THE PEOPLE OF THE PHILIPPINES vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE Amado Capina died a few minutes after. Barrio lieutenant, Casimiro Lozada was
C.A. No. 384 February 21, 1946
Ponencia, De Joya
Justifying circumstances are those wherein the acts of the actor are in accordance with law
and, hence, he incurs no criminal and civil liability. The justifying circumstances by subject are
as follows:
1) Self-defense
Anyone who acts in defense of his person or rights. (Art. 11, Par. 1) The scope included self-
defense not only of life, but also of rights like those of chastity, property and honor. It has
also been applied to the crime of libel. Its elements are: a) Unlawful aggression, b)
Reasonable necessity of the means employed to prevent or repel it, c) Lack of sufficient
provocation on the part of the person defending himself.
2) Defense of Relative 3) Defense of Stranger 4) State of Necessity 5) Fulfillment of duty 6)
Obedience to superior order
FACTS:
Avelina Jaurigue and Nicolas Jaurigue, her father, were prosecuted for the crime of
murder for which Nicolas was acquitted while Avelina was found guilty of homicide. She
appealed to the Court of Appeals for Southern Luzon on June 10, 1944 to completely absolve
her of all criminal responsibility for having acted in defense of her honor, to find in her favour
additional mitigating circumstances and omit aggravating circumstance.
At about 8:00 PM of September 20, 1942, Amado Capina, deceased victim, went to
the chapel of Seventh Day Adventists to attend religious services and sat at the front bench
facing the altar. Avelina Jaurigue entered the chapel shortly after the arrival of her father for
the same purpose and sat on the bench next to the last one nearest the door. Upon seeing
Avelina, Amado went and sat by Avelinas right side from his seat on the other side of the
chapel, and without saying a word, placed his hand on the upper part of her right thigh.
Avelina Jaurigue, therafter, pulled out with her right hand the fan knife which she
had in a pocket of her dress with the intention of punishing Amados offending hand. Amado
seized her right hand but she quickly grabbed the knife on her left hand and stabbed Amado
once at the base of the left side of the neck inflicting upon him a wound about 4 inches
deep, which is mortal.
Nicolas saw Capina bleeding and staggering towards the altar, and upon seeing his
daughter approached her and asked her the reason for her action to which Avelina replied,
Father, I could not endure anymore.
there and Avelina surrendered herself. Lozada advised the Jaurigues to go home immediately
for fear of retaliation of Capinas relatives.
EVENTS PRIOR:
One month before that fatal night, Amado Capina snatched Avelinas handkerchief
bearing her nickname while it was washed by her cousin, Josefa Tapay.
7 days prior to incident (September 13, 1942), Amado approached her and
professed his love for her which was refused, and thereupon suddenly embraced and kissed
her and touched her breasts. She then slapped him, gave him fist blows and kicked him. She
informed her matter about it and since then, she armed herself with a long fan knife
whenever she went out.
2 days after (September 15, 1942), Amado climbed up the house of Avelina and
entered the room where she was sleeping. She felt her forehead and she immediately
screamed for help which awakened her parents and brought them to her side. Amado came
out from where he had hidden and kissed the hand of Avelinas father, Nicolas.
Avelina received information in the morning and again at 5:00 PM on the day of the
incident (September 20, 1942) that Amado had been falsely boasting in the neighbourhood
of having taken liberties with her person. In the evening, Amado had been courting the latter
in vain.
ISSUES:
Whether or not the defendant should be completely absolved of all criminal
responsibility because she is justified in having acted in the legitimate defense of her honor.
Whether or not the Court should find the additional mitigating circumstances of
voluntary surrender, presence of provocation and absence of intent in her favour
Whether or not committing said offense in a sacred place is an aggravating
circumstance in this case
HELD:
Conviction of defendant is sustained and cannot be declared completely exempt
from criminal liability. To be entitled to a complete self-defense of chastity, there must be an
attempt to rape. To provide for a justifying circumstance of self-defense, there must be a)
Unlawful aggression, b) Reasonable necessity of the means employed to prevent or repel it,
c) Lack of sufficient provocation on the part of the person defending himself. Attempt to rape
is an unlawful aggression. However, under the circumstances of the offense, there was no
