G.R. Nos.

115008-09 July 24, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
DANIEL QUIJADA Y CIRCULADO, accused-appellant.

DAVIDE, JR., J.:p

Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of Branch 1 of the Regional
Trial Court (RTC) of Bohol convicting him of the two offenses separately charged in two informations, viz.,
murder under Article 248 of the Revised Penal Code and illegal possession of firearm in its aggravated from
under P.D. No. 1866, and imposing upon him the penalty of reclusion perpetua for the first crime and an
indeterminate penalty ranging from seventeen years, four months, and one day, as minimum, to twenty years
and one day, as maximum, for the second crime.1

The appeal was originally assigned to the Third Division of the Court but was later referred to the Court en
banc in view of the problematical issue of whether to sustain the trial court's judgment in conformity with the
doctrine laid down in People vs. Tac-an,  People vs. Tiozon,  People vs. Caling,  People vs. Jumamoy,  People
2 3 4 5

vs. Deunida,  People vs. Tiongco,  People vs. Fernandez,  and People vs. Somooc  or to modify the judgment
6 7 8 9

and convict the appellant only of illegal possession of firearm in its aggravated form pursuant to People
vs. Barros,   which this Court (Second Division) decided on 27 June 1995.
10

The informations read as follows:

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 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 opportunity to defend himself, and with evident
premeditation, the accused 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 and
shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting 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.

Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with aggravating
circumstance of nighttime being purposely sought for or taken advantage of by the accused to
facilitate the commission of the crime. 
11

CRIMINAL CASE NO. 8179

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 Honorable Court, the abovenamed accused, did
then and there willfully, unlawfully and feloniously keep, carry and have in his possession,
custody and control a firearm (hand gun) with ammunition, without first obtaining the necessary
permit or license to possess the said firearm from competent authorities which firearm was
carried by the said accused outside of his residence and was used by him in committing the
crime of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the
Republic of the Philippines.

Acts committed contrary to the provisions of PD No. 1866.  12

Having arisen from the same incident, the cases were consolidated, and joint hearings were had. The witnesses
presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO
Gondalino Inte, Dr. Gregg Julius Sodusta, Rosita Iroy, and Teodula Matalinis. The defense presented as
witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself.

1
The evidence for the prosecution is summarized by the Office of the Solicitor General in the Brief for the
Appellee as follows:

On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay Tinago,
Dauis, Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and appellant Daniel
Quijada as the latter was constantly annoying and pestering the former's sister Rosita Iroy (TSN,
Crim. Cases 8178 & 1879, June 8, 1993, pp. 32-35; August 5, 1993, pp. 14-15).

In the evening of 30 December 1992, another benefit dance/disco was held in the same place.
This benefit dance was attended by Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado,
Largo Iroy and Diosdado Iroy.

While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado Iroy,
Eugene Nesnea and Largo Iroy, who were then sitting at the plaza (the area where they
positioned themselves was duly lighted and was approximately four mete's from the dancing
hall), decided to just watch the activities in the dance hall directly from the plaza.

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 facing the direction of Diosdado Iroy,
Rosita Iroy saw appellant surreptitiously approach her brother Diosdado Iroy from behind.
Suddenly, appellant fired his revolver at Diosdado Iroy, hitting the latter at the back portion of the
head. This caused Rosita Iroy to spontaneously shout that appellant shot her brother; while
appellant, after shooting Diosdado Iroy, ran towards the cornfield.

Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital but
the injury sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her
parents the unfortunate incident (TSN, Crim. Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22,
inclusive of the preceding paragraphs).

At around midnight, the incident was reported to then Acting chief of Police Felipe Nigparanon by
Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police officer made entries in the
police blotter regarding the shooting and correspondingly, ordered his men to pick up the
appellant. But they were unable to locate appellant on that occasion (TSN, Crim Case Nos. 8178
& 8179, June 9, 1993, pp. 2-6).

In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada
went to the police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito
Nistal and Rosita Iroy as the person who shot Diosdado Iroy. These facts were entered in the
police blotter as Entry No. 1151 (TSN, Crim Case Nos. 8178 & 8179, ibid. p. 14, June 14, 1993,
pp. 4-6).
13

The slug was embedded at the midbrain.   Diosdado Iroy died of

14

Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to massive intracranial

hemorrhage, secondary to gunshot wound, 1 cm. left occipital areas, transecting cerebellum up
to midbrain. 15

The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per certifications issued on 26
April 1993, the appellant was not a duly licensed firearm holder as verified from a consolidated list of licensed
firearm holders in the province   and was not authorized to carry a firearm outside his residence.  7
16 1

The appellant interposed the defense of alibi, which the trial court rejected because he was positively identified
by prosecution witness Rosita Iroy. It summarized his testimony in this wise:

Daniel Quijada y Circulado, the accused in the instant cases, declared 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 Bonao in a tricycle No. 250 to solicit passengers. They transported
passengers until 10:30 o'clock in the evening. They then proceeded to the Tagbilaran wharf
waiting for the passenger boat Trans Asia Taiwan. Before the arrival of Trans Asia Taiwan they
2
 had a talk with Saturnino Maglopay. They were able to pick up two passengers for Graham
Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of MV
Cebu City that docked at 12:10 past midnight. They had a talk with Saturnino Maglopay who was
waiting for his auntie scheduled to arrive abroad MV Cebu City. They were not able to pick up
passengers which, as a consequence, they went home. They had on their way home passengers
for the Agors Public Market. They arrived at the house of Julian Bonao at Bil-isan, Pangalao,
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 9:00 o'clock in the morning. 18

The trial court gave full faith and credit to the version of the prosecution and found the appellant guilty beyond
reasonable doubt of the crimes charged and sentenced him accordingly. It appreciated the presence of the
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 dispositive portion of the decision dated 30 September 1993 reads as
follows:

PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds 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 an imprisonment of Reclusion Perpetua, with the accessories of
the law and to pay the cost.

In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime of
Qualified Illegal Possession of Firearm and Ammunition punished under Sec. 1 of RA No. 1866
as amended, and hereby sentences him to suffer an indeterminate sentence from Seventeen
(17) years Four (4) 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.

The slug or bullet which was extracted from the brain of the back portion of the head of the victim
Diosdado Iroy is hereby ordered forfeited in favor of the government.

It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is
entitled to the full time he has undergone preventive imprisonment to be deducted from the term
of sentence if he has executed a waiver otherwise he will only be entitled to 4/5 of the time he
has undergone preventive imprisonment to be deducted from his term of sentence if he has not
executed a waiver.  19

On 29 October 1993, after discovering that it had inadvertently omitted in the decision an award of civil indemnity
and other damages in Criminal 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 death of their son and P10,000.00 for
funeral expenses.   The order was to form an integral part of the decision.
20

The decision was promulgated on 29 October 1993. 21

The appellant forthwith interposed the present appeal, and in his Brief, he contends that the trial court erred
I
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE TESTIMONY
OF PROSECUTION WITNESSES ROSITA IROY AND FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN NISTAL
AND ALFRED ARANSADO, AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE
ACCUSED-APPELLANT PARTICULARLY THE RELATIVE POSITIONS OF DIOSDADO IROY,
ROSITA IROY, EDWIN NISTAL, AND ALFRED ARANZADO.
III
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND SPO4
FELIPE NIGPARANON HAD MOTIVES IN FALSELY TESTIFYING AGAINST ACCUSED-
APPELLANT.  22

The appellant then submits that the issue in this case boils down to the 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
and SPO4 Felipe Nigparanon. He claims that the former had a motive "to put him in a bad light" and calls our

3
attention to her direct testimony that her 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 have seen the person who
shot Diosdado considering their respective positions, particularly Rosita who, according to defense witnesses
Nistal and 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 of evidence when the prosecution did not present as
witnesses Diosdado's companions who were allegedly seated with Diosdado when he was shot.

As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witnesses is a neighbor of the
Iroys, and when he testified, a case for arbitrary detention had already been filed against him by the appellant.
The appellant further claims of alleged omissions and unexplained entries in the police blotter.

Finally, the appellant wants us to favorably consider his defense of alibi 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
voluntarily going to the police station after having been informed that he, among many others, was summoned
by the police is hardly the actuation of the perpetrator of the killing of Diosdado Iroy — specially so if Rosita
Iroy's claim is to be believed that moments after the shooting she shouted that Daniel Quijada shot Diosdado
Iroy.

In its Appellee's Brief, the People refutes every argument raised by the appellant and recommends that we
affirm in toto the challenged decision.

After a careful scrutiny of the records and evaluation of the evidence adduced by the parties, we find this appeal
to be absolutely without merit.

The imputation of ill-motive on the part of Rosita Iroy and the basis 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 then
logical and consistent with human experience that it would be the appellant who would have forthwith
entertained a grudge, if not hatred, against Diosdado. No convicting evidence was shown that Rosita had any
reason to falsely implicate the appellant in the death of her brother Diosdado.

The claim that Rosita could not have seen who shot her brother Diosdado because, as testified to by defense
witnesses Nistal and Aranzado, she was inside the dancing hall and rushed to her brother only after the latter
was shot is equally baseless. The following testimony of Rosita shows beyond cavil that she saw the assailant:

Q You said that you were initially dancing inside the dancing place and you went
out, about what time did you get out?
A 11:00 o'clock.
Q And you were standing about two (2) meters from Diosdado Iroy until 11:30
when the incident happened?
A Yes I was standing.
Q And where did you face, you were facing Diosdado Iroy or the dancing area?
A I was intending to go near my brother. I was approaching and getting near
going to my brother Diosdado Iroy and while in the process I saw Daniel Quijada
shot my brother Diosdado Iroy. 23
x x x           x x x          x x x
Q And in your estimate, how far was your brother Diosdado Iroy while he was
sitting at the plaza to the dancing place?
A More or less four (4) meters distance.
COURT:
From the dancing hall?
A Yes, your honor.
Q And in your observation, was the place where Diosdado Iroy was sitting lighted
or illuminated?
A Yes, sir.
Q What kind of light illuminated the place?
A I do not know what kind of light but it was lighted.
Q Was it an electric light?
A It is electric light coming from a bulb.
Q Where is that electric bulb that illuminated the place located?
A It was placed at the gate of the dancing place and the light from the house.
4
 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?
A Yes, sir.
Q What material was used to enclose the dancing place?
A Bamboo.
Q And how far was the bulb which was placed near the entrance of the dancing
place to the place where Diosdado Iroy was sitting?
A Five (5) meters.
Q You mentioned also that there was a light coming from the house, now whose
house was that?
A The house of spouses Fe and Berto, I do not know the family name.
Q Was the light coming from the house of spouses Fe and Berto an electric light?
A Yes, sir.
Q And in your estimate, how far was the source of light of the house of Fe and
Berto to the place where Diosdado Iroy was sitting?
A About six (6) meters distance.24

x x x           x x x          x x x
Q What was the color of the electric bulb in the gate of the dancing place?
A The white bulb.25

The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:

The factual findings of the Court in the instant case is anchored principally in ". . . observing the
attitude and deportment of witnesses while listening to them speak" (People vs. Magaluna, 205,
SCRA 266).

thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the
declarations of Nistal and Aranzado failed to convince the trial court that they were telling the truth.
Settled is the rule that 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 advantage of observing the witnesses
through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted
assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the
forthright tone of a ready reply;   or the furtive glance, the blush of conscious shame, the hesitation, the
26

sincere of the flippant or sneering tone, the heat, the calmness, the yarn, the sigh, the candor or lack of
it, the scant or full realization of the solemnity of an oath, the carriage and mien.  7 The appellant has
2

miserably failed to convince us that we must depart from this rule.

Neither are we persuaded by the claimed suppression of evidence occasioned by the non-presentation as
prosecution witnesses any of the companions of Diosdado who were seated with him when he was shot. In the
first place, the said companions could not have seen from their back the person who suddenly shot Diosdado. In
the second place, the testimony of the companions would, at the most, only corroborate that of Rosita Iroy.
Besides, there is no suggestion at all that the said companions were not available to the appellant. It is settled
that the presumption in Section 3 (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 SPO4 Nigparanon simply because he is a neighbor of the Iroy's
remains purely speculative, as no evidence was offered to establish that such a relationship affected SPO4
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the presumption of regularity in the
performance of his official duty.   As to the alleged omissions and unexplained entries in the police blotter, the
29

same were sufficiently clarified by SPO4 Nigparanon.

The defense of alibi interposed by the appellant deserves scant consideration. He was positively identified by a
credible witness. It is a fundamental judicial dictum that the defense of alibi cannot prevail over the positive
identification of the accused.   Besides, for that defense to prosper it is not enough to prove that the accused
30

was somewhere else when the crime was committed; he must also demonstrate that it was physically impossible
for him to have been at the scene of the crime at the time of its commission.   As testified to by defense witness
31

Julian Bonao, the Tagbilaran wharf, where the appellant said he was, is only about eight to nine kilometers away
from the crime scene and it would take only about thirty minutes to traverse the distance with the use of a

5
tricycle.   It was, therefore, not physically impossible for the appellant to have been at the scene of the crime at
32

the time of its commission.

Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have voluntarily proceeded
to the police station. This argument is plain sophistry. The law does not find unusual the voluntary surrender of
offenders; it even considers such act as a mitigating circumstance.   Moreover, non-flight is not conclusive proof
33

of innocence. 34

The evidence for the prosecution further established with moral certainty that the appellant had no license to
possess or carry a firearm. The firearm then that he used in shooting Diosdado Iroy was unlicensed. He,
therefore, committed the crime of aggravated illegal possession of firearm under the second paragraph of
Section 1 of P.D. No. 1866, which reads:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms,

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition — The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose or possess any firearm, part of firearm, ammunition or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed.

In light of the doctrine enunciated in People vs. Tac-an,   and reiterated in People vs. Tiozon,   People
35 36

vs. Caling,   7 People vs. Jumamoy,   People vs. Deunida,   People vs. Tiongco,   People

3 38 39 40

vs. Fernandez,   and People vs. Somooc,   that one who kills another with the use of an unlicensed firearm
41 42

commits two separate offenses of (1) either homicide or murder under the Revised Penal Code, and (2)
aggravated illegal possession of firearm under the second paragraph of Section 1 of P.D. No. 1866, we sustain
the decision of the trial court finding the appellant guilty of two separate offenses of murder in Criminal Case No.
8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179.

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 accused is prosecuted for homicide or murder and for aggravated
illegal possession of firearm, they at the same time laid down the rule that these are separate offenses, with the
first punished under the Revised Penal Code and the second under a special law; hence, the constitutional bar
against double jeopardy will not apply. We observed in Tac-an:

It is elementary that the constitutional right against double jeopardy protects one against a
second or later prosecution for the same offense, and that when the subsequent information
charges another and different offense, 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 an unlicensed firearm
penalized under a special statute, while the offense charged in Criminal Case No. 4012 was that
of murder punished under the Revised Penal Code. It would appear self-evident that these two
(2) offenses in themselves are quite different one from the other, such that in principle, the
subsequent filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in
a prohibited second jeopardy.

And we stressed that the use of the unlicensed firearm cannot serve to 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, shall increase the penalty for illegal possession of firearm.

