In this article, we shall talk about avoidance of greater evil as a justifying circumstance for which no criminal liability will attach. Paragraph 4, Article 11 of the Revised Penal Code provides that a person who incurred damage to another to avoid an evil or injury has no criminal liability, provided that the requisites under it are all satisfied.

There is no civil liability in justifying circumstance, except in Article 11 paragraph 4 or the avoidance of greater evil wherein the civil liability is borne by the person benefited by the act.

Paragraph 4 of the Justifying Circumstance explicitly states that a person who causes injuries to another in order to avoid an evil incurs no criminal liability if it satisfies the requirements under it.

Avoidance of greater evil or injury

Article 11, Paragraph 4: 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:¹

• First. That the evil sought to be avoided actually exists;²
• Second. That the injury feared be greater than that done to avoid it;³
• Third. That there be no other practical and less harmful means of preventing it.⁴

What is avoidance of greater evil or state of necessity?

A legal defense to a crime that might otherwise be prosecuted for  reckless recklessness resulting in homicide, is the choice of evils, or avoidance of worst evil. The defense claims that the defendant committed the offense to stop a greater injury.

For instance, a cautious driver suddenly swerved to a nipa hut nearby a road, instantly killing one person, to avoid an accident where several people would be hit. Because the accused must demonstrate that they were acting out of necessity, the defense is sometimes known as the “State of Necessity” defense.

Article 11, paragraph 4 of the Revised Penal Code recognizes that no crime has been committed through actions that have been made for the avoidance of greater evil. Article 11, Paragraph 4 of the Revised penal Code has three (3) requisites, namely:

First, there must be an actual existence of the evil sought to be avoided. The mere assumption would not suffice, since it is the actual presence of evil that could only satisfy the first requisite.

Second, the evil sought to be avoided has greater or more destructive consequences than that done to avoid it.

Third, there be no other ways or a less intrusive means to avoid it but the means employed by the person.

On the other hand, paragraph 4 is an exception to the general rule that those acts that fall under the justifying circumstance incur both no criminal and civil liabilities. The civil liability is to be borne by those who benefited by the avoidance of that evil.

What has been decided

In People vs. Punzalan,⁵ the following antecedents happened:

The navy personnel moved on to a nearby videoke bar called “Aquarius,” where they continued to drink. A heated argument ensued between SN1 Bacosa and Punzalan [Appellant] when the latter misinterpreted SN1 Bacosa’s statement “Patayin ang ilaw” as directed at him.

SN1 Bundang apologized on behalf of SN1 Bacosa to Punzalan. Yet, he remained enraged, mumbling incomprehensible words and pounding his fist on the table. To avoid further trouble, the navy personnel then left the area.

Punzalan followed the navy personnel. SN1 De Guzman and F1EN Dimaala stopped a speeding, zigzagging maroon Nissan van with the license plate DRW 706 as the navy soldiers went through the sentry gate. The sentries approached the van and identified the driver as Punzalan, who was oozing alcohol.

“Kasi chief, gago ang mga ‘yan!” Punzalan yelled loudly, pointing in the general direction of the navy personnel’s group. One of the walking navy personnel noticed how the vehicle was speeding toward the camp when it abruptly turned to the right and struck the group, hitting and injuring the navy officers.

The Supreme Court held that:

The appellant failed to satisfy the third requisite that there be no other practical and less harmful means of preventing it. Under paragraph 4, Article 11 of the Revised Penal Code, infliction of damage or injury to another so that a greater evil or injury may not befall one’s self may be justified only if it is taken as a last resort and with the least possible prejudice to another.⁶

If there is another way to avoid the injury without causing damage or injury to another or, if there is no such other way but the damage to another may be minimized while avoiding an evil or injury to one’s self, then such course should be taken.⁷

Appellant did not make any attempt to avoid the navy personnel despite the fact of having enough space to do so, considering the width of the road. He failed to satisfy the third requirement as there were other practical means of avoiding the evil sought to be avoided. He was unmindful of the consequences of his action even if they will cause damage to the navy personnel.⁸

This was apparent from his action as he sped away straight ahead toward the direction of the navy personnel. Hence. for appellant’s failure to satisfy all three elements under paragraph 4, he could not invoke avoidance of greater evil.⁹

In Ty vs. People,¹⁰ the following scenario transpired:

Ty’s mother was being treated at the Doctors’ Hospital in Manila. Ty signed the “Acknowledgement of Responsibility for Payment” section of the Admission Contract. Ty signed a promissory note assuming installment payment of the obligation, and to ensure settlement of hospital bills, she drew several postdated checks against Metrobank payable to the hospital.

