People Vs Quijada

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EN BANC CRIMINAL CASE NO.

8178

That on or about the 30th day of December, 1992, in the municipality of


Dauis, province of Bohol, Philippines, and within the jurisdiction of this
[G.R. Nos. 115008-09. July 24, 1996] Honorable Court, the abovenamed accused, with intent to kill and without
any justifiable motive, with treachery and abuse of superior strength, the
accused being then armed with a .38 cal. revolver, while the victim was
unarmed, suddenly attacked the victim without giving the latter the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL QUIJADA Y opportunity to defend himself, and with evident premeditation, the accused
CIRCULADO, accused-appellant. having harbored a grudge against the victim a week prior to the incident of
murder, did then and there willfully, unlawfully and feloniously attack, assault
DECISION and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting
DAVIDE, JR., J.: the latter on his head and causing serious injuries which resulted to his
death; to the damage and prejudice of the heirs of the deceased.
Accused-appellant Daniel Quijada appeals from the decision of 30
September 1993 of Branch 1 Acts committed contrary to the provision of Art. 248 of the Revised Penal
of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses Code, with aggravating circumstance of nighttime being purposely sought for
separately charged in two informations, viz., murder under Article 248 of the or taken advantage of by the accused to facilitate the commission of the
Revised Penal Code and illegal possession of firearm in its aggravated form crime.[11]
under P.D. No. 1866, and imposing upon him the penalty
of reclusion perpetua for the first crime and an indeterminate penalty ranging CRIMINAL CASE NO. 8179
from seventeen years, four months, and one day, as minimum, to twenty
years and one day, as maximum, for the second crime.[1] That on or about the 30th day of December, 1992, in the municipality of
Dauis, province of Bohol, Philippines, and within the jurisdiction of this
The appeal was originally assigned to the Third Division of the Court Honorable Court, the abovenamed accused, did then and there willfully,
but was later referred to the Court en banc in view of the problematical issue unlawfully and feloniously keep, carry and have in his possession, custody
of whether to sustain the trial court's judgment in conformity with the doctrine and control a firearm (hand gun) with ammunition, without first obtaining the
laid down in People vs. Tac-an,[2] People vs. Tiozon,[3] People vs. Caling, necessary permit or license to possess the said firearm from competent
[4]
People vs. Jumamoy,[5] People vs. Deunida,[6] People vs. Tiongco,[7]People authorities which firearm was carried by the said accused outside of his
vs. Fernandez,[8] and People vs. Somooc,[9] or to modify the judgment and residence and was used by him in committing the crime of Murder with
convict the appellant only of illegal possession of firearm in its aggravated Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the
form pursuant to People vs.Barros,[10] which this Court (Second Division) Republic of the Philippines.
decided on 27 June 1995.
The informations read as follows: Acts committed contrary to the provisions of P.D. No. 1866.[12]
Having arisen from the same incident, the cases were consolidated, (TSN, Crim Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of the
and joint hearings were had. The witnesses presented by the prosecution preceding paragraphs).
were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO
At around midnight, the incident was reported to then Acting Chief of
Gondalino Inte, Dr. Greg Julius Sodusta, Rosita Iroy, and Teodula
Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin Police Felipe Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula
Matalinis. The police officer made entries in the police blotter regarding the
Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself.
shooting and correspondingly, ordered his men to pick up the appellant. But
The evidence for the prosecution is summarized by the Office of the they were unable to locate appellant on that occasion (TSN, Crim. Case
Solicitor General in the Brief for the Appellee as follows: Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
On 25 December 1992, a benefit dance was held at the Basketball In the afternoon of 31 December 1992, appellant, together with his
Court of Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight father Teogenes Quijada went to the police station at Dauis, Bohol. There
occurred between Diosdado Iroy and appellant Daniel Quijada as the latter and then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as the
was constantly annoying and pestering the former's sister. Rosita Iroy (TSN, person who shot Diosdado Iroy. These facts were entered in the police
Crim. Cases 8178 & 8179, June 8, 1993, pp. 32-35; August 5, 1993, pp. 14- blotter as Entry No. 1151 (TSN, Crim. Case Nos. 8178 & 8179, ibid. p. 14,
15). June 14, 1993, pp. 4-6).[13]
In the evening of 30 December 1992, another benefit dance/disco was The slug was embedded at the midbrain.[14] Diosdado Iroy died of
held in the same place. This benefit dance was attended bv Rosita Iroy, Ariel Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to
Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy. massive intracranial hemorrhage, secondary to gunshot wound, 1 cm. left
occipital area, transacting cerebellum up to midbrain.[15]
While Rosita Iroy and others were enjoying themselves inside the
dancing area, Diosdado Iroy, Eugene Nesnea and Largo Iroy, who were then The firearm used by the appellant in shooting Diosdado Iroy was not
sitting at the plaza (the area where they positioned themselves was duly licensed. Per certifications issued on 26 April 1993, the appellant was not a
lighted and was approximately four meters from the dancing hall), decided to duly licensed firearm holder as verified from a consolidated list of licensed
just watch the activities in the dance hall directly from the plaza. firearm holders in the province[16] and was not authorized to carry a firearm
outside his residence.[17]
After dancing, Rosita Iroy decided to leave and went outside the gate
of the dance area. Subsequently, or around 11:30 of the same night, while The appellant interposed the defense of alibi, which the trial court
facing the direction of Diosdado Iroy, Rosita lroy saw appellant rejected because he was positively identified by prosecution witness Rosita
surreptitiously approach her brother Diosdado Iroy from behind. Suddenly, Iroy. It summarized his testimony in this wise:
appellant fired his revolver at Diosdado Iroy, hitting the latter at the back
Daniel Quijada y Circulado, the accused in the instant cases, declared
portion of the head. This caused Rosita Iroy to spontaneously shout that
appellant shot her brother; while appellant, after shooting Diosdado Iroy, ran that in the afternoon of December 30, 1992 he was in their house At 6:00
o'clock in the afternoon he went to Tagbilaran City together with Julius
towards the cornfield.
Bonao in a tricycle No. 250 to solicit passengers. They transported
Diosdado Iroy was immediately rushed by Elmer Nigparanon and passengers until 10:30 o'clock in the evening. They then proceeded to the
Largo Iroy to the hospital but the injury sustained was fatal. In the meantime, Tagbilaran wharf waiting for the passenger boat Trans Asia Taiwan. Before
Rosita Iroy went home and relayed to her parents the unfortunate incident the arrival of Trans Asia Taiwan they had a talk with Saturnino
Maglopay. They were able to pick up two passengers for Graham Avenue executed a waiver otherwise he will only be entitled to 4/5 of the time he has
near La Roca Hotel. They then returned to the Tagbilaran wharf for the undergone preventive imprisonment to be deducted from his term of
arrival of MV Cebu City that docked at 12:10 past midnight. They had a talk sentence if he has not executed a waiver.[19]
with Saturnino Maglopay who was waiting for his aunties scheduled to arrive
aboard MV Cebu City. They were not able to pick up passengers which, as a On 29 October 1993, after discovering that it had inadvertently omitted
in the decision an award of civil indemnity and other damages in Criminal
consequence, they went home. They had on their way home passengers for
the Agora Public Market. They arrived at the house of Julian Bonao at Bil- Case No. 8178, the trial court issued an order directing the appellant to pay
the parents of the victim the amount of P50,000.00 as indemnity for the
isan, Panglao, Bohol at 3:00 o'clock in the morning of December 31, 1992
where he passed the night. He went home to Mariveles, Dauis, Bohol at death of their son and P10,000.00 for funeral expenses.[20] The order was to
form an integral part of the decision.
