of the crime charged. The RT. held that the claim of
self1defense by the accused was unavailing due to the absence of unlawful aggression on
the part of the victim. The dispositive portion of the RT. +udgment reads;
B3ERE:&RE, the accused SP&( 7olito 4acnac is found 2F!7TG beyond reasonable
doubt of the crime of homicide. Taking into account the mitigating circumstance of
voluntary surrender, the .ourt hereby sentences him to an indeterminate penalty ranging
from E!23T GE'RS of prision mayor as minimum to :&FRTEE4 GE'RS of reclusion
temporal as maAimum. 3e is also ordered to pay the heirs of the deceased /$0 P)*,***.**
as indemnity for his death, /(0 P$**,***.** as actual damages, /50 P)*,***.** as moral
damages, and /80 P(*,***.** as attorneys fees. .osts against the accused.
E
The .' Ruling
&n appeal, the .' affirmed the findings of the RT.. !t held that the essential and primary
element of unlawful aggression was lacking. !t 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 &fficer ( /SP&(0 7olito T. 4acnac. The fallo of the .' -ecision reads;
B3ERE:&RE, the instant appeal is -!S%!SSE- for lack of merit and the challenged
+udgment dated %ay (5, (**6 in .riminal .ase 4o. $*6)*1$8 is '::!R%E- !4 T&T&.
6
&n 'ugust (), (*$*, this .ourt issued a Resolution, denying 4acnacs petition for review
for failure to sufficiently show that the .' committed any reversible error in the
challenged decision and resolution as to warrant the eAercise of this .ourts appellate
urisdiction.
&n &ctober $$, (*$*, petitioner filed a %otion for Reconsideration of this .ourts
Resolution dated 'ugust (), (*$*. &n %arch ($, (*$(, this .ourt granted the %otion
and reinstated the petition. Petitioner raises the following issues;
$. =Bhether the .' erroneously held that> the victims drawing of his handgun or
pointing it at the petitioner is not sufficient to constitute unlawful aggression
based on eAisting urisprudence.
(. =Bhether the .' incorrectly appreciated the photo> showing the victim holding
his handgun in a peculiar manner despite the fact that no eApert witness was
presented to testify thereto A A A.
5. =Bhether petitioner> has met the second and third re#uisites of self1defense A A
A.
@
Petitioner argues that he did not receive a ust and fair udgment based on the following;
/$0 the trial court did not resort to eApert testimony and wrongly interpreted a photograph"
/(0 the trial court ignored the evidence proving unlawful aggression by the victim" /50 the
trial court ignored the two gun reports and two empty shells found at the crime scene
which support the claim that petitioner fired a warning shot" and /80 the trial court failed
to appreciate petitioners act of self1defense. Petitioner also claims that the .' gravely
erred in not giving proper weight and due consideration to the .omment of the &ffice of
the Solicitor 2eneral /&S20.
!n its .omment
,
dated 'pril (6, (*$$, the &S2 avers that petitioner is entitled to an
ac#uittal, or at the very least, not one but two mitigating circumstances.
&ur Ruling
Be revisit &ur ruling in the instant case.
The Revised Penal .ode provides the re#uisites for a valid self1defense claim;
'RT. $$. +ustifying circumstances.HHThe following do not incur any criminal liability;
$. 'nyone who acts in defense of his person or rights, provided that the following
circumstances concur;
:irst. Fnlawful aggression"
Second. Reasonable necessity of the means employed to prevent or repel it"
Third. 7ack of sufficient provocation on the part of the person defending himself.
Fnlawful 'ggression
Fnlawful aggression is an indispensable element of self1defense. Be eAplained, CBithout
unlawful aggression, self1defense will not have a leg to stand on and this ustifying
circumstance cannot and will not be appreciated, even if the other elements are present.C
$*
!t would Cpresuppose an actual, sudden and uneApected attack or imminent danger on the
life and limb of a personHHnot a mere threatening or intimidating attitudeHHbut most
importantly, at the time the defensive action was taken against the aggressor. A A A There
is aggression in contemplation of the law only when the one attacked faces real and
immediate threat to ones life. The peril sought to be avoided must be imminent and
actual, not ust speculative.C
$$
's Be 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. 3ence, a threat, even if
made with a weapon, or the belief that a person was about to be attacked, is not sufficient.
!t is necessary that the intent be ostensibly revealed by an act of aggression or by some
eAternal acts showing the commencement of actual and material unlawful aggression.
$(
The following eAchange showing actual and material unlawful aggression transpired
during the eAamination of petitioner;
$5
'tty. 7a<o; 't any rate, when you again prevented them from getting the tricycle telling
them again that they should not get the tricycle, what happened neAtI
'ccused; Bhen police officer 9asilio alighted from the tricycle SP&$ Espeo also
alighted sir.
J Bhat did -oddie Espeo do when he alighted from the tricycleI
' ! saw him hold his firearm tucked on his right waist. /witness demonstrating by placing
his right hand at his right sideways0. 'nd he was left handed, sir.
J 'nd what happened neAtI
' Bhen ! saw him holding his firearm that was the time ! fired a warning shot, sir.
J 'nd when you fired =a> warning shot, what happened neAtI
' 3e drew his firearm, sir.
J Bhen he drew his firearm, what did you doI
' Bhen he drew his firearm ! shot him =on> his head once, sir.
A A A A
'tty. .aigal;
J 9y the way, what kind of firearm did the victim draw from his waistI
' .al. 8), sir.
J Bhat firearm did you use in defending yourselfI
' %1$E armalite, sir.
A A A A
J 'lright, you mean to tell the 3onorable .ourt then that at the time that you pointed or
s#uee<ed the trigger of your gun the cal. 8) was already pointed at youI
' Ges, sir.