In Tiozon, we stated:

It may be loosely said that homicide or murder qualifies the offense 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 in the offense; otherwise, an anomalous absurdity results
whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by
a statutory offense, which is just a malum prohibitum. The rationale for the qualification, as

6
 implied from the exordium of the decree, is to effectively 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 possessed and manufactured firearms, . . . " In fine then, the killing of a person with
the use of an unlicensed firearm may give rise to separate 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 Code. The accused cannot plead one as a bar to the other; or,
stated otherwise, the rule against double jeopardy cannot be invoked because the first is
punished by a special law while the second, homicide or murder, is punished by the Revised
Penal Code.

In People vs. Doriguez [24 SCRA 163, 171], We held:

It is a cardinal rule that the protection against double jeopardy may be invoked
only for the same offense or identical offenses. A simple act may offend against
two (or more entirely distinct and unrelated provisions of law, and if one provision
requires proof of an additional act or element which the other does not, an
acquittal or conviction or a dismissal of the information under one does not bar
prosecution under the other. Phrased elsewise, where two different laws (or
articles of the same code) defines two crimes, 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 some important act which is not an essential
element of the other.

In People vs. Bacolod, [89 Phil. 621], from the act of firing a shot from a sub-machine gun which
caused public panic among the people present and physical injuries to one, informations of
physical injuries through reckless 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 the
ground of double jeopardy. We ruled:

The protection against double jeopardy is only for the same offense. A simple act
may be an offense against two different provisions of law and if one provision
requires proof of an additional fact which the other does not, an acquittal or
conviction under one does not bar prosecution under the other.

Since the informations were for separate offense[s] — the first against a person and the second
against public peace and order — one cannot be pleaded as a bar to the other under the rule or
double jeopardy.

In Caling, we explicitly opined that a person charged with aggravated illegal possession of firearm under the
second paragraph of Section 1 of P.D. No. 1866 can also be separately charged with and convicted of homicide
or murder under the Revised Penal Code and punished accordingly. Thus:

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 Firearm Used in Homicide as provided for and
defined under the 2nd paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling
guilty thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended," reads as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of

Firearms [or] Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in
its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm,
part of firearm, ammunition or machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the

penalty of death shall be imposed.

7
 What is penalized in the first paragraph, insofar as material to the present case is the sole,
simple act of a person who shall, among others, "unlawfully possess any firearm . . (or)
ammunition . . ." Obviously, possession of any firearm is unlawful if the necessary permit and/or
license therefor is not first obtained. To that act is attached the penalty of reclusion temporal,
maximum, to reclusion perpetua. Now, if "with the use of (such) an unlicensed firearm, a
"homicide or murder is committed," the crime is aggravated and is more heavily punished, with
the capital punishment.

The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm
without license. The crime may be denominated simple illegal possession, to distinguish it from
its aggravated form. It is aggravated if the unlicensed firearm is used in the commission of a
homicide or murder under the Revised Penal Code. But the homicide or murder is not absorbed
in the crime of possession of an unlicensed firearm; neither is the latter absorbed in the
former. There are two distinct crimes that are here spoken of . One is unlawful possession of a
firearm, which may be either simple or aggravated, defined and punished respectively by the first
and second paragraphs of Section 1 of PD 1866. The other is homicide or murder, committed
with the use of an unlicensed firearm. The mere possession of a firearm without legal authority
consummates the crime under P.D. 1866, and the liability for illegal possession is made heavier
by the firearm's use in a killing. The killing, whether homicide or murder, is obviously distinct from
the act of possession, and is separately punished and defined under the Revised Penal Code.
(emphasis supplied)

In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills another with an
unlicensed firearm can be prosecuted and punished for the two separate offenses of violation of the second
paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under the Revised Penal Code. Thus:

Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866
penalizes, inter alia, the unlawful possession of firearms or ammunition with reclusion temporal in
its maximum period to reclusion perpetua. However, under the second paragraph thereof, the
penalty is increased to death if homicide or murder is committed with the use of an unlicensed
firearm. It may thus be loosely said that homicide or murder qualifies the offense because both
are circumstances which increase the penalty. It does not, however, follow that the homicide or
murder is absorbed in the offense. If these were to be so, an anomalous absurdity would result
whereby a more serious crime defined and penalized under the Revised Penal Code will be
absorbed by a statutory offense, one which is merely malum prohibitum. Hence, the killing of a
person with the use of an unlicensed firearm may give rise to separate prosecutions for (a) the
violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 248 (Murder) or
Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one to bar the
other; stated otherwise, the rule against double jeopardy cannot be invoked as the first is
punished by a special law while the second — Murder or Homicide — is punished by the Revised
Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991); People vs. Doriguez, 24
SCRA 163 (1968)]. Considering, however, that the imposition of the death penalty is prohibited
by the Constitution, the proper imposable penalty would be the penalty next lower in degree,
or reclusion perpetua. (emphasis supplied)

In Deunida, in discussing the propriety of the Government's action in withdrawing an information for murder and
pursuing only the information for "Qualified Illegal Possession of Firearm," this Court categorically declared:

At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing
the information for murder, the offense defined in the second paragraph of Section 1 of P.D. No.
1866 does not absorb the crime of homicide or murder under the Revised Penal Code and,
therefore, does 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, which the investigating
prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions
in People vs. Tac-an, People vs. Tiozon, and People vs. Caling.

In Somooc, we once more ruled:

The offense charged by the Information is clear enough from the terms of that document,
although both the Information and the decision of the trial court used the term "Illegal Possession
8
 of Firearm with Homicide," a phrase which has sometimes been supposed to connote a "complex
crime" as used in the Revised Penal Code. Such nomenclature is, however, as we have 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 penalized in P.D. No. 1866 is the fact of possession
of a firearm without a license or authority for such possession. This offense is aggravated and
the imposable penalty upgraded if the unlicensed firearm is shown to have been used in the
commission of homicide or murder, offenses penalized under the Revised Penal Code. The
killing of a human being, whether characterized as homicide or murder, is patently distinct from
the act of possession of an unlicensed firearm and is separately punished under the provision of
the Revised Penal Code.

The foregoing doctrine suffered a setback when in our decision of 27 June 1995 in People vs. Barros,   we set
43

aside that portion of the appealed decision convicting the appellant of the offense of murder and affirmed that
portion convicting him of illegal possession of firearm in its aggravated form. We therein made the following
statement:

[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession
of firearm in its aggravated form and of murder], but only that of illegal possession of firearm in its
aggravated form, in light of the legal principles and propositions set forth in the separate opinion
of Mr. Justice Florenz D. Regalado, to which the Members of the Division, the ponente included,
subscribe.

The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to therein read as
follows:

This premise accordingly brings up the second query as to whether or not the crime should
properly be the aggravated illegal possession of an 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 for the graver offense of aggravated illegal possession of the firearm punished by death
under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point
that the writer dissents from the holding which would impose a separate penalty for the homicide
in addition to that for the illegal possession of the firearm used to commit the former.

If the possession of the unlicensed firearm is the only offense imputable to the accused, the
Court has correctly held that to be the simple possession punished with reclusion temporal in its
maximum period to reclusion perpetua in the first paragraph of Section 1. Where,
complementarily, the unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the graver offense of
aggravated illegal possession. In other words, the homicide or murder constitutes the essential
element for integrating into existence the capital offense of the aggravated form of illegal
possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very
same offenses of homicide or murder as integral elements of and to create the said capital
offense, and then treat the former all over again as independent offenses to be separately
punished further, with penalties immediately following the death penalty to boot.

The situation contemplated in the second query is, from the punitive standpoint, virtually of the
nature of the so-called, "special complex crimes," which should more appropriately be called
composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the
same legal basis as nor subject to the rules on complex crimes in Article 48, since they 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 another. However, just like the regular complex
crimes and the present case of aggravated illegal possession of firearms, only a single penalty is
imposed for each of such composite crimes although composed of two or more offenses.

On the other hand, even if two felonies would otherwise have been covered by the conceptual
definition of a complex crime under Article 48, but the Code imposes a single definite penalty
therefor it cannot also be punished as a complex crime, much less as separate offense, but with
only the single 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 offense will not be punished
as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under
9
the second paragraph of Article 265. The serious slander by deed is integrated into and
produces a graver offense, and the former is no longer separately punished.

What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion
on complex and composite crimes, is that when an offense becomes a component of another,
the resultant crime being correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority would want to do with
the homicide involved in the case at bar.

With the foregoing answers to the second question, the third inquiry is more of a question of
classification for purposes of the other provisions of the Code. The theory in Tac-an that the
principal offense is the aggravated form of illegal possession of firearm and the killing shall
merely be included in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually source from the very provisions of
Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the "various
laws and presidential decrees to harmonize their provision" which "must be updated and revised
in order to more effectively deter violators" of said laws.

This would be akin to the legislative intendment underlaying the provisions of the Anti-
Carnapping Act of 1972, wherein the principal crime to be charged is still carnapping, although
the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is
killed. The same 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 Anti-Cattle Rustling Law
of 1974, wherein the principal crimes still are piracy, highway robbery and cattle rustling. Also, in
the matter of destructive arson, the principal offense when, inter alia, death results as a
consequences of the commission of any of the acts punished under said article of the Code.

In the present case, the academic value of specifying whether it is a case of illegal possession of
firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal
possession and use of an unlicensed firearm, would lie in the possible application of the
provision on 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 indivisible penalty of death,
in which case the provision on recidivism would not apply. If, however, the illegal possession is
not established but either homicide or murder is proved, then the matter of recidivism may have
some significance in the sense that, for purposes thereof, the accused was convicted of a crime
against persons and he becomes a recidivist upon conviction of another crime under the same
title of the Code.

Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed
when the unlawful killing and the illegal possession are charged in separate informations, from
what has been said the appropriate course of action would be to consolidate the cases and
render a joint decision thereon, imposing a single penalty for aggravated illegal possession of
firearm if such possession and the unlawful taking of life shall have been proved, or for only the
proven offense which may be either simple 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 different courts or
branches of the same court.

Indeed, the practice of charging the offense of illegal possession separately from the homicide or
murder could be susceptible of abuse since it entails undue concentration of prosecutorial
powers and discretion. Prefatorily, the fact that the killing was committed with a firearm will
necessarily be known to the police or prosecutorial agencies, the only probable problem being
the determination and obtention of evidence to show that the firearm is unlicensed.

Now, if a separate information for homicide or murder is filed without alleging therein that the
same was committed by means of an unlicensed firearm, the case would not fall under
Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging
the lack of a license therefor as where that fact has not yet been verified, the mere use of a
firearm by itself, even if proved in that case, would not affect the accused either since it is not an
aggravating or qualifying circumstance.
10
 Conversely, if the information is only for illegal possession, with the prosecution intending to file
thereafter the charge for homicide or murder but the same is inexplicably delayed or is not
consolidated with the information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other hand, the separate and
subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree
No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be
for the unlawful killing and further subject to such modifying circumstances as may be proved.

In any event, the foregoing contingencies would run counter to the proposition that the real
offense committed by the accused, and for which sole offense he should be punished, is the
aggravated form of illegal possession of a firearm. Further, it is the writer's position that the
possible problems projected herein may be minimized or obviated if both offenses involved are
charged in only one information or that the trial thereof, if separately charged, be invariably
consolidated for joint decision. Conjointly, 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
thereof by segregated parts in piecemeal fashion.

If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178 must have to be set
aside. He should only suffer the penalty for the aggravated illegal possession of firearm in Criminal Case No.
8179.

The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting doctrines applicable to
prosecutions for murder or homicide and for aggravated illegal possession of firearm in instance where an
unlicensed firearm is used in the killing of a person. After a lengthy deliberation thereon, the Court en
banc arrived at the conclusion that the rule laid down in Tac-an, reiterated
in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is the better rule, for it applies the laws
concerned according to their letter and spirit, thereby steering this Court away from a dangerous course which
could have irretrievably led it to an inexcusable breach of the doctrine of separation of powers through judicial
legislation. That rule upholds and enhances the lawmaker's intent or purpose in aggravating the crime of illegal
possession of firearm when an unlicensed firearm is used in the commission of murder or homicide. Contrary to
the view of our esteemed brother, Mr. Justice Florenz D. Regalado, in his Concurring and Dissenting Opinion in
the case under consideration, Tac-an did not enunciated an "unfortunate doctrine" or a "speciously camouflaged
theory" which "constitutes an affront on doctrinal concepts of penal law and assails even the ordinary notions of
common sense."

If Tac-an did in fact enunciated such an "unfortunate doctrine," which this Court has reiterated in a convincing
number of cases and for a convincing number of years, so must the same verdict be made in our decision
in People vs. De Gracia,   which was promulgated on 6 July 1994. In the latter case, we held that unlawful
44

possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecution for 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 that situation and the case where an unlicensed firearm is used in
homicide or murder would have no basis at all. In De Gracia, this Court, speaking through Mr. Justice Florenz D.
Regalado, made the following authoritative pronouncements:

III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989
up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not
appellant's possession of the firearms, explosives and ammunition seized and recovered from
him was for the purpose and in furtherance of rebellion.

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 Penal Code which states that "any person
merely participating or executing the command of others in a rebellion shall suffer the penalty
of prision mayor in its minimum period." The court below held that appellant De Gracia, who had
been servicing the personal needs of Col. Matillano (whose active armed opposition against the
Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding
the explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the
lower court.

The above provision of the law was, however, erroneously and improperly used by the court
below as a basis in determining the degree of liability of appellant and the penalty to be imposed
11
 on him. It must be made clear that appellant is charged with the qualified offense of illegal
possession of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in
law, is distinct from the crime of rebellion punished under Article 134 and 135 of the Revised
Penal Code. There are two separate statutes penalizing different offenses with discrete
penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide,
arson, or other offenses, such as illegal possession of firearms, that might conceivably be
committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a
specific offense, the crime of illegal possession of firearms committed in the course or as part of
a rebellion.

Missing p. 26

conceptual changes over time," as the concurring and dissenting opinion charges.

The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it has become
hostage to the "inertia of time [which] has always been the obstacle to the virtues of change," as the concurring
and dissenting opinion finds it to be, but rather because it honestly believes 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 ordinary notions of common sense," the blame must not be laid at the doorsteps of this Court, but on
the lawmaker's. All that the Court did in Tac-an was to apply the law, for there was nothing in that case that
warranted an interpretation or the application of the niceties of legal hermeneutics. It did not forget that its duty is
a merely to apply the law in such a way that shall not usurp legislative powers by judicial legislation and that in
the course of such application or construction it should not make or supervise legislation, or under the guise of
interpretation modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is
repugnant to its terms. 45

Murder and homicide are defined and penalized by the Revised Penal Code   as crimes against persons. They
46

are mala in se because malice or dolo is a necessary ingredient therefor.   7 On the other hand, the offense of
4

illegal possession of firearm is defined and punished by a special penal law,   P.D. No. 1866. It is a malum
48

prohibitum   which the lawmaker, then President Ferdinand E. Marcos, in the exercise of his martial law powers,
49

so condemned not only because of its nature but also because of the larger policy consideration of containing or
reducing, if not eliminating, the upsurge of crimes vitally affecting public order and safety due to the proliferation
of 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 is
conceded wisdom in punishing illegal possession of firearm without taking into account the criminal intent of the
possessor. All that is needed is intent to perpetrate the act prohibited by law, coupled, of course, by animus
possidendi. However, it must be clearly understood that this animus possidendi is without regard to any other
criminal
or felonious intent which an accused may have harbored in possessing the firearm.  50

A long discourse then on the concepts of malum in se and malum prohibitum and their distinctions is an exercise
in futility.