9:00 o'clock in the morning.[18]
The trial court gave full faith and credit to the version of the prosecution The decision was promulgated on 29 October 1993.[21]
and found the appellant guilty beyond reasonable doubt of the crimes The appellant forthwith interposed the present appeal, and in his Brief,
charged and sentenced him accordingly. It appreciated the presence of the he contends that the trial court erred
qualifying circumstance of treachery considering that the appellant shot the
victim at the back of the head while the latter was watching the dance. The I
dispositive portion of the decision dated 30 September 1993 reads as
follows: . . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE
TO THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds AND FELIPE NIGPARANON.
the accused Daniel Quijada guilty of the crime of murder punished under
Article 248 of the Revised Penal Code and hereby sentences him to suffer II
an imprisonment of Reclusion Perpetua, with the accessories of the law and
to pay the cost.
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE
In Criminal Case No. 8179, the Court finds the accused Daniel Quijada WITNESSES EDWIN NISTAL AND ALFRED ARANZADO, AND IN
guilty of the crime of Qualified Illegal Possession of Firearm and Ammunition DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-
punished under Sec. 1 of R.A. No. 1866 as amended, and hereby sentences APPELLANT PARTICULARLY THE RELATIVE POSITIONS OF DIOSDADO
him to suffer an indeterminate sentence from Seventeen (17) years Four (4) IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO.
months and One (1) day, as minimum, to Twenty (20) years and One (1)
day, as maximum, with the accessories of the law and to pay the cost. III
The slug or bullet which was extracted from the brain at the back
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES
portion of the head of the victim Diosdado Iroy is hereby ordered forfeited in
ROSITA IROY AND SP04 FELIPE NIGPARANON HAD MOTIVES IN
favor of the government.
FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT.[22]
It appearing that the accused Daniel Quijada has undergone
preventive imprisonment he is entitled to the full time he has undergone The appellant then submits that the issue in this case boils down to the
preventive imprisonment to be deducted from the term of sentence if he has identity of the killer of Diosdado Iroy. To support his stand that the killer was
not identified, he attacks the credibility of prosecution witnesses Rosita Iroy reason to falsely implicate the appellant in the death of her brother
and SP04 Felipe Nigparanon. He claims that the former had a motive "to put Diosdado.
him in a bad light" and calls our attention to her direct testimony that her
The claim that Rosita could not have seen who shot her brother
brother Diosdado, the victim, boxed him on the night of 25 December 1992
because he allegedly "bothered her." He further asserts that Rosita could not Diosdado because, as testified to by defense witnesses Nistal and
Aranzado, she was inside the dancing hall and rushed to her brother only
have seen the person who shot Diosdado considering their respective
positions, particularly Rosita who, according to defense witnesses Nistal and after the latter was shot is equally baseless. The following testimony of
Rosita shows beyond cavil that she saw the assailant:
Aranzado, was still inside the dancing area and ran towards the crime scene
only after Diosdado was shot. And, the appellant considers it as suppression Q You said that you were initially dancing inside the dancing place and
of evidence when the prosecution did not present as witnesses Diosdado's you went out, about what time did you get out?
companions who were allegedly seated with Diosdado when he was shot.
A 11:00 o'clock.
As to SPO4 Nigparanon, the appellant intimates improper motives in
that the said witness is a neighbor of the Iroys, and when he testified, a case Q And you were standing about two (2) meters from Diosdado Iroy until
for arbitrary detention had already been filed against him by the 11:30 when the incident happened?
appellant. The appellant further claims of alleged omissions and unexplained A Yes, I was standing.
entries in the police blotter.
Q And where did you face, you were facing Diosdado Iroy or the
Finally, the appellant wants us to favorably consider his defense of alibi dancing area?
which, according to him, gained strength because of the lack of evidence on
the identity of the killer.Furthermore, he stresses that his conduct in A I was intending to go near my brother. I was approaching and getting
voluntarily going to the police station after having been informed that he, near going to my brother Diosdado Iroy and while in the process I
among many others, was summoned by the police is hardly the actuation of saw Daniel Quijada shot my brother Diosdado Iroy.[23]
the perpetrator of the killing of Diosdado Iroy -- specially so if Rosita Iroy's xxx xxx xxx
claim is to be believed that moments after the shooting she shouted that
Daniel Quijada shot Diosdado Iroy. Q And in your estimate, how far was your brother Diosdado Iroy while
he was sitting at the plaza to the dancing place?
In its Appellee's Brief, the People refutes every argument raised by the
appellant and recommends that we affirm in toto the challenged decision. A More or less four (4) meters distance.
After a careful scrutiny of the records and evaluation of the evidence COURT:
adduced by the parties, we find this appeal to be absolutely without merit.
From the dancing hall?
The imputation of ill-motive on the part of Rosita Iroy and the basis
A Yes, your honor.
therefor hardly persuade. The appellant was the one who was boxed by and
lost to Diosdado Iroy in their fight on the night of 25 December 1992. It is Q And in your observation, was the place where Diosdado Iroy was
then logical and consistent with human experience that it would be the sitting lighted or illuminated?
appellant who would have forthwith entertained a grudge, if not hatred,
against Diosdado. No convincing evidence was shown that Rosita had any A Yes, sir.
Q What kind of light illuminated the place? Q What was the color of the electric bulb in the gate of the dancing
place?
A I do not know what kind of light but it was lighted.
A The white bulb.[25]
Q Was it an electric light?
The trial court disbelieved the testimony of Nistal and Aranzado. It
A It is electric light coming from a bulb. explicitly declared:
Q Where is that electric bulb that illuminated the place located?
The factual findings of the Court in the instant case is anchored principally in
A It was placed at the gate of the dancing place and the light from the ". . . observing the attitude and deportment of witnesses while listening to
house. them speak (People vs. Magaluna, 205, SCRA 266).
Q You said gate of the dancing place, you mean the dancing place was
enclosed at that time and there was a gate, an opening? thereby indicating that on the basis of the witnesses' deportment and
manner of testifying, the declarations of Nistal and Aranzado failed to
A Yes, sir. convince the trial court that they were telling the truth. Settled is the rule that
Q What material was used to enclose the dancing place? the factual findings of the trial court, especially on the credibility of
witnesses, are accorded great weight and respect. For, the trial court has the
A Bamboo. advantage of observing the witnesses through the different indicators of
Q And how far was the bulb which was placed near the entrance of the truthfulness or falsehood, such as the angry flush of an insisted assertion or
dancing place to the place where Diosdado Iroy was sitting? the sudden pallor of a discovered lie or the tremulous mutter of a reluctant
answer or the forthright tone of a ready reply;[26] or the furtive glance, the
A Five (5) meters. blush of conscious shame, the hesitation, the sincere or the flippant or
sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack
Q You mentioned also that there was a light coming from the house,
of it, the scant or full realization of the solemnity of an oath, the carriage and
now whose house was that?
mien.[27] The appellant has miserably failed to convince us that we must
A The house of spouses Fe and Berto, I do not know the family name. depart from this rule.
