justifying circumstances

 Art.  11:  Justifying Circumstances – those wherein the acts of the actor are in accordance with law, hence, he is justified.  There is no criminal and civil liability because there is no crime.

• Self-defense

1. Reason for lawfulness of self-defense: because it would be impossible for the State to protect all its citizens.  Also a person cannot just give up his rights without any resistance being offered.

2. Rights included in self-defense:

1.  Defense of person

2.  Defense of rights protected by law

1. Defense of property:

a.  The owner or lawful possessor of a thing has a right to exclude any person from the enjoyment or disposal thereof.  For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. (Art. 429, New Civil Code)

b.    defense of chastity

3. Elements:

1. 1.      Unlawful Aggression– is a physical act manifesting danger to life or limb; it is either actual or imminent.
   1. Actual/real aggression – Real aggression presupposes an act positively strong, showing the wrongful intent of the aggressor, which is not merely threatening or intimidating attitude, but a material attack.  There must be real danger to life a personal safety.
   2. Imminent unlawful aggression – it is an attack that is impending or on the point of happening.  It must not consist in a mere threatening attitude, nor must it be merely imaginary.  The intimidating attitude must be offensive and positively strong.
   3. Where there is an agreement to fight, there is no unlawful aggression.  Each of the protagonists is at once assailant and assaulted, and neither can invoke the right of self-defense, because aggression which is an incident in the fight is bound to arise from one or the other of the combatants. Exception:  Where the attack is made in violation of the conditions agreed upon, there may be unlawful aggression.
   4. Unlawful aggression in self-defense, to be justifying, must exist at the time the defense is made.  It may no longer exist if the aggressor runs away after the attack or he has manifested a refusal to continue fighting.  If the person attacked allowed some time to elapse after he suffered the injury before hitting back, his act of hitting back would not constitute self-defense, but revenge.

• A light push on the head with the hand is not unlawful aggression, but a slap on the face is, because his dignity is in danger.
• A police officer exceeding his authority may become an unlawful aggressor.
• The nature, character, location, and extent of the wound may belie claim of self-defense.

               2. Reasonable necessity of the means employed to prevent or repel it;

a.    Requisites:

• Means were used to prevent or repel
• Means must be necessary and there is no other way to prevent or repel it
• Means must be reasonable – depending on the circumstances, but generally proportionate to the force of the aggressor.

1. The rule here is to stand your ground when in the right which may invoked when the defender is unlawfully assaulted and the aggressor is armed with a weapon.
2. The rule is more liberal when the accused is a peace officer who, unlike a private person, cannot run away.
3. The reasonable necessity of the means employed to put up the defense.

• The gauge of reasonable necessity is the instinct of self-preservation, i.e. a person did not use his rational mind to pick a means of defense but acted out of self-preservation, using the nearest or only means available to defend himself, even if such means be disproportionately advantageous as compared with the means of violence employed by the aggressor.
• Reasonableness of the means depends on the nature and the quality of the weapon used, physical condition, character, size and other circumstances.

3. Lack of sufficient provocation on the part of the person defending himself.

1. When no provocation at all was given to the aggressor by the person defending himself.
2. When even if provocation was given by the person defending himself, such was not sufficient to cause violent aggression on the part of the attacker, i.e. the amount of provocation was not sufficient to stir the aggressor into the acts which led the accused to defend himself.
3. When even if the provocation were sufficient, it was not given by the person defending himself.
4. When even if provocation was given by the person defending himself, the attack was not proximate or immediate to the act of provocation.
5. Sufficient means proportionate to the damage caused by the act, and adequate to stir one to its commission.

1. Kinds of Self-Defense
   1. Self-defense of chastity – to be entitled to complete self-defense of chastity, there must be an attempt to rape, mere imminence thereof will suffice.
   2. Defense of property – an attack on the property must be coupled with an attack on the person of the owner, or of one entrusted with the care of such property.
   3. Self-defense in libel – physical assault may be justified when the libel is aimed at a person’s good name, and while the libel is in progress, one libel deserves another.