We disagree for lack of basis the following statements of Mr. Justice Regalado in his Concurring and Dissenting
Opinion, to wit:

The second paragraph of the aforestated Section 1 expressly and unequivocally provides for
such illegal possession and resultant killing as a single integrated offense which is punished as
such. The majority not only created two offenses by dividing a single offense into two but, worse,
it resorted to the unprecedented and invalid act of treating the 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.

It would already have been a clear case of judicial legislation if the illegal possession with murder
punished with a single penalty have been divided into two separate offenses of illegal possession
and murder with distinct penalties. It is consequently a compounded infringement of legislative
powers for this Court to now, as it has done, treat that single offense as specifically described by
the law and impose reclusion perpetua therefor (since the death penalty for that offense is still
proscribed), but then proceed further by plucking out therefrom the crime of murder in order to be
able to impose the death sentence. For indeed, on this score, it is beyond cavil that in the
12
 aggravated form of illegal possession, the consequential murder (or homicide) is an integrated
element or integral component since without the accompanying death, the crime would merely be
simple illegal possession of a firearm under the first paragraph of Section 1.

The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a conclusion that it intended
to treat "illegal possession and resultant killing" (emphasis supplied) "as a single and integrated offense" of
illegal possession with homicide or murder. It does not use the clause as a result or on the occasion of to evince
an intention to create a single integrated crime. By its unequivocal and explicit language, which we quote to be
clearly understood:

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed. (emphasis supplied)

the crime of either homicide or murder is committed NOT AS A 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 commission of homicide or
murder as a result or on the occasion of the violation of Section 1, and (b) the commission of homicide or
murder with the use of an unlicensed firearm. In the first, homicide or murder is not the original purpose
or primary objective of the offender, but a secondary event or circumstance either resulting from or
perpetrated on the occasion of the commission of that originally or primarily intended. In the second, the
killing, which requires a mens rea is the primary purpose, and to carry that out effectively the
offender uses an unlicensed firearm.

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 Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling Law of
1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer Penalties Therefor), the answer is
resoundingly in the negative. In those cases, the lawmaker clearly intended a single integrated offense or a
special complex offense because the death therein occurs as a result or on the occasion of the commission of
the offenses therein penalized or was not the primary purpose of the offender, unlike in the second paragraph of
Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:

Sec. 3. Penalties. — Any person who commits piracy or highway robbery/brigandage as herein
defined, shall, upon conviction by competent court be punished by:

a. Piracy. — The penalty of reclusion temporal in its medium and maximum periods shall be
imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof,
the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as
a result or on the occasion of piracy, or when the offenders abandoned the victims without
means of saving themselves, or when the seizure is accomplished by firing upon or boarding a
vessel, the mandatory penalty of death shall be imposed.

b. Highway Robbery/Brigandage. — The penalty of reclusion temporal in its minimum period

shall be imposed. If physical injuries or other crimes are committed during or on the occasion of
the commission of robbery or brigandage, the penalty of reclusion temporal in its medium and
maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide,
or rape is committed as a result or on the occasion thereof, the penalty of death shall be
imposed. (emphasis supplied)

(b) Section 8 of P.D. No. 533 reads in part as follows:

Sec. 8. Penal provisions. — Any person convicted of cattle rustling as herein defined shall,
irrespective of the value of the large cattle involved, be punished by prision mayor in its
maximum period to reclusion temporal in its medium period if the offense is committed without
violence against or intimidation of persons or force upon things. If the offense is committed with
violence against or intimidation of persons or force upon things, the penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously
injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of
reclusion perpetua to death shall be imposed. (emphasis supplied)

13
 and (c) Section 3 of P.D. No. 534 reads as follows:

Sec. 3. Penalties. — Violations of this Decree and the rules and regulations mentioned in
paragraph (f) of Section 1 hereof shall be punished as follows:

a. by imprisonment from 10 to 12 years, if explosives are used: Provided, that if the explosion

results (1) in physical injury to person, the penalty shall be imprisonment from 12 to 20 years, or
(2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or
death;

b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are used: Provided,

that if the use of such substances results (1) in physical injury to any person, the penalty shall be
imprisonment from 10 to 12 years, or (2) in the loss of human life, then the penalty shall be
imprisonment from 20 years to life, or death; . . . (emphasis supplied)

The unequivocal intent of the second paragraph of Section 1 of P.D. 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 illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no
intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in
such a way that if an unlicensed firearm is used in the commission of homicide or murder, either of these crimes,
as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would not
anymore be separately punished. Indeed, the words of the subject provision 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, is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of firearm
whenever the unlicensed firearm is used in 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 maximum period to reclusion
perpetua — to death, seemingly because of the accused's manifest arrogant defiance and contempt of the law in
using an 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.

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 unlicensed firearm, i.e., to consider such use merely as a qualifying
circumstance and not as an offense. That could not have been the intention of the lawmaker because the term
"penalty" in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not
the penalty for homicide or murder. We explicitly stated in Tac-an:

There is no law which renders the use of an unlicensed firearm as an aggravating circumstance
in homicide or murder. Under an information charging homicide or murder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the penalty for the second
offense of homicide or murder to death. . . . The essential point is that the unlicensed character
or condition of the instrument used in destroying 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 Code.

A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance.
This would not be without precedent. By analogy, we can cite Section 17 of B.P. Blg. 179, which
amended the Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides that when an
offender commits a crime under a state of addiction, such a state shall be considered as a qualifying
aggravating circumstance in the definition of the crime and the application of the penalty 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 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 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
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 used in the commission of homicide or murder.

14
Evidently, the majority did not, as charged in the concurring and 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
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 majority has always maintained that the killing of a person with the
use of an illegally possessed firearm gives rise to two separate offenses of (a) homicide or murder under the
Revised Penal Code, and (b) illegal possession of firearm in its aggravated form.

What then would be a clear case of judicial legislation is an interpretation of the second paragraph of Section 1
of P.D. No. 1866 that would make it define and punish a single integrated offense and give to the words WITH
THE USE OF a similar meaning as the words AS A RESULT OR ON THE OCCASION OF, a meaning which is
neither born out by the 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, it must be given its literal meaning and
applied without attempted interpretation,   leaving the court no room for any extended ratiocination or
51

rationalization of the law. 

52

Peregrinations into the field of penology such as on the concept of a single integrated crime or composite
crimes, or into the philosophical domain of integration of the essential elements of one crime to that of another
would then be unnecessary in light of the clear language and indubitable purpose and intent of the second
paragraph of Section 1 of P.D. No. 1866. The realm of penology, the determination of what should be
criminalized, the definition of crimes, and the prescription of penalties are the exclusive prerogatives of the
legislature. As its wisdom may dictate, the legislature may even create from a single act or transaction various
offenses for different purposes subject only to the limitations set forth by the Constitution. This Court cannot
dictate upon the legislature to respect the orthodox view concerning a single integrated crime or composite
crimes.

The only apparent obstacle to the imposition of cumulative penalties for various acts is the rule on double
jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice Regalado that the majority
view offends the constitutional bar against double jeopardy under the "same-evidence" test enunciated
in People vs. Diaz.   He then concludes:
53

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 murder would be different from the
evidence to be adduced in the subsequent charge for murder alone. In the second charge, the
illegal possession is not in issue, except peripherally and inconsequentially since it is not an
element or modifying circumstance in the second charge, hence 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 simple illegal possession, and, in the second charge,
because murder is the very subject of the prosecution. Assuming that all the other requirements
under Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily
present and can be validly raised to bar the second prosecution for murder?

In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other
composite crimes for which a single penalty is imposed, such as the complex, compound and so-
called special complex crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the same offense or
either estafa or falsification; or how the accused convicted of robbery with homicide under Article
294 can be legally charged again with either of the same component crimes of robbery or
homicide; or how the convict who was found guilty of rape with homicide under Article 335 can
be duly haled before the court again to face charges of either the same rape or homicide. Why,
then, do we now sanction a second prosecution for murder in the cases at bar since the very
same offense was an indispensable component for the other composite offense of illegal
possession of firearm with murder? Why would the objection of non bis in idim as a bar to a
second jeopardy lie in the preceding examples and not apply to the cases now before us?

We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised in this case. For
another, the so-called "same-evidence" test is not a conclusive, much less exclusive, test in double jeopardy
cases of the first category under the Double Jeopardy Clause which is covered by Section 21, Article III of the
Constitution and which reads as follows:

15
 No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

Note that the first category speaks of the same offense. The second refers to the same act. This was
explicitly distinguished in Yap vs. Lutero,   from where People vs. Relova   quotes the following:
54 55

Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause
20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy
of punishment for the same offense." (emphasis in the original) The second sentence of said
clause 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 same act." Thus, the first
sentence prohibits double jeopardy of punishment for the same offense whereas, the second
contemplates double jeopardy of 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 different
offenses, or the offense charged in one case is not included in, or does not include, the crime
charged in the other case. The second sentence 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 statute. If the two charges are based on one and the same act, conviction or
acquittal under either the law or the ordinance shall bar a prosecution under the other.
Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double
jeopardy of punishment for the same offense. So long as jeopardy has been attached under one
of the informations charging said offense, the defense may be availed of in the other case
involving the same offense, even if there has been neither conviction nor acquittal in either case.

Elsewise stated, where the offenses charged are penalized either by different sections of the same
statute or by different statutes, the important inquiry relates to the identity of offenses charged. The
constitutional protection against double jeopardy is available only where an identity as shown to exist
between the earlier and the subsequent offenses charged.   The question of identity or lack of identity of
56

offenses is addressed by examining the essential elements of each of the two offenses charged, as such
elements are set out in the respective legislative definitions of the offenses involved.  75

If may be noted that to determine the "same offense" under the Double Jeopardy Clause of the Fifth Amendment
of the Constitution of the United States of America which reads:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or
limb. . .

the rule applicable is the following: "where the same act or transaction 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 each provision requires proof of an additional fact which the other does not."  58

The Double Jeopardy Clause of the Constitution of the United States of America was brought to the Philippines
through the Philippine Bill of 1 July 1902, whose Section 5 provided, inter alia:

[N]o person for the same offense shall be twice put in jeopardy of punishment . . . .

This provision was carried over in identical words in Section 3 of the Jones Law of 29 August
1916.   Then under the 1935 Constitution, the Jones Law provision was recast with the addition of a
59

provision referring to the same act. Thus, paragraph 20, Section 1, Article III thereof provided as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21, Article III
of the present Constitution.

16
This additional-element test in Lutero and Relova and in Blockburger, Gore, and Missouri would safely bring the
second paragraph of Section 1 of P.D. No. 1866 out of the proscribed double jeopardy principle. For undeniably,
the elements of illegal possession of firearm in its aggravated form are different from the elements of homicide or
murder, let alone the fact that these crimes are defined and penalized under different laws and the former
is malum prohibitum, while both the latter are mala in se. Hence, the fear that the majority's construction of the
subject provision would violate the constitutional bar against double jeopardy is unfounded.

The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession of firearm in its
aggravated form must, however, be modified. The penalty prescribed by P.D. No. 1866 is death. Since Section
19(1), Article III of the Constitution prohibits the imposition of the death penalty, the penalty next lower in
degree, reclusion perpetua, must be imposed.

WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30 September 1993 of Branch
1 of the Regional Trial Court of Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty beyond
reasonable doubt of the crime of murder in Criminal Case No. 8178 and of illegal possession of firearm in its
aggravated form in Criminal Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended
by the Order of 29 October 1993, is sustained; however, the penalty imposed in the second case is changed
to Reclusion Perpetua from the indeterminate penalty ranging from Seventeen (17) years, Four (4) months, and
One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum.

Costs de oficio. SO ORDERED.

17
 G.R. No. 124212. September 17, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. WILFREDO FELOTEO, accused-

appellant.

AMENDEDDECISION

PUNO, J.:

Accused WILFREDO FELOTEO was charged with and convicted of the crimes of Murder, as defined
and penalized under Article 248 of the Revised Penal Code, and Illegal Possession of Firearm, a
violation of Section 1 of Presidential Decree No. 1866.

The Informations against accused read:

In Criminal Case No. 11109

"That on or about the 6th day of May, 1993, in the evening, at Sitio Nagbaril, Barangay Bintuan,
Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, with evident premeditation and treachery, while armed
with a firearm and with intent to kill, did then and there willfully, unlawfully and feloniously
shoot with his firearm, to wit: an armalite rifle, one SONNY SOTTO, hitting him on the vital
part of his body and inflicting upon him a gunshot wound on the left side of his chest, thru and
thru, which injury was the direct and immediate cause of his instantaneous death. (emphasis
ours)

"CONTRARY TO LAW and committed with aggravating circumstance of treachery."

In Criminal Case No. 11644

"That on or about the 6th day of May, 1993, and prior thereto, at Sitio Nagbaril, Barangay
Bintuan, Municipality of Coron, Province of Palawan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused did then and there willfully, unlawfully and feloniously have
in his possession, custody and control, one armalite rifle with Serial No. 9035914 and
ammunitions, without any license or permit to possess the same and that this firearm was
used in shooting to death one SONNY SOTTO in a case of Murder filed with the RTC of
Palawan and Puerto Princesa City, docketed as Criminal Case No. 11109 and that this crime have
no relation or (is not) in furtherance of the crime of rebellion or subversion. (emphasis ours)

"CONTRARY TO LAW."

When arraigned, accused pled not guilty. Trial ensued.

The records show that in the evening of May 6, 1993, the victim, SONNY SOTTO, and his friends,
ARNEL ABELEDA and JOHNNY ABREA, were walking along the highway in Barangay Bintuan,
Coron, Province of Palawan. They had a few drinks earlier that day and were on their way home to
Sitio Nagbaril. Abrea walked ahead of the group, about thirteen (13) meters away from Sotto,
followed by Abeleda. They were in a lively mood as Abeleda playfully walked backwards, facing
Sotto.1cräläwvirtualibräry

The accused, WILFREDO FELOTEO, appeared on the opposite side of the road and walked past
Abrea and Abeleda. He was armed with an armalite rifle. Abeleda and Abrea recognized the

18
accused, their barriomate, as the moon was shining brightly. They did not pay much attention to
the accused as Abeleda was playing "habulan" with Sotto. Without uttering a word, the accused
aimed the armalite at Sotto and pressed its trigger. Sotto was hit above the left chest and fell on
the ground, face down. Abeleda and Abrea scampered away to find help, while the accused fled
from the crime scene.2 Ten (10) minutes later, Abeleda and Abrea, accompanied by Barangay
Tanod Tito Abrina and a certain Inyong Adion, returned to the locus criminis. They found Sotto
dead.