Q Was the light coming from the house of spouses Fe and Berto an Neither are we persuaded by the claimed suppression of evidence
electric light? occasioned by the non-presentation as prosecution witnesses any of the
companions of Diosdado who were seated with him when he was shot. In
A Yes sir. the first place, the said companions could not have seen from their back the
Q And in your estimate, how far was the source of light of the house of person who suddenly shot Diosdado. In the second place, the testimony of
Fe and Berto to the place where Diosdado Iroy was sitting? the companions would, at the most, only corroborate that of Rosita
Iroy. Besides, there is no suggestion at all that the said companions were
A About six (6) meters distance.[24] not available to the appellant. It is settled that the presumption in Section 3
xxx xxx xxx (e), Rule 131 of the Rules of Court that evidence willfully suppressed would
be adverse if produced does not apply when the testimony of the witness is
merely corroborative or where the witness is available to the accused.[28]
The alleged improper motive on the part of SP04 Nigparanon simply maximum period to reclusion perpetua shall be imposed upon any person
because he is a neighbor of the Iroy; remains purely speculative, as no who shall unlawfully manufacture, deal in, acquire, dispose or possess any
evidence was offered to establish that such a relationship affected SP04 firearm, part of firearm, ammunition or machinery, tool or instrument used or
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the intended to be used in the manufacture of any firearm or ammunition.
presumption of regularity in the performance of his official duty.[29] As to the
alleged omissions and unexplained entries in the police blotter, the same If homicide or murder is committed with the use of an unlicensed
were sufficiently clarified by SP04 Nigparanon. firearm, the penalty of death shall be imposed.
The defense of alibi interposed by the appellant deserves scant In light of the doctrine enunciated in People vs. Tac-an,[35] and
consideration. He was positively identified by a credible witness. It is a reiterated in People vs. Tiozon,[36] People vs. Caling,
fundamental judicial dictum that the defense of alibi cannot prevail over the [37]
People vs. Jumamoy,[38] People vs. Deunida,[39] People vs. Tiongco,[40] Pe
positive identification of the accused.[30] Besides, for that defense to prosper ople vs. Fernandez,[41] and People vs. Somooc,[42] that one who kills another
it is not enough to prove that the accused was somewhere else with the use of an unlicensed firearm commits two separate offenses of (1)
when the crime was committed; he must also demonstrate that it was either homicide or murder under the Revised Penal Code, and (2)
physically impossible for him to have been at the scene of the crime at the aggravated illegal possession of firearm under the second paragraph of
time of its commission.[31] As testified to by defense witness Julian Bonao, Section 1 of P.D. No. 1866, we sustain the decision of the trial court finding
the Tagbilaran wharf, where the appellant said he was, is only about eight to the appellant guilty of two separate offenses of murder in Criminal Case No.
nine kilometers away from the crime scene and it would take only about 8178 and of aggravated illegal possession of firearm in Criminal Case No.
thirty minutes to traverse the distance with the use of a tricycle. [32] It was, 8179.
therefore, not physically impossible for the appellant to have been at the
scene of the crime at the time of its commission. Although Tac-an and Tiozon relate more to the issue of whether there
is a violation of the constitutional proscription against double jeopardy if an
Finally, the appellant asserts that if he were the killer of Diosdado Iroy, accused is prosecuted for homicide or murder and for aggravated illegal
he would not have voluntarily proceeded to the police station. This argument possession of firearm, they at the same time laid down the rule that these
is plain sophistry. The law does not find unusual the voluntary surrender of are separate offenses, with the first punished under the Revised Penal Code
offenders; it even considers such act as a mitigating circumstance. and the second under a special law; hence, the constitutional bar against
[33]
Moreover, non-flight is not conclusive proof of innocence.[34] double jeopardy will not apply. We observed in Tac-an:
The evidence for the prosecution further established with moral
certainty that the appellant had no license to possess or carry a firearm. The It is elementary that the constitutional right against double jeopardy protects
firearm then that he used in shooting Diosdado Iroy was unlicensed. He, one against a second or later prosecution for the same offense, and that
therefore, committed the crime of aggravated illegal possession of firearm when the subsequent information charges another and different offense,
under the second paragraph of Section 1 of P.D. No. 1866, which reads: although arising from the same act or set of acts, there is no prohibited
double jeopardy. In the case at bar, it appears to us quite clear that the
offense charged in Criminal Case No. 4007 is that of unlawful possession of
SEC.
an unlicensed firearm penalized under a special statute, while the offense
1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Fire
charged in Criminal Case No. 4012 was that of murder punished under the
arms, Ammunition or Instruments Used or Intended to be Used in the Manuf
Revised Penal Code. It would appear self-evident that these two (2)
acture of Firearms or Ammunition -- The penalty of reclusion temporal in its
offenses in themselves are quite different one from the other, such that in under one does not bar prosecution under the other. Phrased elsewise,
principle, the subsequent filing of Criminal Case No. 4012 is not to be where two different laws (or articles of the same code) defines two crimes,
regarded as having placed appellant in a prohibited second jeopardy. prior jeopardy as to one of them is not obstacle to a prosecution of the other,
although both offenses arise from the same fact, if each crime involves
And we stressed that the use of the unlicensed firearm cannot serve to some important act which is not an essential element of the other.
increase the penalty for homicide or murder; however, the killing of a person
with the use of an unlicensed firearm, by express provision of P.D. No. 1866, In People vs. Bacolod [89 Phil. 621], from the act of firing a shot from a sub-
shall increase the penalty for illegal possession of firearm. machine gun which caused public panic among the people present and
physical injuries to one, informations of physical injuries through reckless
In Tiozon, we stated: imprudence and for serious public disturbance were filed. Accused pleaded
guilty and was convicted in the first and he sought to dismiss the second on
It may be loosely said that homicide or murder qualifies the offense the ground of double jeopardy. We ruled:
penalized in said Section 1 because it is a circumstance which increases the
penalty. It does not, however, follow that the homicide or murder is absorbed The protection against double jeopardy is only for the same offense. A
in the offense; otherwise, an anomalous absurdity results whereby a more simple act may be an offense against two different provisions of law and if
serious crime defined and penalized in the Revised Penal Code is absorbed one provision requires proof of an additional fact which the other does not,
by a statutory offense, which is just a malum prohibitum. The rationale for an acquittal or conviction under one does not bar prosecution under the
the qualification, as implied from the exordium of the decree, is to effectively other.
deter violations of the laws on firearms and to stop the "upsurge of crimes
vitally affecting public order and safety due to the proliferation of illegally Since the informations were for separate offense[s] -- the first against a
possessed and manufactured firearms, x x x." In fine then, the killing of a person and the second against public peace and order -- one cannot be
person with the use of an unlicensed firearm may give rise to separate pleaded as a bar to the other under the rule on double jeopardy.
prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation
of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal In Caling, we explicitly opined that a person charged with aggravated
Code. The accused cannot plead one as a bar to the other; or, stated illegal possession of firearm under the second paragraph of Section 1 of
otherwise, the rule against double jeopardy cannot be invoked because the P.D. No. 1866 can also be separately charged with and convicted of
first is punished by a special law while the second, homicide or murder, is homicide or murder under the Revised Penal Code and punished
punished by the Revised Penal Code. accordingly. Thus:

In People vs. Doriguez, [24 SCRA 163, 171], We held: It seems that the Court a quo did indeed err in believing that there is such a
thing as "the special complex crime of Illegal Possession of Unlicensed
It is a cardinal rule that the protection against double jeopardy may be Firearm Used in Homicide as provided for and defined under the 2nd
invoked only for the same offense or identical offenses. A simple act may paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty
offend against two (or more) entirely distinct and unrelated provisions of law, thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended,"
and if one provision requires proof of an additional fact or element which the reads as follows:
other does not, an acquittal or conviction or a dismissal of the information
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or parately punished and defined under the Revised Penal Code. (emphasis su
Possession of Firearms [or] Ammunition or Instruments Used or Intended to pplied)
be Used in the Manufacture of Firearms or Ammunition. - The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be In Jumamoy, we reiterated Caling and amplified the rationale on why
imposed upon any person who shall unlawfully manufacture, deal in, an accused who kills another with an unlicensed firearm can be prosecuted
acquire, dispose, or possess any firearm, part of firearm, ammunition or and punished for the two separate offenses of violation of the second
machinery, tool or instrument used or intended to be used in the paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under
manufacture of any firearm or ammunition. the Revised Penal Code. Thus:

If homicide or murder is committed with the use of an unlicensed firearm, the Coming to the charge of illegal possession of firearms, Section 1 of P.D. No.
penalty of death shall be imposed." 1866 penalizes, inter alia, the unlawful possession of firearms or ammunition
with reclusion temporal in its maximum period
What is penalized in the first paragraph, insofar as material to the present to reclusion perpetua. However, under the second paragraph thereof, the
case is the sole, simple act of a person who shall, among others, "unlawfully penalty is increased to death if homicide or murder is committed with the use
possess any firearm x x x (or) ammunition x x x." Obviously, possession of of an unlicensed
any firearm is unlawful if the necessary permit and/or license therefor is not firearm. It may thus be loosely said thathomicide or murder qualifies the offe
first obtained. To that act is attached the penalty nse because both are circumstances which increase the penalty. It does not,
of reclusion temporal, maximum, to reclusion perpetua.Now, if "with the use however, follow that the homicide or murder is absorbed in the offense. If the
of (such) an unlicensed firearm, a "homicide or murder is committed," the se were to be so,an anomalous absurdity would result whereby a more serio
crime is aggravated and is more heavily punished, with the capital us crime defined and penalized under the Revised Penal Code will be absor
punishment. bed by a statutory offense, one which is merely malum prohibitum.Hence, th
e killing of a person with the use of an unlicensed firearm may give rise to se
The gravamen of the offense in its simplest form is, basically, the fact of pos parate prosecutions for (a) the violation of Section 1 of P.D. No. 1866 and (b)
session of a firearm without license. The crime may be denominated simple i the violation of either Article 248 (Murder)or Article 249 (Homicide) of the Re
llegal possession, to distinguish it from its aggravatedform. It is Aggravated if vised Penal Code. The accused cannot plead one to bar the other; stated
the unlicensed firearm is used in the commission of a homicide or murder un otherwise, the rule against double jeopardy cannot be invoked as the first is
der the Revised Penal Code. But the homicide or murder is not absorbed in t punished by a special law while the second - Murder or Homicide - is
he crime of possession of anunlicensed firearm; neither is the latter absorbe punished by the Revised Penal Code. [citing People vs. Tiozon, 198 SCRA
d in the former. There are two distinct crimes that are here spoken of. One is 368, 379 (1991); People vs. Doriguez, 24 SCRA 163 (1968)]. Considering,
unlawful possession of a firearm, which may be either simple or aggravated, however, that the imposition of the death penalty is prohibited by the
defined and punished respectively by the first and second paragraphs of Sec Constitution, the proper imposable penalty would be the penalty next lower
tion 1 of PD 1866. The other is homicide or murder, committed with the use in degree, or reclusion perpetua. (emphasis supplied)
of an unlicensed firearm. The mere possession of afirearm without legal auth
ority consummates the crime under P.D. 1866, and the liability for illegal pos In Deunida, in discussing the propriety of the Government's action in
session is made heavier by the firearm's use in a killing. The killing, whether withdrawing an information for murder and pursuing only the information for
homicide or murder, isobviously distinct from the act of possession, and is se "Qualified Illegal Possession of Firearm," this Court categorically declared:
At the outset, it must be stressed that, contrary to the prosecution's legal only that of illegal possession of firearm in its aggravated form, in light of the
position in withdrawing the information for murder, the offense defined in the legal principles and propositions set forth in the separate opinion of Mr.
second paragraph of Section 1 of P.D. No. 1866 does not absorb the crime Justice Florenz D. Regalado, to which the Members of the Division,
of homicide or murder under the Revised Penal Code and, therefore, does the ponente included, subscribe.
not bar the simultaneous or subsequent prosecution of the latter crime. The
1982 decision in Lazaro vs. People, involving the violation of P.D. No. 9, The pertinent portions of the separate opinion of Mr. Justice Florenz D.
which the investigating prosecutor invokes to justify the withdrawal, is no Regalado referred to therein read as follows:
longer controlling in view of our decisions in People vs. Tac-
an, People vs. Tiozon, and Peoplevs. Caling. This premise accordingly brings up the second query as to whether or not
the crime should properly be the aggravated illegal possession of an
In Somooc, we once more ruled: unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only
The offense charged by the Information is clear enough from the terms of for the graver offense of aggravated illegal possession of the firearm
that document, although both the Information and the decision of the trial punished by death under the second paragraph of Section 1, Presidential
court used the term "Illegal Possession of Firearm with Homicide," a phrase Decree No. 1866, and it is on this point that the writer dissents from the
which has sometimes been supposed to connote a "complex crime as used holding which would impose a separate penalty for the homicide in addition
in the Revised Penal Code. Such nomenclature is, however, as we have to that for the illegal possession of the firearm used to commit the former.
ruled in People vs. Caling, a misnomer since there is no complex crime of
illegal possession of firearm with homicide. The gravamen of the offense If the possession of the unlicensed firearm is the only offense imputable to
penalized in P.D. No. 1866 is the fact of possession of a firearm without a the accused, the Court has correctly held that to be the simple possession
license or authority for such possession. This offense is aggravated and the punished with reclusion temporal in its maximum period
imposable penalty upgraded if the unlicensed firearm is shown to have been to reclusion perpetua in the first paragraph of Section 1. Where,
used in the commission of homicide or murder, offenses penalized under the complementarily, the unlicensed firearm is used to commit homicide or
Revised Penal Code. The killing of a human being, whether characterized as murder, then either of these felonies will convert the erstwhile simple illegal
homicide or murder, is patently distinct from the act of possession of an possession into the graver offense of aggravated illegal possession. In other
unlicensed firearm and is separately punished under the provisions of the words, the homicide or murder constitutes the essential element for
Revised Penal Code. integrating into existence the capital offense of the aggravated form of illegal
possession of a firearm. Legally, therefore, it would be illogical and
The foregoing doctrine suffered a setback when in our decision of 27 unjustifiable to use the very same offenses of homicide or murder as integral
June 1995 in People vs. Barros,[43] we set aside that portion of the appealed elements of and to create the said capital offense, and then treat the former
decision convicting the appellant of the offense of murder and affirmed that all over again as independent offenses to be separately punished further,
portion convicting him of illegal possession of firearm in its aggravated with penalties immediately following the death penalty to boot.
