POMOY v. PEOPLE v.01

POMOY v. PEOPLE G.R. 150647, 29 September 2004 FACTS A petition for Review by Appellant Pomoy, against the ruling of RTC Iloilo and the CA, that found him guilty of homicide. The TC and CA found that the death of Tomas Balboa, “who was shot with a .45 service pistol, with deliberate intent and decided purpose to kill, and without any justifiable cause or motive, did then and there willfully, unlawfully and feloniously assault” the deceased Balboa. Hence this petition. Prosecution: Balboa was a teacher in Concepcion College of Science and Fisheries in Concepcion, Iloilo. About 7:30 am of 4 January 1990, some policemen arrived to arrest Balboa, allegedly due to a robbery back in December 1989. Balboa complied and was detained in Camp Jalandoni, Iloilo with Edgar Samudio, another suspect of the robbery case. About 2 pm, petitioner Pomoy, the police sergeant, came for Balboa for tactical interrogation at the investigation room. At that time, Pomoy had a service gun (a . 45 caliber pistol). When Pomoy and Balboa were in the building near the investigation room, and two (2) gunshots were heard. When they came to the source of the gunshot sounds, Pomoy was seen still holding the .45 caliber pistol, facing Balboa, who was lying in a pool of blood, about two (2) feet away. When the Commanding Officer arrived, he disarmed Pomoy, and had Balboa brought to the hospital but was stopped by a doctor in the premises, saying it was unnecessary as Balboa is already dead. Upon the request of Mrs. Balboa, an autopsy was conducted in NBI Iloilo with findings by the medicolegal officer, as follows: Cause of Death: Hemorrhage, massive secondary gunshot wounds on chest and abdomen. Defense: Petitioner Pomoy generally adopts the narration of facts in the trail court and CA decisions, Defense had the following witnesses: Erna Basa (the lone eyewitness to the incident) who says, while she was working about 2pm, heard some noise and exchange of words that were unclear but seemed like trouble. She opens the door, and seeing one meter away, finds Pomoy and Balboa grappling for possession of the gun from Pomoy’s holster. It all happened so fast that the gun was pulled out of the holster, a shot was fired, but she wasn’t sure who pulled the trigger.

Eden Legaspi, she also hears the commotion from the outside, but remained seated where she was. She witnesses Erna Basa go and open the door. Eden Legaspi only stood up after shots were fired and hears on of the two men fall down. Dr. Salvador Mallo Jr., the medico legal officer who conducted the autopsy. He finds two (2) entrance wounds on Balboa, one’s trajectory going upward, and the other downward. Pomoy the petitioner, he notes that once he opened the door to meet Balboa, the latter suddenly approached him to take hold of the gun in the holster. Pomoy also notes he loaded and cocked his gun before going to Camp Jalandoni that day. Though Balboa is shorter, Pomoy notes Balboa was bigger in build. Pomoy however, prevented Balboa from taking his gun. After a few seconds of grappling, the gun was forced out of the holster, it fired to the right side of the victim. RTC and CA: Pomoy was held guilty based on the following: 1) Petitioner had substantial control of the gun, 2) the gun was locked prior to the grabbing incident, hence unlocked by the petitioner, 3) location of the wounds do not support the assertion of the grabbing of the gun, 4) as the OSG said, an “accident” was unlikely since there were two gunshot wounds, on two different angles and distant parts of the body, instead of merely one. The OSG said that it is an oft repeated principle that the location, number and gravity of the wounds inflicted on the victim have a more revealing tale of what actually happened during the incident. The appellate court cited People v. Reyes saying that revolvers are not prone to accidental firing since it need to be cocked and pressure is needed to be exerted on the trigger. Furthermore, the CA debunked the alternative plea of self defense. It held that petitioner had miserably failed to prove the attendance of unlawful aggression, an indispensable element of this justifying circumstance. Also, the CA altered the trial court’s ruling in appreciating the aggravating circumstance of abuse of public position. The CA said that for the aggravating circumstance to apply, he must use his influence, prestige and ascendancy which his office gives him in realizing his purpose. If the accused could have perpetrated the crime without occupying his position, then there is no abuse of public position.’ (People vs. Joyno, 304 SCRA 655, 670). The CA ruled that in this case there was no showing of a premeditated plan, nor did the petitioner take advantage of his public position. Hence there were neither aggravating nor mitigating circumstances proven. ISSUE: a) Did Pomoy had “full control” of the gun, as the CA ruled? b) Did the safety lock feature, requirement of pressure and two gunshots necessarily conclude a determined effort to kill instead of an accident, as the CA held? c) Did the number and location of the gunshot wounds necessarily conclude deliberate intent?