Sotto was brought to the hospital for autopsy. The Autopsy Report showed that he sustained a
gunshot wound, with the bullet entering the left side of his collarbone and exiting at the spinal
cord. The bullet came from an M-16 armalite rifle. He also had abrasions on the knees and face.
Dr. Hew G. Curameng of the Palawan Provincial Hospital opined that Sotto fell on his knees before
he slumped on the ground, face down. There were no powder burns on his body, indicating that
the victim was shot from a distance. The cause of death was massive blood loss secondary to
gunshot wound.3 cräläwvirtualibräry

The firearm used in the shooting incident belongs to SPO2 Roman Adion. On May 6, 1993, SPO2
Adion went to the house of Teofisto Alaquin in Sitio Nagbaril. He brought with him his official
service firearm, an M-16 armalite rifle,4 as he has been ordered to go to Jandanao the next day to
investigate a land dispute. He slept early. At around 6:30 p.m., Alaquin woke him up and
informed him that the accused stole his armalite. SPO2 Adion, together with Nazario Adion and
Frank Adion, immediately looked for the accused. They heard a gunshot coming from a distance of
about four hundred (400) meters and rushed to the place where it emanated. They saw Sotto
lying prostrate on the road, shot on the chest. SPO2 Adion suspected that his armalite was used
in the shooting incident and he continued his hunt for the accused. The next day, May 7, 1993, at
5:00 a.m., he nabbed the accused in Sitio Cabugao, five (5) kilometers away from the crime
scene. The accused surrendered the armalite to him. Upon inspection, SPO2 Adion found nineteen
(19) bullets left in the armalite. There were twenty (20) bullets inside the armalite chamber and
magazine before it was stolen.5 cräläwvirtualibräry

SPO4 Jose Ansay, Chief of the Firearm and Explosive Unit of the Philippine National Police (PNP) in
Tiniguiban, Puerto Princesa City, Palawan, affirmed that the accused was not duly licensed to
carry a firearm.6
cräläwvirtualibräry

The accused denied that he stole SPO2 Adion's armalite and alleged that the shooting of Sotto
was an accident. He averred that on May 6, 1993, he was in his sister's house in Barangay
Bintuan, Coron, when SPO2 Adion passed by and invited him over to the place of Teofisto Alaquin
in Nagbaril. They boarded SPO2 Adion's tricycle and arrived at Nagbaril at about 3:00 p.m. Frank
Adion dropped by the house of Alaquin and borrowed the tricycle of SPO2 Adion. Frank Adion later
returned on foot and told SPO2 Adion that the tricycle's engine broke down so he left it along the
road. SPO2 Adion checked on his tricycle and left behind his armalite rifle. Before leaving, he
instructed the accused to wait for him at Alaquin's house.7 cräläwvirtualibräry

After thirty minutes, the accused decided to follow SPO2 Adion. He took the armalite and walked
the road leading to Bintuan. At about 7:00 p.m., he met Sonny Sotto's group. They zigzagged as
they walked. In jest, the accused said to Sotto, "Boots, don't get near me, I'll shoot you." He
pointed the armalite to Sotto and pressed its trigger, allegedly unaware that it was loaded. It fired
and hit Sotto. The accused fled but was apprehended by SPO2 Adion the following day. He told
SPO2 Adion that he accidentally shot Sotto.8 cräläwvirtualibräry

After trial, the accused was found guilty as charged.9 He was sentenced to suffer the penalties
of reclusion perpetua, for murder, and imprisonment of twenty (20) years, for illegal possession of
firearm. He was further ordered to pay the heirs of Sotto the amount of fifty thousand pesos
(P50,000.00), as civil indemnity.

In this appeal, appellant contends:

19
"THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY
AS ATTENDING THE COMMISSION OF THE CRIME ALLEGED AND IN HOLDING ACCUSED-
APPELLANT GUILTY OF MURDER IN THE KILLING OF SONNY SOTTO."

We affirm the judgment of conviction with modification.

We reject the argument of the appellant that he should not have been convicted for murder as
treachery was not duly established by the prosecution. Allegedly, Sotto knew of the impending
attack for it was frontal. Moreover, Sotto was warned, albeit jokingly, that he was going to be
shot.

Under par. 16, Article 14 of the Revised Penal Code, the qualifying circumstance of treachery is
present when the offender employs means, methods, or forms in the execution of the crime which
tend directly and especially to insure its execution without risk to himself arising from any
defensive or retaliatory act which the victim might make.10 The settled rule is that treachery can
exist even if the attack is frontal if it is sudden and unexpected, giving the victim no
opportunity to repel it or defend himself. What is decisive is that the execution of the attack,
without the slightest provocation from a victim who is unarmed, made it impossible for the victim
to defend himself or to retaliate.11
cräläwvirtualibräry

In the case at bar, treachery is present for there was a sudden attack against the unarmed Sotto.
When Sotto and his friends encountered appellant on the road, they were in a "jovial mood" as
they just came from a drinking spree. Although they saw appellant carrying an armalite, they did
not suspect anything untoward to happen. However, without any provocation, appellant shot
Sotto. The fact that the attack was frontal cannot negate treachery. The shooting was
unexpected. There is no showing that the alleged warning given by appellant to Sotto afforded the
latter sufficient time to defend himself. Indeed, Sotto could not defend himself as he was unarmed
and a bit drunk-- as observed by the appellant himself, the victim was walking in a zigzag
manner. There was no way for Sotto to avoid the armalite bullet.

We now come to the penalty imposed on appellant for the illegal possession of firearm in view of
the recent amendments to P.D. No. 1866 by R.A. No. 8294.

Appellant was convicted under Article 248 of the Revised Penal Code, for murder, and under
Section 1 of P.D. No. 1866, for illegal possession of firearm, the governing laws at the time the
crimes were committed. Section 1 of P.D. 1866 provides:

"SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms,

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition.- The penalty of reclusion temporal in its maximum period to reclusion perpetua shall
be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose or
possess any firearm, part of firearm, ammunition of machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty
of death shall be imposed." (emphasis ours)

Republic Act No. 8294, amended P.D. No. 1866, by reducing the penalties for simple and
aggravated forms of illegal possession of firearms.12 The law now provides:

"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition.- The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, ammunition, or machinery, tool or

20
instrument used or intended to be used in the manufacture of any firearm or ammunition:
Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(P30,000.00) shall be imposed if the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as
caliber .40, .41, .45 and also lesser caliber firearms but considered powerful such as caliber .357
and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and
by burst of two or three: Provided, however, That no other crime was committed by the person
arrested.

"If homicide or murder is committed with the use of unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance. (emphasis ours)

xxx

"Sec. 5. Coverage of the Term Unlicensed Firearm. - The term unlicensed firearm shall include:

1) firearms with expired license, or

2) unauthorized use of licensed firearm in the commission of the crime."

Clearly, the penalty for illegal possession of high powered firearm is prision mayor in its minimum
period and a fine of P30,000.00. In case homicide or murder is committed with the use of
unlicensed firearm, such use of unlicensed firearm shall be merely considered as an
aggravating circumstance.

The enactment of R.A. No. 8294 can be given retroactive effect as it favors the appellant.13 So we
held in People v. Simon,14 viz:

"Since obviously, the favorable provisions of Republic Act 7659 could neither have been involved
or invoked in the present case, a corollary question would be whether this court, at the present
stage, can sua sponte apply the provisions of Article 22 to reduce the penalty to be imposed on
appellant. That issue has likewise been resolved in the cited case of People v. Moran, et al., ante.,
thus:

`x x x. The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of
penal laws in so far as they are favorable to persons accused of a felony, would be useless and
nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of
whether or not the accused has applied for it, just as would also all provisions relating to the
prescription of the crime and the penalty.'

If the judgment which could be affected and modified by the reduced penalties provided in
Republic Act No. 7659 has already become final and executory or the accused is serving sentence
thereunder, then practice, procedure and pragmatic consideration would warrant and necessitate
the matter being brought to the judicial authorities for relief under a writ of habeas corpus."
(footnote omitted)

Thus, in the recent case of People v. Molina, et al . ,15 the Court (En Banc) gave retroactive
application to R.A. No. 8294 considering that, under the new law, the offenses of murder and
illegal use or possession of firearm are integrated into a single offense. We held:

"x x x. The intent of Congress to treat as a single offense he illegal possession of firearm and the
commission of murder or homicide with the use of such unlicensed firearm is clear from the
following deliberations of the Senate during the process of amending Senate Bill No. 1148:

21
'Senator Drilon. On line 18, we propose to retain the original provision of law which says, 'If
homicide or murder is committed with the use of the unlicensed firearm.' And in order that we can
shorten the paragraph, we would suggest and move that the use of the unlicensed firearm be
considered as an aggravating circumstance rather than imposing another period which may not be
in consonance with the Revised Penal Code.

'So that (if) I may read the paragraph in order that it can be understood, may I propose an
amendment to lines 18 to 22 to read as follows: 'If homicide or murder is committed with the use
of unlicensed firearm, SUCH USE OF AN UNLICENSED FIREARM SHALL BE CONSIDERED AS AN
AGGRAVATING CIRCUMSTANCE.'

xxx

'Senator Santiago. Mr. President.

'The President. With the permission of the two gentlemen, Senator Santiago is recognized.

'Senator Santiago. Will the principal author allow me as coauthor to take the [f]loor to explain, for
the information of our colleagues, the stand taken by the Supreme Court on the question of
whether aggravated illegal possession is a complex or a compound offense. May I have the [f]loor
?

'Senator Revilla. Yes, Mr. President.

'Senator Santiago. Thank You.

'In 1995, the Supreme Court held that when the crime of killing another person is committed with
the use of an unlicensed firearm, the ruling in the case of People v. Barros was that the crime
should only be illegal possession of firearm in its aggravated form. But in the later case, in May
1996, in the case of People v. Evangelista, the court apparently took another position and ruled
that when a person is killed with the use of an unlicensed firearm, it is possible to file two
separate information[s] -- one for murder and one for illegal possession of firearms.

'In other words, in two successive years, the Supreme Court issued two different ways of treating
the problem. The first is to treat it as one crime alone in the aggravated form, and the second is
to treat it as two separate crimes.

'So at this point, the Senate has a choice on wether we shall follow the 1995 or the 1996 ruling.
The proposal of the gentleman, as a proposed amendment, is to use the 1995 ruling and to
consider the offense but in an aggravated form. That could be acceptable also to this coauthor.

'The Presiding Officer [Sen. Flavier.] So, do I take it that the amendment is accepted ?

'Senator Revilla. Yes, it is accepted, Mr. President.

'The Presiding Officer [Sen. Flavier.] Thank you. Is there any objection to the amendment?
[Silence] There being none, the amendment is approved.'

"Although the explanation of the legal implication of the Drilon amendment may not have been
very precise, such modification, as approved and carried in the final version enacted as RA 8294,
is unequivocal in language and meaning. The use of an unlicensed firearm in a killing is now
merely an aggravating circumstance in the crime of murder or homicide. This is clear from the
very wordings of the third paragraph of Section 1 of RA 8294, which reads:

'If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.'

22
"Furthermore, the preceding paragraphs, also in Section 1, state that the penalties for illegal
possession of firearms shall be imposed 'provided that no other crime is committed.' In other
words, where murder or homicide was committed, the separate penalty for illegal possession shall
no longer be meted out since it becomes merely a special aggravating circumstance.

"This statutory amendment may have been an offshoot of our remarks in People v. Tac-an and
People v. Quijada.

'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 unlicensed firearm, i.e., to consider such use merely
as a qualifying circumstance and not as an offense. That could not have been the intention of the
lawmaker because the term penalty for illegal possession of firearm and not the penalty for
homicide or murder. We explicitly stated in Tac-an:

'There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in
homicide or murder. Under an information charging homicide or murder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense
of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential
point is that the unlicensed character or condition of the instrument used in destroying 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 Code.

'A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying
circumstance.'

In line with our decision in People v. Molina, the appellant is liable only for murder under the
Revised Penal Code. Further, in view of amendments introduced by R.A. No. 8294 to P.D. No.
1866, the use of the unlicensed firearm in killing the victim, Sonny Sotto, is no longer considered
as a separate offense, instead, it is considered as an aggravating circumstance.16 However, it will
not affect the penalty of reclusion perpetua imposed against the appellant.17

IN VIEW WHEREOF, we AFFIRM the trial court's judgment in Criminal Case No. 11109,
sentencing the appellant, WILFREDO FELOTEO, to reclusion perpetua and ordering him to
indemnify the legal heirs of the victim, Sonny Sotto, in the amount of P50,000.00. Appellant's
conviction in Criminal Case No. 11644 is SET ASIDE.

SO ORDERED.

Regalado, (Chairman), Melo, Mendoza and Martinez, JJ., concur.

23
 G.R. No. 128618. November 16, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FELICISIMO NARVASA, JIMMY ORANIA

and MATEO NARVASA, accused, FELICISIMO NARVASA and JIMMY ORANIA appellants.

DECISION

PANGANIBAN, J.:

What crime or crimes are committed when a killing is perpetrated with the use of unlicensed
firearms? In the absence of the firearms themselves, may illegal possession of firearms be proven
by parol evidence?

The Case

Appellants Felicisimo Narvasa and Jimmy Orania seek the reversal of the October 11, 1996
Decision1 of the Regional Trial Court of Alaminos, Pangasinan, in Criminal Case Nos. 2629-A,
2648-A and 2646-A, finding them guilty beyond reasonable doubt of illegal possession of firearms
in its aggravated form and sentencing them to reclusion perpetua.

Assistant Provincial Prosecutor Emiliano A. Rabina filed three Informations2 against the appellants
and their co-accused, Mateo Narvasa. In Criminal Case No. 2648-A, the Amended Information
filed on November 10, 1993 charged Felicisimo Narvasa (in conspiracy with the other accused)
with aggravated illegal possession of firearm allegedly committed as follows:

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno,
[P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody an M-14 Rifle without first securing the
necessary license or permit from the lawful authorities and which firearm in conspiracy with
Jimmy Orania and Mateo Narvasa was used in the killing of one SPO3 Primo Camba, victim in
Crim. Case No. 2629-A.

In Criminal Case No. 2646-A, Jimmy Orania (in conspiracy with the other accused) was charged
with aggravated illegal possession of firearm in the Amended Information which reads:

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno,
[P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody a .30 U.S. Carbine without first securing
the necessary license /and/or permit from the lawful authorities and which firearm in conspiracy
with Mateo Narvasa and Felicisimo Narvasa was used in the killing of SPO3 Primo Camba, victim
in Crim. Case No. 2629-A.

In Criminal Case No. 2629-A, Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa were charged
with homicide allegedly committed as follows:

That on or about February 6, 1992, at Sitio Bugtong, [B]arangay Patar, [M]unicipality of Agno,
[P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually helping one

24
another, with intent to kill, armed with high powered guns, did then and there willfully, unlawfully,
and feloniously shoot SPO3 PRIMO CAMBA which caused his instantaneous death as a
consequence, to the damage and prejudice of his heirs.

Felicisimo Narvasa and Jimmy Orania were arrested, but Mateo Narvasa remained at large. When
arraigned, the two appellants, assisted by their counsel,3 pleaded not guilty.4 Trial proceeded in
due course. Thereafter, the court a quo  rendered the assailed Decision, the dispositive portion of
which reads:

WHEREFORE, in consideration of the foregoing premises and the evidence presented, this Court
finds both accused Felicisimo Narvasa in Criminal Case No. 2648-A and Jimmy Orania in Criminal
Case No.2646-A [g]uilty beyond reasonable doubt of the crime of [i]llegal [p]ossession of
[f]irearms in its aggravated form in these cases and therefore, both accused are sentenced to
death penalty but for reasons that the law at that time of the commission of the crime prohibits
death sentence penalty, these two accused therefore shall each suffer the sentence of single,
indivisible penalty of reclusion perpetua and are ordered to pay jointly and severally the heirs of
the victim the amount of P50,000.00 as death indemnity and moral damages of P100,000.00
each, plus cost.

In Criminal Case No. 2629-A for [h]omicide, this Court has considered this case as [a] necessary
component of the crimes of [i]llegal [p]ossession in their aggravated form, as the same is merely
an element of the principal offense of [i]llegal [p]ossession of [f]irearms in [its] aggravated form,
which is the graver offense.