form. We therein made the following statement:
The situation contemplated in the second query is, from the punitive
[A]ppellant may not in the premises be convicted of two separate offenses standpoint, virtually of the nature of the so-called, special complex crimes,"
[of illegal possession of firearm in its aggravated form and of murder], but which should more appropriately be called composite crimes, punished in
Article 294, Article 297 and Article 335. They are neither of the same legal to harmonize their provision" which must be updated and revised in order to
basis as nor subject to the rules on complex crimes in Article 48, since they more effectively deter violators of said laws.
do not consist of a single act giving rise to two or more grave or less grave
felonies nor do they involve an offense being a necessary means to commit This would be akin to the legislative intendment underlying the provisions of
another. However, just like the regular complex crimes and the present case the Anti-Carnapping Act of 1972, wherein the principal crime to be charged
of aggravated illegal possession of firearms, only a single penalty is imposed is still carnapping, although the penalty therefore is increased when the
for each of such composite crimes although composed of two or more owner, driver or occupant of the carnapped vehicle is killed. The same
offenses. situation, with escalating punitive provisions when attended by a killing, are
found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 and the
On the other hand, even if two felonies would otherwise have been covered Anti-Cattle Rustling Law of 1974, wherein the principal crimes still are piracy,
by the conceptual definition of a complex crime under Article 48, but the highway robbery and cattle rustling. Also, in the matter of destructive arson,
Code imposes a single definite penalty therefor, it cannot also be punished the principal offense when, inter alia, death results as a consequence of the
as a complex crime, much less as separate offense, but with only the single commission of any of the acts punished under said article of the Code.
penalty prescribed by law. Thus, even where a single act results in two less
grave felonies of serious physical injuries and serious slander by deed, the In the present case, the academic value of specifying whether it is a case of
offense will not be punished as a delito compuesto under Article 48 but as illegal possession of firearm resulting in homicide or murder, or, conversely,
less serious physical injuries with ignominy under the second paragraph of homicide or murder through the illegal possession and use of an unlicensed
Article 265. The serious slander by deed is integrated into and produces a firearm, would lie in the possible application of the provision on
graver offense, and the former is no longer separately punished. recidivism. Essentially, it would be in the theoretical realm since, taken either
way, the penalty for aggravated illegal possession of a firearm is the single
What is, therefore, sought to be stressed by such alternative illustration, as indivisible penalty of death, in which case the provision on recidivism would
well as the discussion on complex and composite crimes, is that when an not apply. If, however, the illegal possession is not established but either
offense becomes a component of another, the resultant crime being homicide or murder is proved, then the matter of recidivism may have some
correspondingly punished as thus aggravated by the integration of the other, significance in the sense that, for purposes thereof, the accused was
the former is not to be further separately punished as the majority would convicted of a crime against persons and he becomes a recidivist upon
want to do with the homicide involved in the case at bar. conviction of another crime under the same title of the Code.

With the foregoing answers to the second question, the third inquiry is more Lastly, on the matter of the offense or offenses to be considered and the
of a question of classification for purposes of the other provisions of the penalty to be imposed when the unlawful killing and the illegal possession
Code. The theory in Tac-an that the principal offense is the aggravated form are charged in separate informations, from what has been said the
of illegal possession of firearm and the killing shall merely be included in the appropriate course of action would be to consolidate the cases and render a
particulars or, better still, as an element of the principal offense, may be joint decision thereon, imposing a single penalty for aggravated illegal
conceded. After all, the plurality of crimes here is actually source from the possession of firearm if such possession and the unlawful taking of life shall
very provisions of Presidential Decree No. 1866 which sought to have been proved, or for only the proven offense which may be either simple
"consolidate, codify and integrate" the various laws and presidential decrees illegal possession, homicide or murder per se. The same procedural rule
and substantive disposition should be adopted if one information for each
offense was drawn up and these informations were individually assigned to separately charged, be invariably consolidated for joint decision. Conjointly,
different courts or branches of the same court. this is the course necessarily indicated since only a single composite crime
is actually involved and it is palpable error to deal therewith and dispose
Indeed, the practice of charging the offense of illegal possession separately thereof by segregated parts in piecemeal fashion.
from the homicide or murder could be susceptible of abuse since it entails
undue concentration of prosecutorial powers and discretion. Prefatorily, the If we follow Barros, the conviction of the appellant for murder in
fact that the killing was committed with a firearm will necessarily be known to Criminal Case No. 8178 must have to be set aside. He should only suffer the
the police or prosecutorial agencies, the only probable problem being the penalty for the aggravated illegalpossession of firearm in Criminal Case No.
determination and obtention of evidence to show that the firearm is 8179.
unlicensed.
The Court en banc finds in this appeal an opportunity to reexamine the
existing conflicting doctrines applicable to prosecutions for murder or
Now, if a separate information for homicide or murder is filed without alleging
homicide and for aggravated illegal possession of firearm in instances where
therein that the same was committed by means of an unlicensed firearm, the
an unlicensed firearm is used in the killing of a person. After a lengthy
case would not fall under Presidential Decree No. 1866. Even if the use of a
deliberation thereon, the Court en banc arrived at the conclusion that the
firearm is alleged therein, but without alleging the lack of a license therefor
rule laid down in Tac-an, reiterated
as where that fact has not yet been verified, the mere use of a firearm by
in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is
itself, even if proved in that case, would not affect the accused either since it
the better rule, for it applies the laws concerned according to their letter and
is not an aggravating or qualifying circumstance.
spirit, thereby steering this Court away from a dangerous course which could
have irretrievably led it to an inexcusable breach of the doctrine of
Conversely, if the information is only for illegal possession, with the separation of powers through Judicial legislation. That rule upholds and
prosecution intending to file thereafter the charge for homicide or murder but enhances the lawmaker's intent or purpose in aggravating the crime of
the same is inexplicably delayed or is not consolidated with the information illegal possession of firearm when an unlicensed firearm is used in the
for illegal possession, then any conviction that may result from the former commission of murder or homicide. Contrary to the view of our esteemed
would only be for simple illegal possession. If, on the other hand, the brother, Mr. Justice Florenz D. Regalado, in his Concurring and Dissenting
separate and subsequent prosecution for homicide or murder prospers, the Opinion in the case under consideration, Tac-an did not enunciate an
objective of Presidential Decree No. 1866 cannot be achieved since the unfortunate doctrine or a "speciously camouflaged theory" which "constitutes
penalty imposable in that second prosecution will only be for the unlawful an affront on doctrinal concepts of penal law and assails even the ordinary
killing and further subject to such modifying circumstances as may be notions of common sense."
proved.
If Tac-an did in fact enunciate such an "unfortunate doctrine," which
In any event, the foregoing contingencies would run counter to the this Court has reiterated in a convincing number of cases and for a
proposition that the real offense committed by the accused, and for which convincing number of years, so must the same verdict be made in our
sole offense he should be punished, is the aggravated form of illegal decision in People vs. De Gracia,[44] which was promulgated on 6 July
possession of a firearm. Further, it is the writer's position that the possible 1994. In the latter case, we held that unlawful possession of an unlicensed
problems projected herein may be minimized or obviated if both offenses firearm in furtherance of rebellion may give rise to separate prosecutions for
involved are charged in only one information or that the trial thereof, if a violation of Section 1 of P.D. No. 1866 and also for a violation of Articles
134 and 135 of the Revised Penal Code on rebellion. A distinction between As a matter of fact, in one case involving the constitutionality of Section 1 of
that situation and the case where an unlicensed firearm is used in homicide Presidential Decree No. 1866, the Court has explained that said provision of
or murder would have no basis at all. In De Gracia, this Court, speaking the law will not be invalidated by the mere fact thatthe same act is penalized
through Mr. Justice Florenz D. Regalado, made the following authoritative under two different statutes with different penalties, even if considered highly
pronouncements: advantageous to the prosecution and onerous to the accused. It follows that,
subject to the presence ofrequisite elements in each case, unlawful possessi
III. As earlier stated, it was stipulated and admitted by both parties that from on of an unlicensed firearm in furtherance of rebellion may give rise to separ
November 30, 1989 up to and until December 9, 1989, there was a ate prosecutions for a violation of Section 1 of Presidential Decree No. 1866,
rebellion. Ergo, our next inquiry is whether or not appellant's possession of andalso a violation of Articles 134 and 135 of the Revised Penal Code on re
the firearms, explosives and ammunition seized and recovered from him bellion. Double jeopardy in this case cannot be invoked because the first is a
was for the purpose and in furtherance of rebellion. n offense punished by a special law while the second is afelony punished by
the Revised Penal Code with variant elements.