All of these were dishonored by the drawee bank and returned unpaid to the hospital because of lack of funds. As a result, the hospital filed a complaint against Ty. Ty invoked the justifying circumstance of state of necessity under Article 11 of the Revised Penal Code, paragraph 4.

The High Court ruled in the negative. It states that:

The law prescribes the presence of three requisites to exempt the actor from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be greater than the one done to avoid it; (3) that there be no other practical and less harmful means of preventing it.¹¹

In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable.¹²

Ty could have taken advantage of an available option to avoid committing a crime. From Ty’s own testimonial admission, she had other forms of security, such as pieces of jewelry, instead of postdated checks to secure her obligation.¹³

Furthermore, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by Ty’s own failure to pay her mother’s hospital bills.¹⁴

In Marzalado vs. People,¹⁵ it presented the following factual back drop:

Cristina N. Albano leased a unit in a house owned by Luz Marzalado, the mother of the petitioner, Salvador Marzalado, Jr. Albano was served with an eviction notice in an ejectment case filed before a competent court. She was ordered to vacate the leased premises by a court of law.

Albano relocated her children four houses away due to a power outage in the leased unit. When she returned, she discovered that the padlock on the main door had been changed. Albano tried to see the accused again.

The unit’s roofing of Albano had been removed, and the main door had been locked from the inside. She learned that Marzalado, Jr. and his female companion had stolen her lead pipe. Albano filed a trespass to dwelling suit against Marzalado, Jr.

Marzalado claimed that his entry was justified under Article 11 of the Revised Penal Code, paragraph 4, to prevent an imminent danger to property. According to Marzalado, he was driving home when he noticed water flowing out of Albano’s unit in a continuous stream.

He looked for Albano but could not find her. He then sought the assistance of the barangay officers, who went inside the unit and discovered an open faucet with water flooding the floor.

The Supreme Court ruled in favor of Marzalado.

As Albano herself admitted, she and her children already left the unit when the electricity supply was cut off in the month of September. Hence, nobody was left to attend to the unit. Clearly, Marzalado, Jr., acted for the justified purpose of avoiding further flooding and damage to his mother’s property caused by the open faucet. No criminal intent could be clearly imputed to petitioner for the remedial action he had taken.¹⁶

There was an exigency that had to be addressed to avoid damage to the leased unit. There is nothing culpable concerning Marzalado, Jr.’s judgment call to enter the unit and turn off the faucet instead of closing the inlet valve as suggested by the OSG. Thus, we find the evidence on record insufficient to hold petitioner guilty of the offense charged.¹⁷

Final Thoughts

Article 11 of the Revised Penal Code, paragraph 4, exempts a person from criminal liability for acts committed out of necessity. To invoke this defense, the three (3) requirements specified in this code must be met.

In the absence of one, a person would be unable to invoke the aforementioned justifying circumstance. Furthermore, the injury sought to be avoided must not have been caused by the person invoking it’s negligence or imprudence. His presence would make him criminally liable.

Finally, while it has been established that those who benefited from the act are not criminally liable, this does not mean that they are not civilly liable. When it is proven that the act benefited someone, that person is held civilly liable.

The defense of state of necessity absolves an individual of guilt because he is deemed not to have committed a crime. Proof that he benefited from the act done to avoid greater evil, on the other hand, makes him civilly liable. To invoke the justifying circumstance of state of necessity, all requirements must be met.

1. Article 11, Paragraph 4, Revised Penal Code[↩]
2. Id.[↩]
3. Id.[↩]
4. Id.[↩]
5. G.R. No. 199892, December 10, 2012[↩]
6. Ibid., G.R. No. 199892, December 10, 2012[↩]
7. Ibid.[↩]
8. Ibid.[↩]
9. Ibid.[↩]
10. G.R. No. 149275, September 27, 2004[↩]
11. Ibid., G.R. No. 149275, September 27, 2004[↩]
12. Ibid.[↩]
13. Ibid.[↩]
14. Ibid.[↩]
15. G.R. No. 152997, November 10, 2004[↩]
16. Ibid., G.R. No. 152997, November 10, 2004[↩]
17. Ibid.[↩]