With respect to accused Mateo Narvasa, since he has not been arrested and never brought to the
jurisdiction of this Court, this case in the meantime, is ordered archived insofar as said accused
Mateo Narvasa is concerned.

Let an Alias Warrant of Arrest issue as against accused Mateo Narvasa.

The [b]ailbond posted by accused Felicisimo Narvasa is hereby ordered cancelled.

Appellants counsel then filed a Notice of Appeal to the Court of Appeals.5 In an Order6 dated
October 24, 1996, the trial court deemed the appeal filed by Felicisimo Narvasa and Jimmy Orania
perfected, and effected the transmittal of the case records to the Court of Appeals. Realizing the
mistake, the Court of Appeals subsequently forwarded the records to this Court.7

The Facts

Evidence for the Prosecution

In his Brief, the solicitor general8 presented the following narration of facts:

On February 6, 1992, after lunch time[,] Villamor Laderas and Ernesto Nagal, councilmen of
Quinaoayanan, Bani, Pangasinan, acting on a report that there were missing carabaos, pigs and
goats, repaired to the far-flung Sitio Bugtong of the town of Bani and to Sitio Patar of the
adjoining town of Agno in Pangasinan, which they reached at around 5:30 that afternoon. Then
Laderas and Nagal patrolled the area. Along their way, the two chanced upon the gang of
appellants[.] [T]hey were five and three of them were armed. Jimmy Orania was holding a
caliber .30 U.S. carbine, Mateo Narvasa was armed with [an] M-16 and Felicisimo Narvasa was
carrying an M-14.

The two are familiar with those kind[s] of guns as they have seen similar ones carried by
policemen. They said, a carbine is shorter than [an] M-14 and [an] M-16 is longer than [an] M-14
(Tsn., April 21, 1994, pp. 1-35, December 13, 1995, pp. 1-12).

25
Laderas and Nagal simply stared at the five and then they proceeded to their way home. Unluckily
for the goons, the two councilmen met the two policemen[,] SPO3 Primo Camba and PO2 Simeon
Navora who were on patrol and they reported what they saw (Ibid).

The two policemen were also responding to a report about the missing animals and they
suggested that all of them should track down the armed goons (Ibid).

After walking some distance, the four responding men saw the house of appellant Felicisimo
Narvasa on a hilly portion around 100 meters away from their path. They decided to investigate at
the house but before they could negotiate the distance, they were met by a volley of gunfire. The
four[,] who were ten meters apart[,] dove and sought cover (Tsn., April, 1994, p. 11). When the
firing took a halt, Laderas had the courage to raise his head and [view] xxx the source of the
gunfire. Laderas saw Felicisimo Narvasa in a squatting position aiming at the two policemen and
Jimmy Orania was seated near him guiding him at his target. Mateo Narvasa was also aiming his
gun. There was an exchange of gunfire as the policemen were able to take proper positions.
Unfortunately, SPO3 Camba was hit. Navora summoned Laderas and Nagal to get closer to give
aid to Camba. Laderas and Nagal carried Camba as they retreated and, Navora followed moving
backwards as he kept firing at their enemies (Ibid, tsn., July 20, 1994, pp. 1-8; tsn., August 15,
1994, pp. 2-30).

In the process of the retreat, Camba [bled] profusely and he died even before he could be
brought out from the scene of the crime.

The body of Camba was left at the scene of the crime while his companions escaped and called for
help. Several policemen arrived. Pieces of evidence like empty shells of M-16, M-14 and
caliber .30 U.S. carbine bullets were gathered and some policemen were tasked to track down the
goons (Exhs. C, C-1 to C-4; tsn., August 16, 1994, pp. 6-10).

Shortly thereafter, Felicisimo Narvasa, Glicerio Narvasa, Rederio Narvasa and Jimmy Orania were
apprehended. Mateo Narvasa was not found. The four were investigated and paraffin tested.
Felicisimo Narvasa and Jimmy Orania were found positive of gunpowder burns (Tsn., August 16,
1994, pp. 11-15).9

Evidence for the Defense

Appellants deny the charges against them. Felicisimo Narvasa even claims that his son Arnel was
shot by Ernesto Nagal, Villamor Laderas and PO2 Simeon Navora. In their Brief,10 they state:

Felicisimo Narvasa testified that he was sleeping at his house on the afternoon of February 6,
1992 when Glicerio Narvasa woke him up and informed him that his son Arnel was shot. He went
downstairs and saw his co-accused Jimmy Orania embracing his son. He asked his son who shot
him and the latter told his father that it was the group of Councilman Laderas who shot him. He
instructed Orania and his wife to bring his son to the hospital but the latter died at the hospital.
He further averred that before he slept, Jimmy Orania, Glicerio Narvasa and Rederio Narvasa were
in his house drinking two bottles of gin after helping him [fix] the fence in his house. Accused-
appellant Narvasa when asked to explain the charge against him denied committing the same. On
March 17, 1992 he gave his affidavit naming Ernesto Nagal, Villamor Laderas and Simeon Navora
as the assailants of his son. (TSN, August 8, 1999, pp. 3-17)

Jimmy Orania testified that on February 6, 1992, he was in the house of his co-accused Felicisimo
Narvasa because he was invited to work on the fence of Felicisimo. After finishing their work,
Jimmy[,] together with Glicerio and Rederio Narvasa[,] drunk two bottles of gin. At about 5:00
oclock in the afternoon he instructed Arnel Narvasa to get their carabaos grazing around 100
meters north of the house of Felicisimo, when he heard a gunshot coming from that direction.
Arnel shouted for help, so he proceeded to the place where Arnel was shot and carried him to the
house of Felicisimo. The latter was awakened by Glicerio and when he asked his son who shot
him, Arnel answered that it was the group of Laderas.
26
Jimmy Orania further averred that he knew nothing and denied participation in the killing of Primo
Camba. That on the day after February 6, 1992, they were picked up by the police. (TSN, August
20, 1996, pp. 3-13).11

Ruling of the Trial Court

The trial court accorded credibility to the prosecution witnesses and held that mere denial could
not overcome the prosecution evidence showing that appellants used high-powered firearms to
shoot at the prosecution witnesses, thereby resulting in the death of SPO3 Primo Camba. Further
supporting said testimonies were the results of the paraffin test conducted on appellants and the
recovery of various cartridges and shells matching the firearms purportedly used in the crime.
Though these unlicensed firearms were not presented as evidence, the trial court, citing People v.
Ferrera,12 ruled that appellants may still be convicted of illegal possession of firearms.

Finally, the trial court found that appellants acted in conspiracy in the killing of Primo Camba.
However, on the basis of People v. Barros,13 it held that the homicide was merely an element of
the illegal possession of firearms in its aggravated form; thus, homicide in the present case was
taken into account not as a separate crime but as an aggravating circumstance which increased
the penalty for the illegal possession of firearms.

Hence, this appeal.14

Assignment of Errors

In assailing the trial courts Decision, appellants interpose the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO
THE INCONSISTENT TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE
INSUFFICIENCY OF THE PROSECUTIONS EVIDENCE TO WARRANT CONVICTION OF
THE ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT OF THE CRIME OF
AGGRAVATED ILLEGAL POSSESSION OF FIREARM.15 cräläwvirtualibräry

In the main, the resolution of this case revolves around the credibility of the prosecution
witnesses, the sufficiency of the prosecution evidence and the characterization of the crime
committed.

The Courts Ruling

The appeal is not meritorious. In light of Republic Act 8294,16 however, appellants should be
convicted only of homicide, with the special aggravating circumstance of the use of illegally
possessed firearms.

First Issue: Credibility of Prosecution Witnesses

Appellants question the credibility of Witnesses Laderas and Nagal because of an alleged
inconsistency in their testimonies. Laderas testified that there was an exchange of fire between
appellants and PO2 Simeon Navora, while Nagal declared that only the appellants fired. Appellants
point out that conflicting testimonies on a material and relevant point casts doubt [on] the
truthfulness or veracity17 of such testimonies.

Appellants contention is untenable. The circumstances of the instant case explain the seeming
inconsistency in the testimonies of the two witnesses. At the time, they were under fire and in
fear of losing their lives. Moreover, they did not take cover in the same place that Navora did.

27
Nonetheless, their uncertainty on whether Navora had fired back is immaterial to the crime
charged and too insignificant to impair their credibility. In any event, the Court has ruled that a
witness is not expected to remember an occurrence with perfect recollection of minute details.18

Second Issue: Sufficiency of the Evidence

Appellants cite People v. Lualhati,19 wherein this Court ruled that in crimes involving illegal

possession of firearm, the prosecution has the burden of proving the elements thereof, viz: the
existence of the subject firearm and the fact that the accused who owned or possessed the
firearm does not have the corresponding license or permit to possess the same. Appellants
contend that the existence of the firearms was not sufficiently proven because the prosecution
had not presented the firearms as evidence. It is necessary, they argue, that said firearms
allegedly possessed by the accused-appellants and allegedly used in the killing of Policeman Primo
Camba be presented in evidence as those firearms constitute the corpus delicti of the crime with
which they are sentenced.20 cräläwvirtualibräry

Appellants argument is not persuasive. In People v. Lualhati,  this Court merely stated that the
existence of the firearm must be established; it did not rule that the firearm itself had to be
presented as evidence. Thus, in People v. Orehuela,21 the Court held that the existence of the
firearm can be established by testimony, even without the presentation of the said firearm. In the
said case, Appellant Orehuela was convicted of qualified illegal possession of a firearm despite the
fact that the firearm used was not presented as evidence. The existence of the weapon was
deemed amply established by the testimony of an eyewitness that Orehuela was in possession of
it and had used it to kill the victim, viz.:

We consider that the certification was adequate to show that the firearm used by Modesto
Orehuela in killing Teoberto Canizares was a firearm which Orehuela was not licensed to possess
and to carry outside his residence on the night that Teoberto Canizares was shot to death. That
that firearm was a .38 caliber pistol was shown by the testimony and report of NBI Ballistician
Bonifacio Ayag. When the above circumstances are taken together with the testimony of the
eyewitness that Modesto Orehuela was in fact in possession of a firearm and used the
same to kill Teoberto Canizares, we believe that accused Orehuela was properly found guilty of
aggravated or qualified illegal possession of firearm and ammunition.

In the present case, the testimonies of several witnesses indubitably demonstrate the existence of
the firearms. Villamor Laderas stated that when he went to Barangay Quinaoayanan, Bani,
Pangasinan to investigate a report regarding missing carabaos, pigs and goats, he saw the
appellants carrying long firearms. We quote hereunder the relevant portion of his testimony:

Q And when you saw the two accused together with the three others, what have you noticed in
their persons?
A They were holding long firearms, sir.
Q Who of the five persons did you see was holding long firearms?
A Jimmy Orania was holding a carbine; Mateo Narvasa was holding an M-16.
Q About Felicisimo Narvasa, what was he holding?
A Felicisimo Narvasa was holding [an] M-14.22 cräläwvirtualibräry

Ernesto Nagal likewise stated that he saw appellants carrying long firearms, as his testimony
indicates:
Q What did you notice in the persons of the five persons you met?
A They were carrying arms, sir.
Q What kind of firearm were the five persons, or some of them, carrying?
A Jimmy Orania is carrying a caliber .30.
Q How about Mateo Narvasa?
A Mateo Narvasa is carrying [an] M-16.
Q How about Felicisimo Narvasa?
A A long firearm was carried by Felicisimo Narvasa, sir, but I dont know the caliber.23 cräläwvirtualibräry

28
That herein appellants were the ones who had shot at the prosecution witnesses was confirmed by
Laderas, who testified as follows:
Q How did you know that the gunfire came from the west?
A Because we were facing west.
Q And while the gunfire was going on, did you know who fired those gunshots?
A We know sir, because we can see them.
Q Whom did you see?
A Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa, sir.24 cräläwvirtualibräry

In addition, Primo Camba was hit by a bullet, and empty shells of M-16, M-14 and .30 caliber
carbine bullets were later on recovered in the vicinity of the place where the shooting occurred.

The above facts, duly proven and taken together, sufficiently establish the existence of the
subject firearms and the fact that appellants possessed and used said firearms in firing at Villamor
Laderas, Ernesto Nagal, and Simeon Navora, as well as Primo Camba who succumbed to the
gunshot wound he had sustained.

The present case can be distinguished from People v. Navarro25 wherein the Court held that illegal
possession of firearm could not be deemed an aggravating circumstance because the existence of
the said firearm was not proven. In said case, a witness testified that he saw appellant shoot the
victim with a short firearm. No firearm, however, was presented as evidence, although a gun was
recovered from the accused when he was arrested. Moreover, no proof was adduced to show
that the firearm allegedly seen by the witness was the same one recovered by the
authorities from the accused. Thus, the Court held:

In the case at bar, the Information alleged that on January 5, 1991, the appellant had in his
possession an unlicensed firearm which he used in killing Ferdinand Rabadon. This firearm was
allegedly recovered on January 5, 1994, when appellant was arrested. However, said firearm was
not presented in court or offered as evidence against the appellant. Although Rabago testified that
he saw the appellant with a short firearm when the latter shot Rabadon on January 5, 1991 no
other proof was presented to show that such gun, allegedly used on January 5, 1991, was the
same one recovered on January 5, 1994. The prosecution was not able to establish sufficiently the
existence of the subject firearm x x x.

In other words, the evidence on the existence of the firearm was beset with doubt and conflict.
Such uncertainty is not found in the present case, for the testimonies of several
witnesses indubitably established that the subject firearms were in the possession of the
appellants.

As to proof that appellants had no license or permit to possess the firearms in question, we have
held in People v. Villanueva26 that the second element of illegal possession of firearms can be
proven by the testimony or the certification of a representative of the PNP Firearms and
Explosives Unit that the accused was not a licensee of the firearm in question. The Court ruled:

As we have previously held, the testimony of, or a certification from the PNP Firearms and
Explosives Unit that the accused-appellant was not a licensee of the said firearm would have
sufficed to prove beyond reasonable doubt the second element of the crime of illegal possession.

The prosecution submitted a certification showing that Appellants Felicisimo Narvasa and Jimmy
Orania were not licensed firearm holders,27 a fact that was attested to by SPO4 Roberto Manuel, a
member of the PNP stationed at the provincial headquarters of the Pangasinan Provincial
Command as Assistant Firearms and Explosives NCPO, who testified thus:

Q And did you bring with you the Master List of the firearm licensed holders in Pangasinan?
A Yes, sir.
Q Will you please produce it?
A (Witness showing a folder, which is the Master List of firearm licensed holders in Pangasinan.)
29
Q And with the aid of that voluminous list of firearm holders in Pangasinan, will you please tell his
Honor if Felicisimo Narvasa and Jimmy Orania appear therein as licensed firearm holders?
A Their names do not appear, as manifested by our [Master List as licensed] holders of any
caliber, sir.28 cräläwvirtualibräry

Appellants did not present any evidence and neither did they even claim -- that they were in fact
licensed firearm holders.

Appellants Responsible for Policemans Death

Laderas, Nagal and Navora testified that as their group, which included Primo Camba, approached
Felicisimo Narvasas house, they were suddenly fired upon. Camba was hit and it was from that
bullet wound that he died. That appellants were responsible for his death is clear from Navoras
testimony:

Q And on your way following them what happened?