J -id you ever observe if he s#uee<ed the trigger but the gun =was> already pointed at
youI
' 3e ust pointed his firearm at me, sir.
J Bho first pointed his firearm, the victim pointed his firearm at you before you pointed
your firearm at himI
' The victim, sir.
J !n short, it was the victim whose gun was first pointed at youI
' Ges, sir.
J 'nd that was the time when you raised your armalite and also pointed the same at him
is that rightI
' Ges, that was the time that ! shot him, sir. /Emphasis supplied.0
'ccording to the trial court, petitioners claim that the victim pointed his gun at petitioner
was a mere afterthought. !t ruled that petitioners sworn statement and direct testimony as
well as the testimonies of SP&$ Eduardo 9asilio and SP&( Roosevelt 9allesteros 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. !t held that the mere act of drawing a gun cannot
be considered unlawful aggression. !n denying petitioners motion for reconsideration,
the .' 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. !t
concluded that the likelihood of the victim committing unlawful aggression in Chis
inebriated stateC was Cvery slim.C
$8
Be disagree. The characteri<ation 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;
/$0 The drunken state of the victim"
/(0 The victim was also a police officer who was professionally trained at
shooting"
/50 The warning shot fired by petitioner was ignored by the victim"
/80 ' lawful order by petitioner was ignored by the victim" and
/)0 The victim was known for his combative and drunken behavior.
's testified by the victims companion, SP&$ 9asilio, petitioner ordered him and the
victim not to leave because they were on duty. SP&$ 9asilio also confirmed that the
victim was inebriated and had uttered invectives in response to petitioners lawful order.
$)
&rdinarily, 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. !n People v. 9orreros,
$E
Be ruled
that Cfor unlawful aggression to be attendant, there must be a real danger to life or
personal safety. Fnlawful aggression re#uires an actual, sudden and uneApected attack, or
imminent danger thereof, and not merely a threatening or intimidating attitude A A A.
3ere, the act of the =deceased> of allegedly drawing a gun from his waist cannot be
categori<ed as unlawful aggression. Such act did not put in real peril the life or personal
safety of appellant.C
The facts surrounding the instant case must, however, be differentiated from current
urisprudence on unlawful aggression. The victim here was a trained police officer. 3e
was inebriated and had disobeyed a lawful order in order to settle a score with someone
using a police vehicle. ' 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, ustified in defending himself from an inebriated and disobedient
colleague. Even if Be 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.
Be #uote with approval the &S2s argument
$6
on this point;
' police officer is trained to shoot #uickly and accurately. ' police officer cannot earn
his badge unless he can prove to his trainors that he can shoot out of the holster #uickly
and accurately A A A. 2iven this factual backdrop, there is reasonable basis to presume
that the appellant indeed felt his life was actually threatened. :acing an armed police
officer like himself, who at that time, was standing a mere five meters from the appellant,
the =latter> knew that he has to be #uick on the draw. !t is worth emphasi<ing that the
victim, being a policeman himself, is presumed to be #uick in firing.
3ence, it now becomes reasonably certain that in this specific case, it would have been
fatal for the appellant to have waited for SP&$ Espeo to point his gun before the
appellant fires back.
Reasonable %eans Employed
To successfully invoke self1defense, another re#uisite is that the means employed by the
accused must be reasonably commensurate to the nature and the eAtent of the attack
sought to be averted.
$@
Supporting petitioners claim of self1defense is the lone gunshot wound suffered by the
victim.1wphi1 The nature and number of wounds inflicted by the accused are constantly
and unremittingly considered as important indicia.
$,
!n People v. .atbagan,
(*
Be aptly
held;
The means employed by the person invoking self1defense is reasonable if e#uivalent to
the means of attack used by the original aggressor.

Bhether or not the means of self1
defense is reasonable depends upon the nature or #uality of the weapon, the physical
condition, the character, the si<e and other circumstances of the aggressor" as well as
those of the person who invokes self1defense" and also the place and the occasion of the
assault.
!n 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
proAimity of the armed victim, his drunken state, disobedience of an unlawful order, and
failure to stand down despite a warning shot.
7ack of Sufficient Provocation
The last re#uisite for self1defense to be appreciated is lack of sufficient provocation on
the part of the person defending himself or herself. 's 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. 'bsent from the shooting incident was any
evidence on petitioner sufficiently provoking the victim prior to the shooting.
'll told, Be 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.
($
This rule is binding eAcept where the trial court has
overlooked, misapprehended, or misapplied any fact or circumstance of weight and
substance.
((
's earlier pointed out, the trial court did not consider certain facts and
circumstances that materially affect the outcome of the instant case. Be must, therefore,
ac#uit petitioner.
2iven the peculiar circumstances of this case, Be find that the prosecution was unable to
establish beyond reasonable doubt the guilt of petitioner. Even the &S2 shares this view
in its .omment appealing for his ac#uittal.
B3ERE:&RE, petitioners %otion for Reconsideration is 2R'4TE-. The .' -ecision
dated +uly (*, (**, in .'12.R. .R13... 4o. 5*,*6 is REKERSE- and SET 'S!-E.
Petitioner SP&( 7olito T. 4acnac is '.JF!TTE- of homicide on reasonable doubt.
The -irector of the 9ureau of Prisons is ordered to immediately RE7E'SE petitioner
from custody, unless he is being held for some other lawful cause, and to !4:&R% this
.ourt within five /)0 days from receipt of this -ecision of the date petitioner was actually
released from confinement.
S& &R-ERE-.
PRESITERO J. VELASCO, JR.