possibility of the defendant to be raped as they were inside the chapel lighted with electric
lights and contained several people. Thrusting at the base of Capinos neck as her means to
repel aggression is not reasonable but is instead, excessive.
Mitigating circumstances are considered in her favour. Circumstances include her
voluntary and unconditional surrender to the barrio lieutenant, provocation from the
deceased which produced temporary loss of reason and self-control of the defendant and
lack of intent to kill the deceased evidenced by infliction of only one single wound.
Aggravating circumstance of having committed offense in a sacred place is not
sustained as there is no evidence that the defendant had intended to murder the deceased
when she entered the chapel that night. She killed under great provocation.
Penalty: For homicide, penalty is reclusion temporal. However, with 3 mitigating
circumstances and no aggravating circumstance, it is reduced by two degrees, in this case,
prision correccional. Indeterminate Sentence Law provides the penalty ranging from arresto
mayor in its medium degree to prision correccional in its medium degree.
Avelina is sentenced to 2mos and 1 day of arresto mayor as minimum to 2 years, 4
months, and 1 day of prision correccional as maximum; to indemnify heirs of Capina in the
sum of 2,000; with corresponding subsidiary imprisonment not to exceed 1/3 of principal
penalty and to pay costs. She is given the benefit of of her preventive imprisonment
SEPARATE OPINION: Hilado questions the validity or nullity of judicial proceedings
in the Japanese-sponsored courts.
People vs. Narvaez, 121 SCRA 389 (1983)
FACTS:
Mamerto Narvaez has been convicted of murder (qualified by treachery) of David Fleischer
and Flaviano Rubia. On August 22, 1968, Narvaez shot Fleischer and Rubia during the time
the two were constructing a fence that would prevent Narvaez from getting into his house
and rice mill. The defendant was taking a nap when he heard sounds of construction and
found fence being made. He addressed the group and asked them to stop destroying his
house and asking if they could talk things over. Fleischer responded with "No, gadamit,
proceed, go ahead." Defendant lost his "equilibrium," and shot Fleisher with his shotgun. He
also shot Rubia who was running towards the jeep where the deceased's gun was placed.
Prior to the shooting, Fleischer and Co. (the company of Fleischer's family) was involved in a
legal battle with the defendant and other land settlers of Cotabato over certain pieces of
property. At the time of the shooting, the civil case was still pending for annulment (settlers
wanted granting of property to Fleisher and Co. to be annulled). At time of the shooting,
defendant had leased his property from Fleisher (though case pending and ownership
uncertain) to avoid trouble. On June 25, defendant received letter terminating contract
because he allegedly didn't pay rent. He was given 6 months to remove his house from the
land. Shooting was barely 2 months after letter. Defendant claims he killed in defense of his
person and property. CFI ruled that Narvaez was guilty. Aggravating circumstances of evident
premeditation offset by the mitigating circumstance of voluntary surrender. For both
murders, CFI sentenced him to reclusion perpetua, to indemnify the heirs, and to pay for
moral damages.
ISSUES:
1. Whether or not CFI erred in convicting defendant-appellant despite the fact that he acted
in defense of his person.
No. The courts concurred that the fencing and chiselling of the walls of the house of the
defendant was indeed a form of aggression on the part of the victim. However, this
aggression was not done on the person of the victim but rather on his rights to property. On
the first issue, the courts did not err. However, in consideration of the violation of property
rights, the courts referred to Art. 30 of the civil code recognizing the right of owners to close
and fence their land.
Although is not in dispute, the victim was not in the position to subscribe to the article
because his ownership of the land being awarded by the government was still pending,
therefore putting ownership into question. It is accepted that the victim was the original
aggressor.
2. WON the court erred in convicting defendant-appellant although he acted in defence of Judgment: Defendant guilty of homicide but w/ mitigating circumstances and extenuating
his rights. circumstance of incomplete self defense. Penalty is 4 months arresto mayor and to indemnify
each group of heirs 4,000 w/o subsidiary imprisonment and w/o award for moral damages.
Appellant has already been detained 14 years so his immediate release is ordered.