A When we were about 100 meters North of the House of Ising Narvasa we were met [by] a
heavy volume of gunfire.
Q Now, if you were met according to you with heavy volume of gunfire, what did you xxx and
your companion [do]?
A We dive[d] to the ground for safety, sir.
xxx
Q Upon diving to the ground, what happened to Primo Camba?
A Primo Camba was hit, sir[.]
Q How did you come to know that Primo Camba was hit by the first exchange of gunfire?
A Just after we dived to the ground, xxx Primo Camba told me that he was hit.
Q And when Primo Camba told you that he was hit, what did you do?
A I signalled the two (2) councilmen to get near me.
xxx
''Q After giving instruction to the two (2) councilmen, what did you do?
A They carr[ied] him while we were retreating.
Q Carried the body of Primo Camba, to what place?
A We retreated [to the] East direction, until we reach the yard of [a] certain Prudencio.
xxx
Q And when you reach[ed] the premises of Prudencio, what was the condition of Primo Camba?
A He [was] no longer breathing, sir.29 cräläwvirtualibräry

Laderas was able to identify their attackers as Felicisimo Narvasa, Jimmy Orania and Mateo
Narvasa. As these three directed and fired their guns at Laderas, Nagal, Navora and Camba, there
was unity in action and purpose, and thus, conspiracy was present. Although it was not
ascertained who among them actually shot Camba, all of them are liable for his death. In
conspiracy, the act of one is the act of all.

Third Issue:

The Crime

The totality of the evidence shows that appellants possessed unlicensed firearms, which they used
in killing Primo Camba. In its Decision, the trial court convicted appellants of [i]llegal [p]ossession
of [f]irearms in its aggravated form and considered homicide merely an element of the principal
offense of [i]llegal [p]ossession of [f]irearms in its aggravated form. Applying People v. Barros30 to
the proven facts, the trial court imposed upon appellants the penalty of reclusion perpetua.
However, a new law has in the meanwhile been enacted.

Republic Act No. 8294,31 which imposes a lighter penalty for the crime, provides:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
30
Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen Thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition; Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000)
shall be imposed if the firearm is classified as high powered firearm which includes those with
bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and
also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-
fire magnum and other firearms with firing capability of full automatic and by burst of two or
three; Provided, however, That no other crime was committed by the person arrested.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

In People v. Molina,32 this Court en banc explained that RA 8294 considers the use of an

unlicensed firearm only an aggravating circumstance in murder or homicide, viz.:

Under our ruling in People vs. Quijada, violation of PD 1866 is an offense distinct from murder;
appellants should perforce be culpable for two separate offenses, as ruled by the trial court.

Fortunately for appellants, however, RA 8294 has now amended the said decree and considers the
use of an unlicensed firearm simply as an aggravating circumstance in murder or homicide, and
not as a separate offense.

Under RA 8294, appellants can be held liable only for homicide33 and penalized with reclusion
temporal. Pursuant to Article 22 of the Revised Penal Code,34 RA 8294 should be given retroactive
effect.

Civil Liability

Consistent with prevailing jurisprudence, appellants are liable to pay, jointly and severally, the
heirs of Primo Camba the sum of fifty thousand pesos (P50,000) as indemnity ex delicto for his
death.

However, the award of two hundred thousand pesos (P200,000) representing moral damages
should be deleted since no evidence of anxiety, moral shock, wounded feelings or similar injury
was presented during the trial.

WHEREFORE, the assailed Decision is hereby MODIFIED.  For the death of Primo Camba,
Appellants Felicisimo Narvasa and Jimmy Orania are found GUILTY of HOMICIDE with the
special aggravating circumstance of using unlicensed firearms. Applying the Indeterminate
Sentence Law, they are each sentenced to twelve (12) years of prision mayor, as minimum, to
twenty (20) years of reclusion temporal, as maximum; and ordered to pay the heirs of Primo
Camba P50,000 as death indemnity. However, the award of moral damages is hereby DELETED.

SO ORDERED.

Davide Jr. (Chairman), Bellosillo, Vitug and Quisumbing JJ., concur.

31
 G.R. No. 131144. October 18, 2000

NOEL ADVINCULA, Petitioner, v. HON. COURT OF APPEALS, HON. SOLICITOR GENERAL,

HON. EDELWINA PASTORAL, Presiding Judge, RTC-Br. 91, Bacoor, Cavite, HON.
HERMINIO P. GERVACIO, Provincial Prosecutor of Cavite, AMANDO OCAMPO and
ISAGANI OCAMPO, Respondents.

DECISION
BELLOSILLO, J.:

NOEL ADVINCULA, in this petition for review, assails the Decision of the Court of Appeals which
set aside the resolution of the Secretary of Justice ordering the Provincial Prosecutor of Cavite to
file an Information for Illegal Possession of Firearms against private respondents Amando Ocampo
and Isagani Ocampo. chanrob1es virtua1 1aw 1ibrary

As found by the Court of Appeals, on 1 October 1993 at around three o’clock in the afternoon,
private respondent Isagani Ocampo was on his way home when petitioner Noel Advincula and two
(2) of his drinking companions started shouting invectives at him and challenging him to a fight.
Petitioner, armed with a bolo, ran after Isagani who was able to reach home and elude his
attackers. Petitioner kept cursing Isagani who eventually left. A certain Enrique Rosas told private
respondent Amando Ocampo, father of Isagani, that petitioner had chased his son with a bolo.
Amando then got his .22 caliber gun, which he claimed was licensed, and confronted petitioner
who continued drinking with his friends. But petitioner threatened to attack Amando with his bolo,
thus prompting the latter to aim his gun upwards and fire a warning shot. Cooler heads
intervened and Amando was pacified. He left to check on his son. Later, however, he saw
petitioner’s drinking companions firing at petitioner’s house. 1

Petitioner however has a different version. According to him, on 1 October 1993 he and his friends
were having a conversation outside his house when Isagani passed by and shouted at them. This
led to a heated argument between him and Isagani Then Isagani left but returned with his father
Amando and brother Jerry. Isagani and Amando were each armed with a gun and started
petitioner who ran home to avoid harm but private firing at respondents Isagani and Amando
continued shooting, hitting petitioner’s residence in the process. 2

A series of criminal complaints were filed by petitioner on one hand and private respondents on
the other. But the controversy in this petition arose from the complaint filed by petitioner on 5
April 1994 for Illegal Possession of Firearms against private respondents before the Provincial
Prosecutor of Cavite. Petitioner’s complaint was supported by his complaint-affidavit, the affidavit
of one Federico San Miguel, photocopies of photographs showing bullet holes on petitioner’s
residence, and certification of the Firearms and Explosives Unit of the Philippine National Police
that private respondents had no records in that office.

After private respondents submitted their counter-affidavits, the Assistant Provincial Prosecutor,
with the approval of the Provincial Prosecutor, dismissed on 26 May 1994 petitioner’s complaint

32
against private respondents for Illegal Possession of Firearms for lack of evidence. According to
the Provincial Prosecutor —

After a close and careful study of the records of the instant case, undersigned finds and so holds
that the evidence presented by the complainant is not sufficient to engender a well founded belief
that the crime for Illegal Possession of Firearms has been committed and the respondents are
probably guilty thereof. While it is true that respondent Amando Ocampo was possessing a gun on
the date of the incident per the allegations in his counter-affidavit that he fired a gun upwards to
prevent complainant from further assaulting him yet the possession of said firearm cannot be
considered illegal or unlawful as the same is covered by a firearm license duly issued by the chief
of the Firearm and Explosives Office.chanrob1es virtua1 1aw 1ibrary

With respect to respondent Isagani Ocampo, no convincing evidence has been presented by the
complainant except the allegations appearing in his affidavit and that of his witness which is not
sufficient to establish a prima facie case for charging the former with Illegal Possession of
Firearms. Even the slug depicted in the xeroxed photo copies marked as Annex "E" of the
complaint do not show that said slugs were fired from different firearms hence it can be presumed
that the same were fired from the gun of respondent Amando Ocampo an indication that during
the incident, only the latter was in possession of a firearm. 3

On 21 October 1994 petitioner filed a petition for review with the Secretary of Justice insisting
that the pieces of evidence he presented before the Provincial Prosecutor were sufficient to make
a prima facie case against private respondents and prayed that the dismissal of his complaint be
set aside. Private respondents filed their opposition thereto stating in essence that Amando’s gun
was licensed and that there was no proof other than petitioner’s self-serving statement that
Isagani had carried a firearm.

In his Resolution of 6 June 1996 the Secretary of Justice granted petitioner’s appeal and ordered
the Provincial Prosecutor of Cavite to file the corresponding charges of Illegal Possession of
Firearms against private respondents. As the Secretary of Justice held —

There is no dispute as to the fact that respondent Amando Ocampo, by his own admission, was in
possession of a firearm. His defense that it was duly licensed, however, by the records of the
Firearms and Explosives Office (FEO). Granting, however, that said firearm was duly licensed by
the Philippine National Police, no evidence was submitted to prove that he is possessed of the
necessary permit to carry the firearm outside of his residence. In other words, his possession of
the firearm, while valid at first, became illegal the moment he carried it out of his place of abode.

With regard to respondent Isagani Ocampo, his bare denial cannot overcome his positive
identification by complainant and his witnesses. Physical evidence, such as the bullet marks on
the walls of complainant’s residence, indeed strengthen the latter’s allegation that respondents
actually fired at him. The case was nevertheless dismissed on the ground of lack of evidence. This
is erroneous. In cases falling under violations of PD 1866, it is not indispensable that the firearm
used be presented in evidence as long as the possession and use thereof have been duly
established by the testimony of several witnesses. (People v. Jumanoy, 221 SCRA 333). 4

On 25 June 1996, pursuant to the Resolution of the Secretary of Justice, the Provincial Prosecutor
of Cavite filed two (2) separate Informations against Amando and Isagani Ocampo for Illegal
Possession of Firearms before the Regional Trial Court of Bacoor, Cavite, docketed as Crim. Case
No. B-96-141 and B-96-142, respectively. On 17 December 1996, private respondents filed a
Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court with a prayer for
Preliminary Injunction and Temporary Restraining Order with the Court of Appeals questioning the
Resolution of the Secretary of Justice. chanrob1es virtua1 1aw 1ibrary

In giving due course to private respondents’ petition, the Court of Appeals agreed with the
position of the Solicitor General —

A judicious examination of the records will show that there is no probable cause to hail petitioners
33
for trial for illegal possession of firearms.

The weakness of the case against petitioners is highlighted by the failure of the Information to
allege the identity of the firearms allegedly possessed by petitioners at the time of the incident.
No guns were seized or recovered from them. There is no corpus delicti. It could not therefore be
ascertained with verisimilitude that petitioners did not have the license to possess or carry guns.
Given the mutual recriminations which were generated by the incident, it would have been facile
for any of the protagonists to concoct a charge of illegal possession of firearms against their
adversary . . . In crimes involving illegal possession of firearms, the prosecution has the burden of
proving the elements thereof, viz.: The existence of the subject firearm and the fact that the
accused who owned or possessed the firearm does not have the corresponding license or permit
to possess the same. Negative allegation of the lack of a license is an essential ingredient of the
offense which the prosecution must prove. How could the people prove beyond reasonable doubt
that petitioners committed the offense of illegal possession of firearms when the firearms are not
even identified with certainty . . . 5

On the basis of the evidence on record, the Court of Appeals granted private respondents’ petition
and set aside the disputed Resolution of the Secretary of Justice. Hence, this petition.

The main issue to be resolved is whether the Court of Appeals erred in granting private
respondents’ petition and in setting aside the Resolution of the Secretary of Justice. In
determining this question, we need to address these questions: (a) Was there sufficient evidence
to warrant the filing of charges for Illegal Possession of Firearms against private respondents; and
(b) May the Court of Appeals set aside the Decision of the Secretary of Justice when the
corresponding Information has already been filed with the trial court?

The Court of Appeals found that no charges for Illegal Possession of Firearms could be filed
against private respondents for two (2) reasons: First, as to private respondent Amando Ocampo,
he had the requisite license to possess the firearm, which was established by sufficient evidence
on record. Second, as to private respondent Isagani Ocampo, there was no convincing evidence
that he was in possession of a gun during the incident involving him, his father and petitioner,
except for the eyewitness account of petitioner and one Federico San Miguel. chanrob1es virtua1 1aw 1ibrary

Indeed, the rule is well settled that in cases of Illegal Possession of Firearms, two (2) things must
be shown to exist: (a) the existence of the firearm, and (b) the fact that it is not licensed. 6
However, it should be noted that in People v. Ramos, 7 citing People v. Gy Gesiong, 8 this Court
ruled: ". . . Even if he has the license, he cannot carry the firearm outside his residence without
legal authority therefor." cralaw virtua1aw library

This ruling is obviously a reiteration of the last paragraph of Sec. 1 of PD 1866 —

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition . . . The penalty of prision mayor shall be imposed upon any person who shall carry
any licensed firearm outside his residence without legal authority therefor.

The Secretary of Justice, in his contested Resolution, thus made the following findings: Even if
Amando had the requisite license, there was no proof that he had the necessary permit to carry it
outside his residence; and Isagani’s plain denial could not overcome his positive identification by
petitioner that he carried a firearm in assaulting him. These are findings of fact supported by
evidence which cannot be disturbed by this Court.

Besides, the rulings relied upon by the Court of Appeals and private respondents deal with the
quantum of evidence needed to convict persons for Illegal Possession of Firearms. This petition
arose from a case which was still in its preliminary stages, the issue being whether there was
probable cause to hold private respondents for trial. And probable cause, for purposes of filing
criminal information, has been defined as such facts as are sufficient to engender a well-founded
belief that a crime has been committed and that respondent is probably guilty thereof. The
34
determination of its existence lies within the discretion of the prosecuting officers after conducting
a preliminary investigation upon complaint of an offended party. 9 Their decisions are reviewable
by the Secretary of Justice who may direct the filing of the corresponding information or to move
for the dismissal of the case. 10 The procedure is in no wise in the nature of a trial that will finally
adjudicate the guilt or innocence of private respondents. The requisite evidence for convicting a
person of the crime of Illegal Possession of Firearms is not needed at this point. It is enough that
the Secretary of Justice found that the facts, as presented by both petitioner and private
respondents, would constitute a violation of PD 1866. Hence, the Secretary of Justice did not
commit grave abuse of discretion in directing the filing of criminal Informations against private
respondents, and clearly, it was error for the Court of Appeals to grant private respondents’
petition for certiorari.

The Court of Appeals also took note of the fact that petitioner’s appeal to the Secretary of Justice
was filed out of time. Per DOJ Circular No. 7 dated 25 January 1990, the aggrieved party has
fifteen (15) days to appeal resolutions of, among others, the Provincial Prosecutor dismissing a
criminal complaint. Petitioner filed his appeal four (4) months after receiving the Provincial
Prosecutor’s decision dismissing his complaint. This notwithstanding, the Secretary of Justice gave
due course to the appeal. It can be surmised then that DOJ Circular No. 7, while aimed at
facilitating the expeditious resolution of preliminary investigations, does not tie the hands of the
Secretary of Justice if he thinks that injustice will result from the dismissal of the criminal
complaint when there is a good ground to file it.

