Crime Aggravated by Abuse of Public Position

If the accused could have perpetrated the crime even without occupying his position, there is no abuse of public position. (G.R. Nos. 140407-08; January 15, 2002)

The Supreme Court agrees with the Solicitor General that the trial court improperly applied the aggravating circumstance of taking advantage of public position as provided for in Article 14, paragraph 1 of the Revised Penal Code. To appreciate this aggravating circumstance, the public officer must use the influence, prestige or ascendancy which his office gives him as a means by which he realizes his purpose. The essence of the matter is presented in the inquiry Did the accused abuse his office to commit the crime?

In this case, there was no showing that accused-appellant took advantage of his being a policeman to shoot Jelord Velez or that he used his influence, prestige or ascendancy in killing the victim. Accused-appellant could have shot Velez even without being a policeman. In other words, if the accused could have perpetrated the crime even without occupying his position, there is no abuse of public position. Only recently, the Court emphatically said that the mere fact that accused-appellant is a policeman and used his government issued .38 caliber revolver to kill is not sufficient to establish that he misused his public position in the commission of the crime.