Yes. However, the argument of the justifying circumstance of self-defense is applicable only if
the 3 requirements are fulfilled. Art. 11(1) RPC enumerates these requisites:
Gutierrez, dissenting. Defense of property can only be invoked when coupled with form of
Unlawful aggression. In the case at bar, there was unlawful aggression towards appellant's attack on person defending property. In the case at bar, this was not so. Appellant should
property rights. Fleisher had given Narvaez 6 months and he should have left him in peace then be sentenced to prision mayor. However, since he has served more than that, he should
before time was up, instead of chiseling Narvaez's house and putting up fence. Art. 536 of be released.
the Civil Code also provides that possession may not be acquired through force or
intimidation; while Art. 539 provides that every possessor has the right to be respected in his
possession

Reasonable necessity of means employed to prevent or repel attack. In the case, killing was
disproportionate to the attack.

Lack of sufficient provocation on part of person defending himself. Here, there was no
provocation at all since he was asleep

Since not all requisites present, defendant is credited with the special mitigating
circumstance of incomplete defense, pursuant to Art. 13(6) RPC. These mitigating
circumstances are: voluntary surrender and passion and obfuscation (read p. 405
explanation) Crime is homicide (2 counts) not murder because treachery is not applicable on
account of provocation by the deceased. Also, assault was not deliberately chosen with view
to kill since slayer acted instantaneously. There was also no direct evidence of planning or
preparation to kill. Art. 249 RPC: Penalty for homicide is reclusion temporal. However, due to
mitigating circumstances and incomplete defense, it can be lowered three degrees (Art. 64)
to arrestomayor.

3. WON he should be liable for subsidiary imprisonment since he is unable to pay the civil
indemnity due to the offended party.