Assuming arguendo that the Secretary of Justice was not able to establish probable cause to
direct the Provincial Prosecutor to file the charges of Illegal Possession of Firearms against private
respondents, the filing of the Petition for Certiorari with the Court of Appeals was not the proper
remedy for Private Respondents. It should be noted that when the Petition was filed, the
Information was already filed by the Provincial Prosecutor with the Regional Trial Court of Bacoor,
Cavite. The criminal case commenced from that time at its course would now be under the
direction of the trial court. As we held in Crespo v. Mogul 11 —

The preliminary investigation conducted by the fiscal for the purpose of determining whether a
prima facie exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in
motion the criminal action against the accused in Court . . . While it is true that the fiscal has the
quasi judicial discretion to determine whether or not a criminal case should be filed in court, once
the case had already been brought to court whatever disposition the fiscal may feel should be
proper in the case thereafter should be addressed for the consideration of the Court. The only
qualification is that the action of the Court must not impair the substantial rights of the accused,
or the right of the People to due process of law.

Whatever irregularity in the proceedings the private parties may raise should be addressed to the
sound discretion of the trial court which has already acquired jurisdiction over the case. Certiorari,
being an extraordinary writ, cannot be resorted to when there are other remedies available.
Private respondents could file a Motion to Quash the Information under Rule 117 of the Rules of
Court, or let the trial proceed where they can either file a demurrer to evidence or present their
evidence to disprove the charges against them. It is well settled that criminal prosecutions may
not be restrained or stayed by injunction, preliminary or final, subject to certain exceptions, e.g.,
when the determination of probable cause is done with grave abuse of discretion, 12 or where a
sham preliminary investigation was hastily conducted, 13 or where it is necessary for the courts to
do so for the orderly administration of justice or to prevent the use of the strong arm of the law in
an oppressive and vindictive manner. 14 None of these exceptions is present in the instant case.
Hence, the Court of Appeals erred in granting private respondents’ Petition for Certiorari and,
worse, setting aside the Resolution of the Secretary of Justice. chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the instant petition for review is GRANTED and the assailed Decision of the Court of
Appeals is REVERSED. The Resolution dated 6 June 1996 of the Secretary of Justice is
REINSTATED.

35
SO ORDERED.

Mendoza, Quisumbing and De Leon, Jr., JJ., concur.

Buena, J., took no part, concurred in CA decision.

G.R. No. 76338-39 February 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RENATO TAC-AN Y HIPOS, accused-appellant.

The Office of the Solicitor General for plaintiff-appellee. Amadeo D. Seno for accused-appellant.

FELICIANO, J.:

Accused Renato Tac-an appeals from the decision of the Regional Trial Court of Tagbilaran City, convicting him
of qualified illegal possession of a firearm and ammunition in Criminal Case No. 4007 and of murder in Criminal
Case No. 4012 and imposing upon him the penalty of death in both cases.

On 18 December 1984, appellant was charged with violation of Section 1, paragraph (2), of Presidential Decree
No. 1866, committed as follows:

That, on or about the 14th day of December 1984, in the City of Tagbilaran Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, while acting under the
influence of drugs and without any license or permit from the proper authorities, did then and
there willfully, unlawfully and feloniously have ill his possession, custody and control an
unlicensed firearm, a SMITH & WESSON Airweight caliber .38 revolver with Serial Number
359323 with Five (5) spent shells and Five (5) live ammunitions and without any justifiable cause
and with intent to kill, used the said firearm and ammunitions to shoot one Francis Ernest Escano
III hitting and inflicting upon the latter the following gunshot wounds or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS — Head & Chest (through and through);

Head Entrance — 1.4 x 2.2 cm., Left Fronto-Temporal Area; Port — 1.3 x 0.3
cm.; Right Cheek. 3.5 cm. above the right external meatus;
Chest Entrance — 0.3 x 1 cm. — Right Infrascapular Area at the level of the 7th
Intercostal Rib (Back); Exist — 0.3 cm. dia; above the right nipple;
Y-shape laceration, check at the right angle of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8

which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the
Republic of the Philippines.

Acts committed contrary to the provisions of Section 1, paragraph 2 of the Presidential Decree
No. 1866.  1

On 11 January 1985, an amended information   for murder was also filed against appellant reading as follows:
2

That, on or about the 14th day of December, 1984 in the City of Tagbilaran, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable

36
 cause and with intent to kill, evident pre-meditation treachery, while acting under the influence of
drugs, with cruelty and deliberately augmenting the suffering of the victim, did then and there
willfully, unlawfully and feloniously attack, assault and shot one Francis Ernest Escano with the
use of an unlicensed SMITH & WESSON Airweight caliber .38 revolver with Serial Number
359323 hitting and inflicting upon the latter the following gunshot wounds or injuries, to wit:

MULTIPLE GUNSHOT WOUNDS — Head and Chest (Through & Through);

Head Entrance — 14 x 2.2 cm., Left Fronto-temporal Area; Port — l.3 x 0.3 cm.,
Right Cheek, 3.5 cm., above the right external meatus;
Chest Entrance — 0.3 x 1 cm. — right Infrascapular Area at the level of the 7th
Inter-Costal Rib (back); exit — 0.3 cm. dia; above the right nipple
Y-shape laceration, cheek at the angle of the mouth, Right
Dimensions: 3 x 1.2 cm. x 1.8.

which gunshot wounds or injuries directly caused his death, to the damage and prejudice of the
heirs of the deceased namely: Judge & Mrs. Francisco Rey H. Escano, in the amount to be
proved during the trial of the case.

Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, in relation to
Section 17 of Batas Pambansa Blg. 179, with the qualifying aggravating circumstances of evident
premeditation, treachery and acting under the influence of dangerous drugs and cruelty.

Appellant entered a plea of not guilty in both cases. The two (2) criminal cases were consolidated upon motion
of the prosecution and tried jointly. On 31 July 1986, the trial court rendered a decision   convicting appellant
3

under both informations. The dispositive portion of the decision read as follows:

WHEREFORE, all the foregoing premises considered, decision is hereby rendered in Criminal
Case No. 4007 finding the accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of
Illegal Possession of Firearms and Ammunitions qualified with Murder under Section 1,
paragraphs 1 and 2 of Presidential Decree No. 1866 and hereby sentences said Renato Tac-an
y Hipos to suffer the penalty of DEATH. Further, decision is also rendered in Criminal Case No.
4012 finding the same accused Renato Tac-an y Hipos GUILTY beyond reasonable doubt of
Murder under Article 248 of the Revised Penal Code, in relation to Batas Pambansa Blg. 179 and
P.D. 1866. Appreciating the aggravating circumstance of evident premeditation (treachery used
to qualify the crime to murder) and the special aggravating circumstances of acting while under
the influence of dangerous drugs and with the use of an unlicensed firearm and with insult to a
person in authority and there being no mitigating circumstance to offset them, and sentences the
said Renato Tac-an y Hipos to suffer the penalty of DEATH. The accused is likewise ordered to
indemnify the heirs of the deceased Francis Ernest Escano in the amount of THIRTY
THOUSAND PESOS (P30,000.00); to pay actual compensatory damages in the amount of ONE
HUNDRED EIGHT THOUSAND THREE HUNDRED TEN PESOS (P108,310.00); to pay moral
damages to Judge Francisco Escano, Jr., the sum of ONE HUNDRED THOUSAND PESOS
(P100,000.00) and to Mrs. Lydia Escano the sum of ONE HUNDRED THOUSAND PESOS
(P100,000.00) for the mental anguish and suffering each experienced because of the death of
Francis Ernest. All such amount shall earn legal interest from the time this decision shall become
final and executory until fully satisfied. The accused shall also pay the costs. SO ORDERED.

Immediately after promulgation of the decision, appellant signified his intention to appeal to this Court, although
the same was subject to automatic review by this Court.

In his brief, appellant assigned the following as errors allegedly committed by the trial court:

I. The lower court erred in believing the prosecution's version of the case instead of according full
faith and credence to the defendant's version.

II. The trial court erred in not holding that Renato Tac-an was justified in shooting the deceased.

III. The trial court erred in not holding that in (sic) the least the defendant acted in incomplete
self-defense in shooting the deceased.

37
 IV. The trial court erred in not holding that P.D. 1866 is inapplicable to the defendant inasmuch
as said decree was enforceable only during the existence of the Martial Law Regime.

V. The trial court erred in not holding that the defendant was placed twice in jeopardy for having
been prosecuted for violation of P.D. 1866 despite his being prosecuted for murder in an
information which alleges that the accused used an unlicensed firearm in killing the deceased.

VI. The trial court erred in not adjudging the defendant innocent of murder.

From the record, the facts may be collated and summarized as follows:

Appellant Renato Tac-an, then eighteen (18) years and seven (7) months of age, and the deceased Francis
Ernest Escano III, fifteen (15) years old, were classmates in the third year of high school of the Divine Word
College in Tagbilaran City. They were close friends, being not only classmates but also members of the same
gang, the Bronx gang. Renato had been to the house where Francis and his parents lived, on one or two
occasions. On those occasions, Francis' mother noticed that Renato had a handgun with him. Francis was then
advised by his mother to distance himself from Renato.  4

Francis withdrew from the Bronx gang. The relationship between Renato and Francis turned sour. Sometime in
September 1984, Renato and Francis quarrelled with each other, on which occasion Francis bodily lifted Arnold
Romelde from the ground. Arnold was friend and companion to Renato. The quarrel resulted in Renato and
Francis being brought to the high school principal's office. The strained relationship between the two (2)
erstwhile friends was aggravated in late November 1984 when Francis teamed that Renato, together with other
members of the Bronx gang, was looking for him, apparently with the intention of beating him up. Further
deterioration of their relationship occurred sometime in the first week of December 1984, when graffiti appeared
on the wall of the third year high school classroom and on the armrest of a chair in that classroom, deprecating
the Bronx gang and describing Renato as "bayot" (homosexual)   Renato attributed the graffiti to Francis.
5

At about 2:00 o'clock in the afternoon of 14 December 1984, Renato entered Room 15 of the high school
building to attend his English III class. Renato placed his scrapbook prepared for their Mathematics class on his
chair, and approached the teacher, Mrs. Liliosa Baluma, to raise a question. Upon returning to his chair, he
found Francis sitting there, on the scrapbook. Renato was angered by what he saw and promptly kicked the
chair on which Francis was seated. Francis, however, explained that he had not intentionally sat down on
Renato's scrapbook. A fistfight would have ensued but some classmates and two (2) teachers, Mrs. Baluma and
Mr. Damaso Pasilbas, intervened and prevented them from assaulting each other. After the two (2) had quieted
down and apparently shaken hands at the instance of Mrs. Baluma, the latter resumed her English III class.
Francis sat on the last row to the extreme right of the teacher while Renato was seated on the same last row at
the extreme left of the teacher. While the English III class was still going on, Renato slipped out of the classroom
and went home to get a gun. He was back at the classroom approximately fifteen (15) minutes later.  6

The Mathematics class under Mr. Damaso Pasilbas scheduled for 3:00 p.m. had just started in Room 15 when
Renato suddenly burst into the room, shut the door and with both hands raised, holding a revolver, shouted
"Where is Francis?" Upon sighting Francis seated behind and to the light of student Ruel Ungab, Renato fired at
Francis, hitting a notebook, a geometry book and the armrest of Ruel's chair. Francis and Ruel jumped up and
with several of their classmates rushed forward towards the teacher's platform to seek protection from their
teacher. Renato fired a second time, this time hitting the blackboard in front of the class. Francis and the other
students rushed back towards the rear of the room. Renato walked towards the center of the classroom and fired
a third time at Francis, hitting the concrete wall of the classroom. Francis and a number of his classmates rushed
towards the door, the only door to and from Room 15. Renato proceeded to the teacher, s platform nearest the
door and for the fourth time fired at Francis as the latter was rushing towards the door. This time, Francis was hit
on the head and he fell on the back of Ruel and both fell to the floor. Ruel was pulled out of the room by a friend;
Francis remained sprawled on the floor bleeding profusely.  7

Renato then went out of Room 15, and paced between Rooms 14 and 15. A teacher, Mr. Pablo Baluma,
apparently unaware that it was Renato who had gunned down Francis, approached Renato and asked him to
help Francis as the latter was still alive inside the room. Renato thereupon re-entered Room 15, closed the door
behind him, saying: "So, he is still alive. Where is his chest?" Standing over Francis sprawled face down on the
classroom floor, Renato aimed at the chest of Francis and fired once more. The bullet entered Francis' back
below the right shoulder, and exited on his front chest just above the right nipple. 
8

38
Renato then left with two (2) remaining students and locked Francis alone inside Room 15. Renato proceeded to
the ground floor and entered the faculty room. There, he found some teachers and students and ordered them to
lock the door and close the windows, in effect holding them as hostages. He also reloaded his gun with five (5)
bullets. After some time, a team of Philippine Constabulary troopers led by Capt. Larino Lazo arrived and
surrounded the faculty room. With a hand-held public address device, Capt. Lazo called upon Renato to
surrender himself Renato did not respond to this call. Renato's brother approached Capt. Lazo and volunteered
to persuade his brother to give up. Renato's father who, by this time had also arrived, pleaded with Renato to
surrender himself Renato then turned over his gun to his brother through an opening in the balustrade of the
faculty room. Capt. Lazo took the gun from Renato's brother, went to the door of the faculty room, entered and
placed Renato under arrest.  9

Meantime, as soon as Renato left Room 15, some teachers and students came to rescue Francis but could not
open the door which Renato had locked behind him. One of the students entered the room by climbing up the
second floor on the outside and through the window and opened the door from the inside. The teachers and
students brought Francis down to the ground floor from whence the PC soldiers rushed him to the Celestino
Gallares Memorial Hospital.   Francis died before reaching the hospital.
10

Capt. Lazo brought Renato to the PC Headquarters at Camp Dagohoy, Tagbilaran City. The officer deposited
the revolver recovered from Renato which was an Airweight Smith and Wesson .38 caliber revolver, with Serial
No. 359323, as well as the five (5) live bullets removed from the said revolver, and the five (5) empty cartridges
which Renato had turned over to him. Ballistic examination conducted by Supervising Ballistician, Artemio
Panganiban, National Bureau of Investigation, Cebu, showed that the empty cartridge cases had been fired from
the revolver recovered from Renato.  11

Appellant at the outset assails the trial court for having believed the prosecution's version of the facts instead of
the version offered by the appellant. The trial court took into account, inter alia, the positive and direct testimony
of:

1. Mrs. Liliosa Baluma who testified as to, among other things, the events which took place inside
her English III classroom immediately before the shooting;

2. Ruel Ungab — a fifteen (15) year old classmate of Renato and Francis, who had fallen on the
floor with Francis when the latter was finally hit by Renato;

3. Damaso Pasilbas — the Mathematics teacher who was holding his class when Renato had
burst into Room 15 and started firing at Francis; and

4. Napoleon Jumauan — another sixteen (16) year old, classmate of Renato and Francis who
was inside the classroom when Renato had started firing at Francis and who was only about a
foot away from the head of Francis when Renato, having re-entered Room 15, had fired at
Francis as the latter was sprawled on the floor of the classroom.

After careful examination of the record, we find no reason to disagree with the conclusion of the trial court that
Renato had indeed shot and killed Francis under the circumstances and in the manner described by these
witnesses.

