Tanod who shot actor dead wants charge downgraded

CEBU, Philippines – The barangay tanod who shot dead a local actor last October 30 has asked the court to downgrade the criminal case filed against him.

In a motion, Wendell Quiban, lawyer of Edgardo Cuizon, said the proper charge against his client should have been either homicide or reckless imprudence resulting to homicide and not murder.

Quiban said the qualifying circumstances of treachery require the concurrence of two elements: the means of execution employed gives the person attacked no opportunity for self-defense or retaliation and that the means of execution is deliberately or consciously adopted.

Quiban said that the second element is not present in Cuizon's case. He said the resolution of the prosecutor's office, which recommended the murder charge against his client, did not indicate that Cuizon killed Kirk Abella intentionally. No evidence reportedly showed that Cuizon had the intention to kill Abella when the tanod approached the victim.

Quiban argued that based on findings approved by Cebu City Prosecutor Nicholas Sellon and the affidavits of witnesses, his client was even "almost dragged" during the incident, which caused him to sustain injuries on the knees.

He said such findings contradict the second element of murder because human experience would dictate that a person cannot think or deliberate well while in the position of being "almost dragged."

Cuizon reportedly got dragged when he held on to Abella's shirt just as the latter's motorcycle passed by him. Abella and another actor were on board the motorcycle while acting out a scene of a movie being shot in Barangay Parian.

Quiban said that if his client really intended to shoot Abella, he should not have held the victim's shirt first. Treachery, Quiban said, must be based on positive or conclusive proofs and not on speculations.

"Based on the resolution filed at the fiscal, there was a spontaneous retaliation that serves as the basis of our motion. Also there was no treachery occurred," Quiban said.

Prosecution lawyer Democrito Barcenas, however, insists that there was treachery involved. The prosecution will file a formal opposition to the motion within 10 days.

Abella, 32, was one of the actors in a movie entitled "Going Somewhere." The movie is a project of London-based filmmaker Alan Lyddiard.

Abella who was portraying a gunman was wearing a bonnet to cover his face and was bringing a toy gun at that time.

Cuizon, for his part, said he did not know that there was a film being shot. He said he thought that Abella was something who was going to kill another person for real.

Abella was rushed in to the Perpetual Succour Hospital, but was declared dead on arrival. He sustained a gunshot wound on his back. (FREEMAN)