No. He is not liable to be subsidiarily imprisoned for nonpayment of civil indemnity. RA 5465
made the provisions of Art. 39 applicable to fines only and not to reparation of damage
caused, indemnification of consequential damages and costs of proceedings. Although it was
enacted only after its conviction, considering that RA 5465 is favorable to the accused who is
not a habitual delinquent, it may be given retroactive effect pursuant to Art. 22 of the RPC.
People of the Philippines vs. Rolando Rivera, G.R. No. 139180, July 31, 2001
Facts:
Rolando Rivera was charged of willfully, unlawfully and feloniously, and maliciously having
carnal knowledge of his 13 year old daughter, Erlanie D. Rivera, against the latters will and
without her consent.
During arraignment on September 30, 1997, the accused, duly assisted by counsel de oficio,
pleaded not guilty to the crime charged and trial was held.
The prosecution presented as its witnesses complainant Erlanie Rivera, her aunt, Marietta
Pagtalunan, and Dr. Demetria Barin, who conducted the physical examination of
complainant.
Thedefense also presented its evidence and accused, his sister, Concepcion Sayo, and
NatividadPinlac, Records Officer of the Escolastica Romero District Hospital were presented
as witnesses.Accused denied that he raped Erlanie Rivera. He alleged that the rape charge
was filed against him because his wifehad a paramour and resented him because he hurt
her.The defense presented a letter to accused written by his wife, asking him to sign a
document so that she could attend to it before he got out of prison. The defense also offered
as evidence a document, designated as Waiver of Rights, signed by accused, in which he
acknowledged that he was a tenant of a parcel of land and that he waived and voluntarily
surrendered his right over the said landholding to a certain Ponciano Miguel, a cousin of his
wife.He said that he signed the document because his wifes relatives promised him that he
would get out of prison after signing the document.Another witness for the defense was
Concepcion Sayo, accuseds sister, who testified that accused stayed in their house during
the entire month of March, except in March 19, 1997. The last defense witness was
NatividadPinlac, Records Officer of the Escolastica Romero District Hospital, who identified a
certification, dated April 29, 1999, in which it was stated that Zaira Rivera was confined at
that hospital from March 1 to March 2, 1997.
On June 22, 1999, the trial court rendered a decision finding the accused guilty beyond
reasonable doubt of the crime of rape as charged.
Issue:
Whether or not the court failed to consider the evidence of the Accused and ruled with
partiality in violation of the accuseds right to be heard.
Ruling:
Accused pointed out that trial judges questions propounded to him during his cross-
examination was an indication of the latters partiality for the prosecution.
Where the trial court is judge both of the law and of the facts, it is oftentimes necessary in
the due and faithful administration of justice for the presiding judge to re-examine a witness
so that his judgment, when rendered, may rest upon a full and clear understanding of the
facts. The trial judge merely wanted to clarify certain points relating to the defense of
accused-appellant and not to establish his guilt. It is a judges prerogative to ask questions to
ferret out the truth. It cannot be taken against him if the questions he propounds reveals
certain truths which, in turn, tend to destroy the theory of one party. Trial judges in this
jurisdiction are judges of both the law and the facts, and they would be negligent in the
performance of their duties if they permitted a miscarriage of justice as a result of a failure to
propound a proper question to a witness which might develop some material bearing upon
the outcome. In the exercise of sound discretion, he may put such question to the witness as
will enable him to formulate a sound opinion as to the ability or the willingness of the
witness to tell the truth. A judge may examine or cross-examine a witness. He may propound
clarificatory questions to test the credibility of the witness and to extract the truth. He may
seek to draw out relevant and material testimony though that testimony may tend to
support or rebut the position taken by one or the other party.
The decision of the Regional Trial Courtfinding accused-appellant guilty of the crime of rape
is affirmed.
Cabanlig v Sandiganbayan
G.R. No. 148431 July 28, 2005
Carpio, J.
Facts:
This petition for review seeks to reverse the Decision of the Sandiganbayan dated 11 May
1999 and Resolution dated May 2001 affirming the conviction of SPO2 Ruperto Cabanlig
("Cabanlig") for homicide. The Sandiganbayan sentenced Cabanlig to suffer the
indeterminate penalty of four months of arresto mayor as minimum to two years and four
months of prision correctional as maximum and to pay P50,000 to the heirs of Jimmy Valino
("Valino"). Cabanlig shot Valino after Valino grabbed the M16 Armalite of another policeman
and tried to escape from the custody of the police. The Sandiganbayan acquitted Cabanlig's
co-accused, SPO1 Carlos Padilla ("Padilla"), PO2 Meinhart Abesamis ("Abesamis"), SPO2 Lucio
Mercado ("Mercado") and SPO1 Rady Esteban ("Esteban").
On Sep 24 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. The
authorities apprehended 3 suspects: Jordan Magat ("Magat"), Randy Reyes ("Reyes") and
Valino. The police recovered most of the stolen items but a flower vase and small radio were
still missing. Reyes told authorities that the items were at his house. Cabalig asked his
colleagues to accompany him to retrieve said items. When Cabalig brought out Magat and
Reyes out of their cell intending to bring them during the retrieval operation, Valino
informed Cabanlig that he moved the locations of the items without knowledge of the other 1. The accused acted in the performance of a duty or in the lawful exercise of a right or
two. Cabanlig then decided to bring along Valino, leaving the two, for the ret. op. office;