The trial court found accused guilty of illegal possession of firearms in
furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised We cannot justify what we did in De Gracia with a claim that the virtue
Penal Code which states that "any person merely participating or executing of fidelity to a controlling doctrine, i.e., of Tac-an, had compelled us to do
the command of others in a rebellion shall suffer the penalty so. Indeed, if Tac-an enunciated an "unfortunate doctrine" which is "an
of prision mayor in its minimum period." The court below held that appellant affront on doctrinal concepts of penal law and assails even the ordinary
De Gracia, who had been servicing the personal needs of Col. Matillano notions of common sense," then De Gracia should have blazed the trail of a
(whose active armed opposition against the Government, particularly at the new enlightenment and forthwith set aside the "unfortunate doctrine" without
Camelot Hotel, was well known), is guilty of the act of guarding the any delay to camouflage a judicial faux pas or a doctrinal
explosives and "molotovbombs for and in behalf of the latter. We accept this quirk. De Gracia provided an excellent vehicle for an honorable departure
finding of the lower court. from Tac-an because no attack on the latter was necessary as the former
merely involved other crimes to which the doctrine in Tac-an might only be
The above provision of the law was, however, erroneously and improperly applied by analogy. De Gracia did not even intimate the need to
used by the court below as a basis in determining the degree of liability of reexamine Tac-an; on the contrary, it adapted the latter to another category
appellant and the penalty to be imposed on of illegal possession of firearm qualified by rebellion precisely because the
him. It mustbe made clear that appellant is charged with the qualified offens same legal principle and legislative purpose were involved, and not
e of illegal possession of firearms in furtherance of rebellion under Presidenti because De Gracia wanted to perpetuate an "unfortunate doctrine" or to
al Decree No. 1866 which, in law, is distinct from the crime ofrebellion punis embellish "the expanding framework of our criminal law from barnacled
hed under Article 134 and 135 of the Revised Penal Code. There are two se ideas which have not grown apace with conceptual changes over time," as
parate statutes penalizing different offenses with discrete penalties. The Rev the concurring and dissenting opinion charges.
ised Penal Code treats rebellion as acrime apart from murder, homicide, ars The majority now reiterates the doctrine in Tac-an and the subsequent
on, or other offenses, such as illegal possession of firearms, that might conc cases not because it has become hostage to the "inertia of time [which] has
eivably be committed in the course of a rebellion. Presidential Decree No. 18 always been the obstacle to the virtues of change," as the concurring and
66 defines andpunishes, as a specific offense, the crime of illegal possessio dissenting opinion finds it to be, but rather because it honestly believes
n of firearms committed in the course or as part of a rebellion. that Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied
in Tac-an is an "affront on doctrinal concepts of penal laws and assails even The second paragraph of the aforestated Section 1 expressly and
the ordinary notions of common sense," the blame must not be laid at the unequivocally provides for such illegal possession and resultant killing as a
doorsteps of this Court, but on the lawmaker's. All that the Court did in Tac- single integrated offense which is punished as such. The majority not only
an was to apply the law, for there was nothing in that case that warranted an created two offenses by dividing a single offense into two but, worse, it
interpretation or the application of the niceties of legal hermeneutics. It did resorted to the unprecedented and invalid act of treating the original offense
not forget that its duty is merely to apply the law in such a way that shall not as a single integrated crime and then creating another offense by using a
usurp legislative powers by judicial legislation and that in the course of such component crime which is also an element of the former.
application or construction it should not make or supervise legislation, or
under the guise of interpretation modify, revise, amend, distort, remodel, or It would already have been a clear case of judicial legislation if the illegal
rewrite the law, or give the law a construction which is repugnant to its possession with murder punished with a single penalty have been divided
terms.[45] into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative
Murder and homicide are defined and penalized by the Revised Penal
powers for this Court to now, as it has done, treat that single offense as
Code[46] as crimes against persons. They are mala in se because malice
specifically described by the law and impose reclusion perpetua therefor
or dolo is a necessary ingredient therefor.[47] On the other hand, the offense
(since the death penalty for that offense is still proscribed), but then proceed
of illegal possession of firearm is defined and punished by a special penal
further by plucking out therefrom the crime of murder in order to be able to
law,[48] P.D. No. 1866. It is a malum prohibitum[49] which the lawmaker, then
impose the death sentence.For indeed, on this score, it is beyond cavil that
President Ferdinand E. Marcos, in the exercise of his martial law powers, so
in the aggravated form of illegal possession, the consequential murder (or
condemned not only because of its nature but also because of the larger
homicide) is an integrated element or integral component since without the
policy consideration of containing or reducing, if not eliminating, the upsurge
accompanying death, the crime would merely be simple illegal possession of
of crimes vitally affecting public order and safety due to the proliferation of
a firearm under the first paragraph of Section 1.
illegally possessed and manufactured firearms, ammunition, and
explosives. If intent to commit the crime were required, enforcement of the
decree and its policy or purpose would be difficult to achieve. Hence, there The second paragraph of Section 1 of P.D. No. 1866 does not warrant
is conceded wisdom in punishing illegal possession of firearm without taking and support a conclusion that it intended to treat "illegal possession
into account the criminal intent of the possessor. All that is needed and resultant killing" (emphasis supplied) "as a single and integrated
is intent to perpetrate the act prohibited by law, coupled, of course, offense" of illegal possession with homicide or murder. It does not use the
by animuspossidendi. However, it must be clearly understood that clause as a result or on the occasion of to evince an intention to create a
this animus possidendi is without regard to any other criminal or felonious single integrated crime. By its unequivocal and explicit language, which we
intent which an accused may have harbored in possessing the firearm.[50] quote to be clearly understood:

A long discourse then on the concepts If homicide or murder is committed with the use of an unlicensed firearm, the
of malum in se and malum prohibilum and their distinctions is an exercise in penalty of death shall be imposed. (emphasis supplied)
futility.