b) W/N there was a exempting circumstance of accident, as in Art 12, par. 4. c) W/N there was Self Defense. HELD: The CA failed to see the prosecution’s failure to overturn the allegations of the accident, as an exempting circumstance in Article 12, which exculpates the actor when the harm was done without his fault or negligence but rather on circumstances unforeseen or out of his control. Thus, in determining whether an “accident” attended the incident, courts must take into account the dual standards of (1) lack of intent to kill and (2) absence of fault or negligence. a. POMOY HAD NO FULL CONTROL. According to the facts, the Petitioner was NOT in control of the gun when it fired, mainly through the testimonial evidence of Erna Basa. According to the cross, when she began to see the incident, the gun was still in the holster, at the side of the petitioner. She also mentioned both the petitioner and the deceased had their hands on the gun, while it was INSIDE the holster, at that point they were both already grappling for possession. She mentions that both gunshots happened during the grappling, but because of the wrestling of the two, she could not see where the gun was pointed towards. This was because as Pomoy’s right hand and Balboa’s left hand were scuffling for possession, Pomoy continued to use his left hand to subdue Balboa. The foregoing account clearly demonstrates that the petitioner did NOT have control of the gun to consider any willful intent to kill the deceased. According to the witness, the deceased persistently tried to wrest the weapon from the petitioner, while he resolutely tried to thwart those attempts. The CA therefore, had no firm basis to conclude that Pomoy had full possession of the gun. b. NO CLEAR SHOWING OF DETERMINED EFFORT. Since it is now undisputed that both petitioner and victim struggled aggressively for possession of the gun, the eyewitness account of Basa clearly illustrated the fact that in the “fierce and vicious” frenzied grappling, it supports the conclusion that the safety lock was accidentally released, and the force of either man was strong enough to fire the gun, putting the necessary pressure. Not to mention that it was admitted that Pomoy cocked the gun earlier that day. Also, the fact that two gunshots were fired were attributed to the nature of the gun and not a conclusion of deliberate intent. As the petitioner himself testified, he said that “a caliber .45 semiautomatic pistol, when fired, immediately slides backward throwing away the empty shell and returns immediately carrying again a live bullet in its chamber. Thus, the gun can, as it did, fire in succession. Verily, the location of, and distance between the wounds and the trajectories of the

bullets jibe perfectly with the claim of the petitioner: the trajectory of the first shot going downward from left to right thus pushing Balboa’s upper body, tilting it to the left while Balboa was still clutching petitioner’s hand over the gun; the second shot hitting him in the stomach with the bullet going upward of Balboa’s body as he was falling down and releasing his hold on petitioner’s hand”. Thus the reliance of the CA in People v. Reyes was misplaced. This case involves a semi automatic pistol, the mechanism of which is very different from that of a revolver, the gun used in Reyes. Unlike a revolver, a semi automatic pistol, as sufficiently described by petitioner, is prone to accidental firing when possession thereof becomes the object of a struggle. c. THE LOCATION OF THE WOUNDS ARE IRRELEVANT, though ordinarily it would be. In this case though, they are inconsequential where both the victim and the accused were grappling for possession of a gun, the direction of its nozzle may continuously change in the process, such that the trajectory of the bullet when the weapon fires becomes unpredictable and erratic. In this case, the eyewitness account of that aspect of the tragic scuffle shows that the parties’ positions were unsteady, and that the nozzle of the gun was neither definitely aimed nor pointed at any particular target. 1. The ELEMENTS of ACCIDENT WERE ALL PRESENT in this case. The elements of accident are as follows: 1) the accused was at the time performing a lawful act with due care; 2) the resulting injury was caused by mere accident; and 3) on the part of the accused, there was no fault or no intent to cause the injury. From the facts, it is clear that all these elements were present. At the time of the incident, petitioner was an investigator for the PNP. Thus, he was in the lawful performance of his duties that, under the instructions of his superior, he fetched the victim from the latter’s cell for a routine interrogation. Also, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his possession of the weapon when the victim suddenly tried to remove it from his holster. As an enforcer of the law, petitioner was duty bound to prevent the snatching of his service weapon by anyone, especially by a detained person in his custody. Such weapon was likely to be used to facilitate escape and to kill or maim persons in the vicinity, including petitioner himself. Petitioner cannot be faulted for negligence. He exercised all the necessary precautions to prevent his service weapon from causing accidental harm to others. As he so assiduously maintained, he had kept his service gun locked when he left his house; he kept it inside its holster at all times, especially within the premises of his working area. At no instance during his testimony did the accused admit to any intent to cause injury to the deceased, much less kill him. The participation of petitioner, if any, in the victim’s death was limited only to acts committed in the course of the lawful performance of his duties as an enforcer of the law. The removal of the gun from its

holster, the release of the safety lock, and the firing of the two successive shots all of which led to the death of the victim were sufficiently demonstrated to have been consequences of circumstances beyond the control of petitioner. At the very least, these factual circumstances create serious doubt on the latter’s culpability. 3. There was NO SELF DEFENSE. Pomoy put forth self defense as an alternative defense, that granting arguendo that he intentionally shot Balboa, he claims he did so to protect his life and limb from real and immediate danger. The SC said that Self defense is inconsistent with the exempting circumstance of accident, in which there is no intent to kill. On the other hand, self defense necessarily contemplates a premeditated intent to kill in order to defend oneself from imminent danger. Apparently, the fatal shots in the instant case did not occur out of any conscious or premeditated effort to overpower, maim or kill the victim for the purpose of self defense against any aggression; rather, they appeared to be the spontaneous and accidental result of both parties’ attempts to possess the firearm. Since the death of the victim was the result of an accidental firing of the service gun of petitioner an exempting circumstance as defined in Article 12 of the Revised Penal Code a further discussion of whether the assailed acts of the latter constituted lawful self defense is unnecessary. HELD: Though timeless is the legal adage that facts found by the trial court and appellate court are conclusive, the Supreme Court however may overturn the same when certain crucial facts or details are overlooked and when upon a petition, a reexamination is imperative. Due to the appreciation of facts of the accident, credibility of the witnesses creating a reasonable doubt, and upholding the presumption of innocence, the appellant was therefore ACQUITTED.