Around 6:30 pm, Cabanlig and his collegues, 5 of them, escorted Valino to recover the 2. The injury caused or the offense committed be the necessary consequence of the due
missing flower vase and radio. The policemen and Valino were aboard a police vehicle, an performance of duty or the lawful exercise of such right or office.
Isuzu pick-up jeep. The jeep was built like an ordinary jeepney. The rear end of the jeep had
no enclosure. A metal covering separated the driver's compartment and main body of the A policeman in the performance of duty is justified in using such force as is reasonably
jeep. There was no opening or door between the two compartments of the jeep. Inside the necessary to secure and detain the offender, overcome his resistance, prevent his escape,
main body of the jeep, were two long benches, each of which was located at the left and recapture him if he escapes, and protect himself from bodily harm.
right side of the jeep.
Unlike in self-defense where unlawful aggression is an element, in performance of duty,
Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep. unlawful aggression from the victim is not a requisite.
Esteban was right behind Abesamis at the left bench. Valino, who was not handcuffed, was
Undoubtedly, the policemen in the case at bar were in the legitimate performance of their
between Cabanlig and Mercado at the right bench. Valino was seated at Cabanlig's left and at
duty whenCabanlig shot Valino. Thus fulfillment of duty is a justifying circumstance
Mercado's right. Mercado was seated nearest to the opening of the rear of the jeep.
applicable to the case.
Just after the jeep crossed the Philippine National Railway bridge, Valino suddenly grabbed
However, to determine if this defense is complete, it has to be determined if Cabanlig used
Mercado's M 16 Armalite (he was able to do so when Mercado tried to reach his back to
necessary force to prevent Valino from escaping and in protecting himself and his co-accused
nurse an itch because of some flying insects) and jumped out of the jeep. Mercado shouted
policemen from imminent danger.
hoy and Cabanlig acted immediately. Without issuing any warning, Cabanlig fired one shot
at Valino, and after two to three seconds, Cabanlig fired four more successive shots. Valino
The court rules yes as well. Valino was committing an offense when he grabbed the M16
did not fire any shot. Valino died sustaining three mortal wounds one at the back of the
Armalite. The policemen had the duty then to not only apprehend Valino but also retrieve
head, one at the left side of the chest, and one at the left lower back.
the firearm. Had Cabanlig failed to shoot Valino immediately, the policemen would have
been sitting ducks. They were facing imminent danger as Valino had with him the armalite,
The following morning, Sep 29, 1992, a certain SPO4 Lacanilao investigated the case. He met
so the policemen had to act swiftly.
with Mercado to whom the latter related that he and his fellow policemen salvaged a
person the night before. Mercado then asked Lacanilao why he was interested in the identity
The Court states that Sandiganbayan was wrong in holding that Cabanlig had no right to
of the person who was "salvaged." Lacanilao then answered that "Jimmy Valino" was his
shoot without giving Valino the opportunity to surrender and that they should have issued a
cousin. Mercado immediately turned around and left.
warning first.
Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an act of self-
defense and performance of duty. Mercado denied that he told Lacanilao that he and his co-
accused "salvaged" Valino. Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that The duty to issue a warning is not absolutely mandated at all times and at all cost, to the
they conspired to kill Valino. detriment of the life of law enforcers. In this case, the embattled policemen did not have the
luxury of time. Neither did they have much choice. Cabanlig's shooting of Valino was an
Issue:
immediate and spontaneous reaction to imminent danger. At any rate, Mercados hoy
already served as a warning to Valino.
WON Cabanlig could invoke defense of fulfillment of duty to justify his actions
Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado and
Held:
Esteban are guilty only of gross negligence for transporting an arrested robber without
YES. The requisites of fulfillment of duty are: handcuffs.