We disagree for lack of basis the following statements of Mr. Justice the crime of either homicide or murder is committed NOT AS A
Regalado in his Concurring and Dissenting Opinion, to wit: RESULT OR ON THE OCCASION of the violation of Section 1, but WITH
THE USE of an unlicensed firearm, whose possession is penalized
therein. There is a world of difference, which is too obvious, between (a) the b. Highway Robbery/Brigandage.-- The penalty of reclusion temporal in its
commission of homicide or minimum period shall be imposed. If physical injuries or other crimes are
murder as a result or on the occasion of the violation of Section 1, and (b) committed during or on the occasion of the commission of robbery or
the commission of homicide or murder with the use of an unlicensed brigandage, the penalty of reclusion temporal in its medium and maximum
firearm. In the first, homicide or murder is not the original purpose or primary periods shall be imposed. If kidnapping for ransom or extortion,
objective of the offender, but a secondary event or circumstance either or murder or homicide, or
resulting from or perpetrated on the occasion of the commission of that rape is committed as aresult or on the occasion thereof, the penalty of death
originally or primarily intended. In the second, the killing, which requires shall be imposed. (emphasis supplied)
a mens rea, is the primary purpose, and to carry that out effectively the
offender uses an unlicensed firearm. (b) Section 8 of P.D. No. 533 reads in part as follows:
As to the question then of Mr. Justice Regalado of whether this Court
should also apply the rule enunciated here to P.D. No. 532 (Anti-Piracy and SEC. 8. Penal provisions. -- Any person convicted of cattle rustling as herein
Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling Law defined shall, irrespective of the value of the large cattle involved, be
of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer punished by prision mayor in its maximum period to reclusion temporal in its
Penalties Therefor), the answer is resoundingly in the negative. In those medium period if the offense is committed without violence against or
cases, the lawmaker clearly intended a single integrated offense or a special intimidation of persons or force upon things. If the offense is committed with
complex offense because the death therein occurs violence against or intimidation of persons or force upon things, the penalty
as a result or on the occasion of the commission of the offenses therein of reclusion temporal in its maximum period to reclusion perpetua shall be
penalized or was not the primary purpose of the offender, unlike in the imposed. If a person is seriously injured
second paragraph of Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. or killed as a result or on the occasion of thecommission of cattle rustling, th
No. 532 provides: e penalty of reclusion perpetua to death shall be imposed. (emphasis
supplied)
SEC. 3. Penalties. -- Any person who commits piracy or highway
robbery/brigandage as herein defined, shall, upon conviction by competent and (c) Section 3 of P.D. No. 534 reads as follows:
court be punished by:
SECTION. 3. Penalties.-- Violations of this Decree and the rules and
a. Piracy. - The penalty of reclusion temporal in its medium and maximum regulations mentioned in paragraph (f) of Section 1 hereof shall be punished
periods shall be imposed. If physical injuries or other crimes are committed as follows:
as a result or on the occasion thereof, the penalty of reclusion perpetua shall
be imposed. If a. by imprisonment from 10 to 12 years, if explosives are
rape, murder or homicide is committed as a result or on the occasion of pira used: Provided, that if the explosion results (1) in physical injury to person,
cy, or when the offenders abandoned the victims without means of saving the penalty shall be imprisonment from 12 to 20 years, or
themselves, or when the seizure is accomplished by firing upon or boarding (2) in the lossof human life, then the penalty shall be imprisonment from 20 y
a vessel, the mandatory penalty of death shall be imposed. ears to life, or death;
b. by imprisonment from 8 to 10 years, if obnoxious or poisonous There is no law which renders the use of an unlicensed firearm as an
substances are aggravating circumstance in homicide or murder. Under an information
used: Provided, that if the use of such substances results (1) in physical charging homicide or murder, the fact that the death weapon was an
injury to any person, the penalty shall be imprisonment from 10 to 12 years, unlicensed firearm cannot be used to increase the penalty for the second
or offense of homicide or murder to death .... The essential point is that the
(2) in the loss of human life, then the penalty shall be imprisonment from 20 unlicensed character or condition of the instrument used in destroying
years to life, or death; x x x (emphasis supplied) human life or committing some other crime, is not included in the inventory
of aggravating circumstances set out in Article 14 of the Revised Penal
The unequivocal intent of the second paragraph of Section 1 of P.D. Code.
No. 1866 is to respect and preserve homicide or murder as a distinct offense
penalized under the Revised Penal Code and to increase the penalty for A law may, of course, be enacted
illegal possession of firearm where such a firearm is used in killing a making the use of an unlicensed firearm as a qualifying circumstance. This
person. Its clear language yields no intention of the lawmaker to repeal or would not be without precedent. By analogy, we can cite Section 17 of B.P.
modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such a Blg. 179, which amended the Dangerous Drugs Act of 1972 (R.A. No.
way that if an unlicensed firearm is used in the commission of homicide or 6425). The said section provides that when an offender commits a crime
murder, either of these crimes, as the case may be, would only serve to under a state of addiction, such a state shall be considered as a qualifying
aggravate the offense of illegal possession of firearm and would not aggravating circumstance in the definition of the crime and the application of
anymore be separately punished. Indeed, the words of the subject provision the penalty under the Revised Penal Code.
are palpably clear to exclude any suggestion that either of the crimes of
homicide and murder, as crimes mala in se under the Revised Penal Code, In short, there is nothing in P.D. No. 1866 that manifests, even vaguely,
a legislative intent to decriminalize homicide or murder if either crime is
is obliterated as such and reduced as a mere aggravating circumstance in
illegal possession of firearm whenever the unlicensed firearm is used in committed with the use of an unlicensed firearm, or to convert the offense of
illegal possession of firearm as a qualifying circumstance if the firearm so
killing a person. The only purpose of the provision is to increase the penalty
prescribed in the first paragraph of Section 1 -- reclusion temporal in its illegally possessed is used in the commission of homicide or murder. To
charge the lawmaker with that intent is to impute an absurdity that would
maximum period to reclusion perpetua -- to death, seemingly because of the
accused's manifest arrogant defiance and contempt of the law in using an defeat the clear intent to preserve the law on homicide and murder and
impose a higher penalty for illegal possession of firearm if such firearm is
unlicensed weapon to kill another, but never, at the same time, to absolve
the accused from any criminal liability for the death of the victim. used in the commission of homicide or murder.
Evidently, the majority did not, as charged in the concurring and
Neither is the second paragraph of Section 1 meant to punish homicide
or murder with death if either crime is committed with the use of an dissenting opinion, create two offenses by dividing a single offense into
two. Neither did it resort to the "unprecedented and invalid act of treating the
unlicensed firearm, i.e., to consider such use merely as
a qualifying circumstance and not as an offense. That could not have been original offense as a single integrated crime and then creating another
offense by using a component crime which is also an element of the former."
the intention of the lawmaker because the term "penalty" in the subject
provision is obviously meant to be the penalty for illegal possession of The majority has always maintained that
the killing of a person with the use of an illegally possessed firearm gives
firearm and not the penalty for homicide or murder. We explicitly stated
in Tac-an:
rise to two separate offenses of (a) homicide or murder under the Revised is not an element or modifying circumstance in the second charge, hence
Penal Code, and (b) illegal possession of firearm in its aggravated form. the evidence therefor is immaterial. But, in both prosecutions, the evidence
on murder is essential, in the first charge because without it the crime is only
What then would be a clear case of judicial legislation is an simple illegal possession, and, in the second charge, because murder is the
interpretation of the second paragraph of Section 1 of P.D. No. 1866 that very subject of the prosecution. Assuming that all the other requirements
would make it define and punish a single integrated offense and give to the under Section 7, Rule 117 are present, can it be doubted that double
words WITH THE USE OF a similar meaning as the words AS A RESULT jeopardy is necessarily present and can be validly raised to bar the second
OR ON THE OCCASION OF, a meaning which is neither born out by the prosecution for murder?