*Burden of proof – on the accused (sufficient, clear and convincing evidence; must rely on the strength of his own evidence and not on the weakness of the prosecution).

• Defense of Relative

A. Elements:

1. unlawful aggression
2. reasonable necessity of the means employed to prevent or repel the attack;
3. in case provocation was given by the person attacked, that the person making the defense had no part in such provocation.

B. Relatives entitled to the defense:

1. spouse
2. ascendants
3. descendants
4. legitimate, natural or adopted brothers or sisters
5. relatives by affinity in the same degree
6. relatives by consanguinity within the 4th civil degree.

• The third element need not take place.  The relative defended may even be the original aggressor.  All that is required to justify the act of the relative defending is that he takes no part in such provocation.
• General opinion is to the effect that all relatives mentioned must be legitimate, except in cases of brothers and sisters who, by relatives by nature, may be illegitimate.
• The unlawful aggression may depend on the honest belief of the person making the defense.

• Defense of Stranger

A. Elements

1. unlawful aggression
2. reasonable necessity of the means employed to prevent or repel the attack;
3. the person defending  be not induced by revenge, resentment or other evil motive.

2. A relative not included in defense of relative is included in defense of stranger.
3. Be not induced by evil motive means that even an enemy of the aggressor who comes to the defense of a stranger may invoke this justifying circumstances so long as he is not induced by a motive that is evil.

• State of Necessity

1. Art. 11, Par. a provides:

Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present:

First.  That the evil sought to be avoided actually exists;

            Second. That the injury feared be greater than that done to avoid it; and

            Third. That there be no other practical and less harmful means of preventing it.

1. A state of necessity exists when there is a clash between unequal rights, the lesser right giving way to the greater right.  Aside from the 3 requisites stated in the law, it should also be added that the necessity must not be due to the negligence or violation of any law by the actor.
2. The person for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which may have been received.  This is the only justifying circumstance which provides for the payment of civil indemnity.  Under the other justifying circumstances, no civil liability attaches.  The courts shall determine, in their sound discretion, the proportionate amount for which law one is liable

• Fulfillment of Duty or Lawful Exercise of a Right or Office

1. Elements:

1. that the accused acted in the performance of a duty, or in the lawful exercise  of a right or office;
2. that the injury caused or offense committed be the necessary consequence of the due performance of the duty, or the lawful exercise of such right or office.

2. A police officer is justified in shooting and killing a criminal who refuses to stop when ordered to do so, and after such officer fired warning shots in the air.

• shooting an offender who refused to surrender is justified, but not a thief who refused  to be arrested.

3. The accused must prove that he was duly appointed to the position he claimed he was discharging at the time of the commission of the offense.  It must be made to appear not only that the injury caused or the offense committed was done in the fulfillment of a duty, or in the lawful exercise of a right or office, but that the offense committed was a necessary consequence of such fulfillment of duty, or lawful exercise of a right or office.
4. A mere security guard has no authority or duty to fire at a thief, resulting in the latter’s death.

• Obedience to a Superior Order

1. Elements:

1. there is an order;
2. the order is for a legal purpose;
3. the means used to carry out said order is lawful.

2. The subordinate who is made to comply with the order is the party which may avail of this circumstance.  The officer giving the order may not invoke this.
3. The subordinate’s good faith is material here.  If he obeyed an order in good faith, not being aware of its illegality, he is not liable.  However, the order must not be patently illegal.  If the order is patently illegal this circumstance cannot be validly invoked.
4. The reason for this justifying circumstance is the subordinate’s mistake of fact in good faith.
5. Even if the order be patently illegal, the subordinate may yet be able to invoke the exempting circumstances of having acted under the compulsion of an irresistible force, or under the impulse of an uncontrollable fear.