Court reverses decision of Sandiganbayan and acquits Cabanlig of the crime of homicide.
Sycip vs Court of Appeals, 328 SCRA 447
Facts: On August 24, 1989, petitioner Francisco T. Sycip, Jr., agreed to buy, on installment,
from Francel Realty Corporation (FRC), a townhouse unit in the latters project at Bacoor,
Cavite. Upon execution of the contract to sell, as required, issued to FRC, forty-eight (48)
postdated checks, each in the amount of P9,304.00,covering 48 monthly installments. After
moving in his unit, Sycip complained, to FRC regarding defects in the unit and incomplete
features of the townhouse project. FRC ignored the complaint. Dissatisfied, Sycip served on
FRC two (2) notorial notices to the effect that he was suspending his installment payments on
the unit pending compliance with the project plans and specifications, as approved by the
Housing and Land Use Regulatory Board (HLURB). Sycip and twelve (12) out of fourteen (14)
unit buyers then filed a complaint with the HLURB. The complaint was dismissed as to the
defect, but FRC was ordered by the HLURB to finish all incomplete features of its townhouse
project. Sycip appealed the dismissal of the complaint as to the alleged defects.
Notwithstanding the notorial notices, FRC continued to present for encashment Sycips
postdated checks in its possession. Sycip sent stop payment orders to the bank. When FRC
continued to present the other postdated checks to the bank as the due date fell, the bank
advised Sycip to close his checking account to avoid paying bank charges every time he made
a stop payment order on the forthcoming check. Due to the closure of petitioners checking
account, the drawee bank dishonored six postdated checks. FRC file a complaint against
petitioner for violations of B.P. Blg. 22 involving said dishonored checks.
prosecution is duty bound to prove every element of the offense charged, and not merely
rely on a rebuttable presumption.
What are involved in this case are postdated checks. Postdating simply means that on the
date indicated on its face, the check would be properly funded, not that the checks should be
deemed as issued only then. The checks were issued at the time of the signing of the
Contract to Sell in August 1989. However, there was no showing that at the time said checks
were issued, petitioner had knowledge that his deposit or credit in the bank would be
insufficient to cover them when presented for encashment. The closure of petitioners
Account No. 845515 with Citibank was not for insufficiency of funds. It was made upon the
advice of the drawee bank, to avoid payment of hefty bank charges each time petitioner
issued a stop payment order to prevent encashment of postdated checks in private
respondents possession. Said evidence contradicts the prima facie presumption of
knowledge of insufficiency of funds. But it establishes petitioners state of mind at the time
said checks were issued. Petitioner definitely had no knowledge that his funds or credit
would be insufficient when the checks would be presented for encashment.

Issue: Whether or not the accused is criminally liable of the B.P. Blg. 22?

Held: No. The Bouncing Checks Law (B.P. No. 22), is violated when the following elements are
present: (1) the making, drawing and issuance of any check to apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment of such check in full upon
its presentment; and (3) the subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason had not the drawer, without
any valid cause, ordered the bank to stop payment. In this case, although the first element of
the offense exists, the other elements have not been established beyond reasonable doubt.
The second element involves knowledge on the part of the issuer at the time of the checks
issuance that he did not have enough funds or credit in the bank for payment thereof upon
its presentment. B.P. No. 22 creates a presumption juris tantum that the second element
prima facie exists when the first and third elements of the offense are present. But such
evidence may be rebutted. If not rebutted or contradicted, it will suffice to sustain a
judgment in favor of the issue, which it supports. Such knowledge of the insufficiency of
petitioners funds is legally presumed from the dishonor of his checks for insufficiency of
funds. But such presumption cannot hold if there is evidence to the contrary. In this case,
the other party has presented evidence to contradict said presumption. Hence, the
Luis A. Tabuena, et al. vs. Sandiganbayan (268 SCRA 332, February 17, 1997) wholecase open to review, and it becomes the duty of the appellate court to correct such
errorsas may be found in the judgment appealed from whether they are made the subject of
FACTS: assignments of error or not.The "cold neutrality of an impartial judge " requirement of due
process was certainly deniedTabuena and Peralta when the court, with its overzealousness,
Then Pres. Ferdinand Marcos instructed Luis Tabuena, General Manager of the
assumed the dual role of magistrate and advocate. Time and again the Court has declared
ManilaInternational Airport Authority (MIAA), over the phone to pay directly to the
that due process requiresno less than the cold neutrality of an impartial judge. That the judge
presidentsoffice and in cash what the MIAA owes the Phil. National Construction Corp. The
must not only beimpartial but must also appear to be impartial, to give added assurance to
verbalinstruction was reiterated in a Presidential memorandum.In obedience to Pres.
the parties thathis decision will be just. The parties are entitled to no less than this, as a
Marcos instruction, Tabuena, with the help of Gerardo Dabao andAdolfo Peralta, the Asst.
minimumguaranty of due process.HENCE, Luis Tabuena and Adolfo Peralta are acquitted of
Gen. Mgr. and the Acting Finance Services Mgr. of MIAA,respectively, caused the release of
the crime of malversation
P55M of MIAA funds of three (3) withdrawals anddelivered the money to Mrs. Fe Roa-
Gimenez, private secretary of Marcos. Gimenez issueda receipt for all the amounts she
received from Tabuena. Later, it turned out that PNCCnever received the money.The case
involves two (2) separate petitions for review by Luis Tabuena and Adolfo Peralta.They
appeal the Sandiganbayan decision convicting them of malversation of MIAA funds inthe
amount of P55M.Further, petitioners claimed that they were charged with intentional
malversation, asalleged in the amended information, but it would appear that they were
convicted formalversation with negligence. Hence, their conviction of a crime different from
that chargedviolated their constitutional right to be informed of the accusation.