letter of the law nor supported by its intent. Worth noting is the rule in
statutory construction that if a statute is clear, plain, and free from ambiguity,
In fact, we can extrapolate the constitutional and reglementary objection to
it must be given its literal meaning and applied without attempted
the cases of the other composite crimes for which a single penalty is
interpretation,[51] leaving the court no room for any extended ratiocination or
imposed, such as the complex, compound and so-called special complex
rationalization of the law.[52]
crimes. Verily, I cannot conceive of how a person convicted of estafa through
Peregrinations into the field of penology such as on the concept of a falsification under Article 48 can be validly prosecuted anew for the same
single integrated crime or composite crimes, or into the philosophical domain offense or either estafa or falsification; or how the accused convicted of
of integration of the essential elements of one crime to that of another would robbery with homicide under Article 294 can be legally charged again with
then be unnecessary in light of the clear language and indubitable purpose either of the same component crimes of robbery or homicide; or how the
and intent of the second paragraph of Section 1 of P.D. No. 1866.The realm convict who was found guilty of rape with homicide under Article 335 can be
of penology, the determination of what should be criminalized, the definition duly haled before the court again to face charges of either the same rape or
of crimes, and the prescription of penalties are the exclusive prerogatives of homicide. Why, then, do we now sanction a second prosecution for murder
the legislature. As its wisdom may dictate, the legislature may even create in the cases at bar since the very same offense was an indispensable
from a single act or transaction various offenses for different purposes component for the other composite offense of illegal possession of firearm
subject only to the limitations set forth by the Constitution. This Court cannot with murder? Why would the objection of non bis in idim as a bar to a
dictate upon the legislature to respect the orthodox view concerning a single second jeopardy lie in the preceding examples and not apply to the cases
integrated crime or composite crimes. now before us?
The only apparent obstacle to the imposition of cumulative penalties for
We are unable to agree to the proposition. For one, the issue of double
various acts is the rule on double jeopardy. This brings us to the proposition
jeopardy is not raised in this case. For another, the so-called "same-
in the dissenting opinion of Mr. Justice Regalado that the majority view
evidence" test is not a conclusive, much less exclusive, test in double
offends the constitutional bar against double jeopardy under the "same-
jeopardy cases of the first category under the Double Jeopardy Clause
evidence" test enunciated in People vs. Diaz.[53] He then concludes:
which is covered by Section 21, Article III of the Constitution and which
reads as follows:
In the cases now before us, it is difficult to assume that the evidence for the
murder in the first charge of aggravated illegal possession of firearm with
No person shall be twice put in jeopardy of punishment for the same
murder would be different from the evidence to be adduced in the
offense. If an act is punished by a law and an ordinance, conviction or
subsequent charge for murder alone. In the second charge, the illegal
possession is not in issue, except peripherally and inconsequentially since it
acquittal under either shall constitute a bar to another prosecution for the examining the essential elements of each of the two offenses charged, as
same act. such elements are set out in the respective legislative definitions of the
offenses involved.[57]
Note that the first category speaks of the same offense. The second refers
It may be noted that to determine the same offense under the Double
to the same act. This was explicitly distinguished in Yap vs. Lutero,[54] from
Jeopardy Clause of the Fifth Amendment of the Constitution of the United
where People vs. Relova[55] quotes the following:
States of America which reads:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The
[N]or shall any person be subject for the same offense to be twice put in
first sentence of clause 20, Section 1, Article III of the Constitution, ordains
jeopardy of life or limb . . . .
that "no person shall be twice put in jeopardy of punishment for the
same offense." (italics in the original) The second sentence of said clause
the rule applicable is the following: "where the same act or transaction
provides that "if an act is punishable by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for the constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether
same act." Thus, the first sentence prohibits double jeopardy of punishment
for the same offense whereas, the second contemplates double jeopardy of each provision requires proof of an additional fact which the other does
not."[58]
punishment for the same act. Under the first sentence, one may be twice put
in jeopardy of punishment of the same act, provided that he is charged with The Double Jeopardy Clause of the Constitution of the United States of
different offenses, or the offense charged in one case is not included in, or America was brought to the Philippines through the Philippine Bill of 1 July
does not include, the crime charged in the other case. The second sentence 1902, whose Section 5 provided, inter alia:
applies, even if the offenses charged are not the same, owing to the fact that
one constitutes a violation of an ordinance and the other a violation of a [N]o person for the same offense shall be twice put in jeopardy of
statute. If the two charges are based on one and the same act, conviction or punishment . . . .
acquittal under either the law or the ordinance shall bar a prosecution under
the other.Incidentally, such conviction or acquittal is not indispensable to This provision was carried over in identical words in Section 3 of the Jones
sustain the plea of double jeopardy of punishment for the same offense. So Law of 29 August 1916.[59] Then under the 1935 Constitution, the Jones Law
long as jeopardy has been attached under one of the informations charging provision was recast with the addition of a provision referring
said offense, the defense may be availed of in the other case involving the to the same act. Thus, paragraph 20, Section 1, Article III thereof provided
same offense, even if there has been neither conviction nor acquittal in as follows:
either case.
No person shall be twice put in jeopardy of punishment for the same
Elsewise stated, where the offenses charged are penalized either by offense. If an act is punished by a law and an ordinance, conviction or
different sections of the same statute or by different statutes, the important acquittal under either shall constitute a bar to another prosecution for the
inquiry relates to the identity of offensescharged. The constitutional same act.
protection against double jeopardy is available only where an identity is
shown to exist between the earlier and the subsequent offenses charged.
[56] This was adopted verbatim in Section 22, Article IV of the 1973 Constitution
The question of identity or lack of identity of offenses is addressed by
and in Section 21, Article III of the present Constitution.
This additional-element test in Lutero and Relova and beyond reasonable doubt of the crime of murder in Criminal Case No. 8178
in Blockburger, Gore, and Missouri would safely bring the second paragraph and of illegal possession of firearm in its aggravated form in Criminal Case
of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended
principle. For, undeniably, the elements of illegal possession of firearm in its by the Order of 29 October 1993, is sustained; however, the penalty
aggravated form are different from the elements of homicide or murder, let imposed in the second case is changed to Reclusion Perpetua from the
alone the fact that these crimes are defined and penalized under different indeterminate penalty ranging from Seventeen (17) years, Four (4) months,
laws and the former is malum prohibitum, while both the latter are mala in and One (1) day, as minimum, to Twenty (20) years and One (1) day, as
se. Hence, the fear that the majority's construction of the subject provision maximum.
would violate the constitutional bar against double jeopardy is unfounded.
Costs de oficio.
The penalty which the trial court imposed in Criminal Case No. 8179
for illegal possession of firearm in its aggravated form must, however, be SO ORDERED.
modified. The penalty prescribed by P.D. No. 1866 is death. Since Section Padilla, Bellosillo, Melo, Francisco, Panganiban, and Torres, Jr.,
19(1), Article III of the Constitution prohibits the imposition of the death JJ., concur.
penalty, the penalty next lower in degree, reclusion perpetual must be Narvasa, C.J., Romero, Puno, Vitug, Kapunan, Mendoza, JJ., joined J.
imposed. Regalado in his concurring and dissenting opinion.
Regalado, J., see concurring and dissenting opinion.
WHEREFORE, the instant appeal is DISMISSED, and the challenged
decision of 30 September 1993 of Branch 1 of the Regional Trial Court of Hermosisima, J., see concurring opinion.
Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty

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