ISSUE:

(1)Whether or not the Sandiganbayan convicted them of a crime not charged in theamended
information; and

(2)Whether or not Tabuena and Peralta acted in good faith.

HELD:

(1)No. Malversation is committed either intentionally or by negligence. The dolo or the culpa
present in the offense is only a modality in the perpetration of the felony. Even if the mode
charged differs from the mode proved, the same offense of malversation isinvolved.(2)Yes.
Tabuena acted in strict compliance with the MARCOS Memorandum. The orderemanated
from the Office of the President and bears the signature of the President himself, the highest
official of the land. It carries with it the presumption that it was regularly issued. And on its
face, the memorandum is patently lawful for no law makesthe payment of an obligation
illegal. This fact, coupled with the urgent tenor for itsexecution constrains one to act swiftly
without question.However, a more compelling reason for the ACQUITTAL is the violation of
the accused'sbasic constitutional right to due process. Records show that the Sandiganbayan
activelytook part in the questioning of a defense witness and of the accused themselves.
Thequestions of the court were in the nature of cross examinations characteristic of
confrontation, probing and insinuation. Tabuena and Peralta may not have raised the issueas
an error, there is nevertheless no impediment for the court to consider such matter
asadditional basis for a reversal since the settled doctrine is that an appeal throws the
People vs. Alconga Note Provocation in order to be an MC must be sufficient and immediately preceding the
act. It should be proportionate to the act committed and adequate to stir one to its
Facts: On May 27, deceased Silverio Barion, the banker of the card game, was playing black commission
jack against Maria De Raposo. De Raposo and Alconga were partners in the game, they had
one money. Alconga was seated behind Barion and he gave signs to De Raposo. Barion, who
was suffering losses in the game, found this out and he expressed his anger at Alconga. The
two almost fought outright this was stopped.

The two met again on May 29. when Alconga was doing his job as a home guard. While the
said accused was seated on a bench in the guardhouse, Barion came along and said Coroy,
this is your breakfast followed by a swing of his pingahan, a bamboo stick. Alconga
avoided the blow by falling to the ground under the bench with the intention to crawl out of
the guardhouse. A second blow was given by Barion but failed to hit the accused, hitting the
bench instead. Alconga managed to go out of the guardhouse by crawling on his abdomen.
While Barion was about to deliver the 3rd blow, Alconga fired at him with his revolver,
causing him to stagger and hit the ground. The deceased stood up, drew forth his dagger and
directed a blow to the accused who was able to parry the attack using his bolo. A hand to
handfight ensued. The deceased, looking already beaten and having sustained several
wounds ran away. He was followed by the accused and was overtaken after 200 meters.

A second fight took place and the deceased received a mortal bolo blow, the one which
slasehde the cranium. The deceased fell face downward besides many other blows delivered.
Alconga surrendered.

Issue: Whether or not self-defense can be used as a defense by Alconga

Held: No. Self-defense cannot be sustained. Alconga guilty of Homicide

The deceased ran and fled w/o having to inflicted so much a scratch to Alconga, but after,
upon the other hand, having been wounded with one revolver shot and several bolo slashes
the right of Alconga to inflict injury upon him has ceased absolutely/ Alconga had no right to
pursue, no right to kill or injure. He could have only attacked if there was reason to believe
that he is still not safe. In the case at bar, it is apparent that it is Alconga who is the superior
fighter and his safety was already secured after the first fight ended. There was no more
reason for him to further chase Barion. The second fight will be treated differently and
independently. Under the first fight, self-defense would have been valid, but that is not the
case in the second fight. In the second fight, there was illegal aggression on the part of
Alconga and as a result, he is found guilty of Homicide with no mitigating circumstance (MC)
of Provocation