1. The claim of self-defense.

Renato claimed that he was acting in self-defense, or at least in incomplete self-defense, when he shot Francis.
For a claim of self-defense to be sustained, the claimant must show by clear and convincing evidence that the
following requisites existed:

a) unlawful aggression on the part of the victim;

b) reasonable necessity of the means employed by the accused to repel the aggression; and
c) lack of sufficient provocation on the part of the accused. 12

Testifying in his own behalf, Renato said that a few minutes before the end of Mrs. Baluma's English III class,
Francis had approached him:

39
 (Atty. Seno, Defense Counsel)
Q: How did it happened (sic) that you had a conversation with Francis?
(Renato)
A: While the class was going on, Mrs. Baluma was writing on the blackboard.
Q: Then what happened?
A: While our teacher was writing on the blackboard Francis suddenly got near
me.
Q: And what happened when Francis approached you?
A: He said, 'So you are brave now you had a (sic) guts to fight against me.'
Q: And what else did he say?
A: He said, 'Go home, get your firearm because I will go home to get a gun.'
Q: Was that all that he told you?
A: He further said, 'You go home get your firearm, if you won't go home and get a
gun, I will go to your place and kill you including your parents, brothers and
sisters.'
Q: And after that where did Francis go?
A: Before the bell rang he went ahead.  13

(Emphasis supplied)

We note at the outset that there was no evidence before the Court, except Renato's own testimony, that Francis
had uttered the above statements attributed to him by Renato. Although there had been about twenty-five (25)
other students, and the teacher, in the classroom at the time, no corroborating testimony was offered by the
defense. In the second place, assuming (arguendo merely) that Francis had indeed made those statements,
such utterances cannot be regarded as the unlawful aggression which is the first and most fundamental
requirement of self-defense. Allegedly uttered in a high school classroom by an obviously unarmed Francis,
such statements could not reasonably inspire the "well grounded and reasonable belief" claimed by Renato that
"he was in imminent danger of death or bodily harm."   Unlawful aggression refers to an attack that has actually
14

broken out or materialized or at the very least is clearly imminent: it cannot consist in oral threats or a merely
threatening stance or posture.   Further as pointed out by the Solicitor General, Francis was obviously without a
15

firearm or other weapon when Renato returned and burst into Room 15 demanding to know where Francis was
and forthwith firing at him repeatedly, without the slightest regard for the safety of his other classmates and of
the teacher. There being no unlawful aggression, there simply could not be self-defense whether complete or
incomplete,   and there is accordingly no need to refer to the other requirements of lawful self-defense.
16

2. The claim that P.D. No. 1866 is inapplicable.

As pointed out at the outset, appellant was charged with unlawful possession of an unlicensed firearm, a Smith
and Wesson Airweight.38 caliber revolver with five (5) spent bullets and five (5) live ones and with having used
such firearm and ammunition to shoot to death Francis Ernest Escano III, in violation of Section 1 of P.D. No.
1866.

Section 1 of P.D. No. 1866 provides, in relevant part, that:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed. (Emphasis supplied)

Appellant urges that P.D. No. 1866 is inapplicable to him "considering that the reason for its [P.D. No. 1866]
issuance no longer exists." He argues that P.D. No. 1866 was enforceable only during the existence of martial
law, and that when martial law was "lifted in 1979," the reason for the "existence" of P.D. No. 1866 faded away,
with the result that the "original law on firearms, that is, Section 2692 of the [Revised] Administrative Code,
together with its pre-martial law amendments, came into effect again thereby replacing P.D. No. 1866."  17

40
There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it was
intended to remain in effect only for the duration of the martial law imposed upon the country by former President
Marcos. Neither does the statute contain any provision that so prescribes its lapsing into non-enforceability upon
the termination of the state or period of martial law. On the contrary, P.D. No. 1866 by its own terms purported to
"consolidate, codify and integrate" all prior laws and decrees penalizing illegal possession and manufacture of
firearms, ammunition and explosives in order "to harmonize their provisions as well as to update and revise
certain provisions and prior statutes "in order to more effectively deter violators of the law on firearms,
ammunitions and explosives."   Appellant's contention is thus without basis in fact.
18

3. The claim of double jeopardy.

It is also contended by appellant that because he had already been charged with illegal possession of a firearm
and ammunition in Criminal Case No. 4007, aggravated by the use of such unlicensed firearm to commit a
homicide or murder, he was unconstitutionally placed in jeopardy of punishment for the second time when he
was charged in Criminal Case No. 4012 with murder "with the use of an unlicensed [firearm]," in violation of
Article 248 of the Revised Penal Code in relation to Section 17 of B.P. Blg. 179.

It is elementary that the constitutional right against double jeopardy protects one against a second or later
prosecution for the same offense, and that when the subsequent information charges another and different
offense, 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 an unlicensed firearm penalized under a special statute, while the offense charged in Criminal
Case No. 4012 was that of murder punished under the Revised Penal Code. It would appear self-evident that
these two (2) offenses in themselves are quite different one from the other, such that in principle, the subsequent
filing of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited second
jeopardy.

We note that the information in Criminal Case No. 4007 after charging appellant with unlawful possession of an
unlicensed firearm and ammunition, went on to state that said firearm and ammunition had been used to shoot
to death Francis Ernest Escaño III. We note also that the amended information in Criminal Case No. 4012 after
charging appellant with the unlawful killing of Francis Ernest Escaño III, stated that the killing had been done
with the use of an unlicensed firearm. We believe these additional allegations in the two (2) informations
did not have the effect of charging appellant with having committed the same offense more than once.

However, in sentencing Renato to suffer the penalty of death for the crime of murder, the trial court did take into
account as a "special aggravating circumstance" the fact that the killing of Francis had been done "with the use
of an unlicensed firearm." In so doing, we believe and so hold, the trial court committed error. There is no law
which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under
an information charging homicide or murder, the fact that the death weapon was an unlicensed
firearm cannot be used to increase the penalty for the second offense of homicide or murder to death
(or reclusion perpetua under the 1987 Constitution). The essential point is that the unlicensed character or
condition of the instrument used in destroying 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 Code.  19

In contrast, under an information for unlawful possession (or manufacture, dealing in, acquisition or

disposition) of a firearm or ammunition, P.D. No. 1866 authorizes the increase of the imposable penalty for
unlawful possession or manufacture, etc. of the unlicensed firearm where such firearm was used to destroy
human life. Although the circumstance that human life was destroyed with the use of the unlicensed firearm is
not an aggravating circumstance under Article 14 of the Revised Penal Code, it may still be taken into account to
increase the penalty to death (reclusion perpetua, under the 1987 Constitution) because of the explicit provisions
of P.D. No. 1866. As noted earlier, the unlawful possession of an unlicensed firearm or ammunition is an offense
punished under a special law and not under the Revised Penal Code.

4. The claim that there was no treachery.

Appellant contends that there was no treachery present because before any shot was fired, Renato had shouted
"where is Francis?" Appellant in effect suggests his opening statement was a warning to Francis and that the
first three (3) shots he had fired at Francis were merely warning shots. Moreover, building upon his own
testimony about the alleged threat that Francis had uttered before he (Renato) left his English III class to go
home and get a gun, appellant argues that Francis must have anticipated his return and thus had sufficient time
41
to prepare for the coming of the appellant.   Appellant's contention, while ingenious, must be rejected. The trial
20

court made a finding of treachery taking explicit account of the following factors:

1. Room 15 of the Divine Word College High School Department Tagbilaran City, is situated in
the second floor of the building. It is a corner room and it has only one (1) door which is the only
means of entry and exit;

2. At the time of the attack, the deceased was seated on his chair inside his classroom and was
writing on the armrest of his chair and also talking to Ruel Ungab and while their teacher, Mr.
Damaso Pasilbas was checking the attendance. The deceased was not aware of any impending
assault neither did he have any means to defend himself;

3. The accused used an airweight Smith & Wesson .38 caliber revolver in shooting to death the
defenseless and helpless Francis Ernest Escaño;

4. The attack was so sudden and so unexpected. the accused consciously conceived that mode
of attack;

5. The accused fired at Francis again and again and did not give him a chance to defend himself.
After the deceased was hit on the head and fell to the floor while he was already sprawled and
completely defenseless the accused fired at him again and the deceased was hit on the chest;

6. The deceased was not armed. He was totally defenseless. He was absolutely not aware of
any coming attack.  21

The Court also pointed out that Renato must have known that Francis while inside Room 15 had no means of
escape there being only one (1) door and Room 15 being on the second floor of the building. Renato in effect
blocked the only exit open to Francis as he stood on the teacher's platform closest to the door and fired as
Francis and Ruel sought to dash through the door. Renato's question "where is Francis?" cannot reasonably be
regarded as an effort to warn Francis for he shot at Francis the instant he sighted the latter, seated and talking to
Ruel Ungab. That Renato fired three (3) shots before hitting Francis with the fourth shot, can only be ascribed to
the indifferent markmanship of Renato and to the fact that Francis and the other students were scurrying from
one part of the room to the other in an effort to evade the shots fired by Renato. The cumulative effect of the
circumstances underscored by the trial court was that the attack upon Francis had been carried out in a manner
which disabled Francis from defending himself or retaliating against Renato. Finally, the circumstance that
Renato, having been informed that Francis was still alive, re-entered Room 15 and fired again at Francis who lay
on the floor and bathed with his own blood, manifested Renato's conscious choice of means of execution which
directly and especially ensured the death of his victim without risk to himself.   We are compelled to agree with
22

the trial court that treachery was here present and that, therefore, the killing of Francis Ernest Escaño III was
murder.

5. The claim that there was no evident premeditation.

The trial court also found the presence of evident premeditation and appreciated the same as a generic
aggravating circumstance. Here, it is the urging of the appellant that the requisites of evident premeditation had
not been sufficiently shown. In order that evident premeditation may be taken into account, there must be proof
of (a) the time when the offender formed his intent to commit the crime; (b) an action manifestly indicating that
the offender had clung to his determination to commit the crime; and (c) of the passage of a sufficient interval of
time between the determination of the offender to commit the crime and the actual execution thereof, to allow
him to reflect upon the consequences of his act.   The defense pointed out that barely fifteen (15) minutes had
23

elapsed from the time Renato left his English III class and the time he returned with a gun. While there was
testimony to the fact that before that fatal day of 14 December 1984, anger and resentment had welled up
between Francis and Renato, there was no evidence adequately showing when Renato had formed the intention
and determination to take the life of Francis. Accordingly, we must discard evident premeditation as an
aggravating circumstance.

6. The claim that the killing was not done under the influence of a dangerous drug.

Section 17 of B.P. Blg. 179 which was promulgated on 2 March 1982 provides as follows:

42
 SEC. 17. The provisions of any law to the contrary notwithstanding, when a crime is committed
by an offender who is under the influence of dangerous drugs, such state shall be considered as
a qualifying aggravating circumstance in the definition of a crime and the application of the
penalty provided for in the Revised Penal Code.

The trial court found that Francis was killed by Renato while the later was under the influence of a dangerous
drug, specifically marijuana, and took that into account as a "special aggravating circumstance". No medical
evidence had been submitted by the prosecution to show that Renato had smoked marijuana before gunning
down Francis. Fourteen (14) days had elapsed after December 14, 1984 before Renato was medically examined
for possible traces of marijuana; the results of the examination were negative. Defense witness Dr. Rogelio
Ascona testified that in order to have a medically valid basis for determining the presence of marijuana in the
human system, the patient must be examined within twenty-four (24) hours from the time he is supposed to have
smoked marijuana.   The prosecution had presented Orlando Balaba, a student at the Divine Word College,
24

High School Department, who testified that he found Renato and one Jaime Racho inside the men's room of the
High School Department sucking smoke from a hand-rolled thing that look like a cigarette, that he had asked
Renato what that was and that Renato had replied damo (marijuana).   While the testimony of Orlando Balaba
25

was corroborated by two (2) other prosecution witnesses, we believe that Orlando Balaba's testimony was
incompetent to show that what Renato and Jaime Racho were smoking inside the men's room was indeed
marijuana. It was pointed out by apellant that Orlando Balaba had never smoked nor smelled marijuana.

In the absence of medical evidence, the Court took into account certain detailed factors as circumstantial
evidence supporting the testimony of Orlando Balaba. These circumstances were:

The circumstance of place where the killing was committed, the circumstance of the manner of
the attack, the circumstance of holding hostage some teachers and students inside the faculty
room, the circumstance of terrifying an entire school, the circumstance that sitting on a
scrapbook is too insignificant as to arouse passion strong enough to motivate a killing, are
circumstantial evidences that gave the court no room for doubt that prosecution witnesses
Orlando Balaba, Benjamin Amper and Allan de la Serna truthfully told the court that they saw the
accused smoking marijuana inside the comfort room at 1:45 in the afternoon of December 14,
1984. ... . 
26

The above circumstances pointed to by the trial court may be indicative of passionate anger on the part of
Renato; we do not believe that they necessarily show that Renato had smoked marijuana before entering his
English III class. In the absence of competent medical or other direct evidence of ingestion of a dangerous drug,
courts may be wary and critical of indirect evidence, considering the severe consequences for the accused of a
finding that he had acted while under the influence of a prohibited drug. The Court considers that the evidence
presented on this point was simply inadequate to support the ruling of the trial court that Renato had shot and
killed Francis while under the influence of a prohibited drug.

7. The claim that appellant had voluntarily surrendered.

Appellant contends that he had voluntarily surrendered and that the trial court should have considered that
mitigating circumstance in his favor. The trial court did not, and we consider that it correctly refused to do so.
Firstly, Renato surrendered his gun, not himself,   by handing over the weapon through the balustrade of the
27

faculty room. Secondly, he surrendered the gun to his brother, who was not in any case a person in authority nor
an agent of a person in authority.   Thirdly, Renato did not surrender himself he was arrested by Capt. Lazo. The
28

fact that he did not resist arrest, did not constitute voluntary surrender.   Finally, if it be assumed that Renato
29

had surrendered himself, such surrender cannot be regarded as voluntary and spontaneous. Renato was holed
up in the faculty room, in effect holding some teachers and students as hostages. The faculty room was
surrounded by Philippine Constabulary soldiers and there was no escape open to him. He was not entitled to the
mitigating circumstance of voluntary surrender.

8. Whether or not the crime was committed in contempt of or with insult to the public authorities.

The trial court held that the shooting to death of Francis had been done "in contempt of or with insult to the
public authorities:

43
 Under Republic Act 1978, as amended, a teacher of a public or private school is considered a
person in authority. The fact that Mr. Damaso Pasilbas, the teacher in mathematics, was already
checking the attendance did not deter the accused from pursuing his evil act, The accused
ignored his teacher's presence and pleas. Not yet satisfied with the crime and terror he had done
to Francis and the entire school, the accused entered the faculty room and held hostage the
teachers and students who were inside that room. To the court, this act of the accused was an
insult to his teachers and to the school, an act of callus disregard of other's feelings and safety
and completely reprehensible.  30

We believe the trial court erred in so finding the presence of a generic aggravating circumstance. Article 152 of
the Revised Penal Code, as amended by Republic Act No. 1978 and Presidential Decree No. 299, provides as
follows:

Art. 152. Persons in authority and agents of persons in authority. — Who shall be deemed as
such. — In applying the provisions of the preceding and other articles of this Code, any person
directly vested with jurisdiction, whether as an individual or as a member of some court or
government corporation, board, or commission, shall be deemed a person in authority. A barrio
captain and a barangay chairman shall also be deemed a person in authority.

A person who by direct provision of law or by election or by appointment by competent authority,

is charged with the maintenance of public order and the protection and security of life and
property, such as a barrio councilman, barrio policeman and barangay leader and any person
who comes to the aid of persons in authority, shall be deemed an agent of a person in authority.

In applying the provisions of Articles 148 and 151 of this Code, teachers, professors and persons
charged with the supervision of public or duly recognized private schools, colleges and
universities, and lawyers in the actual performance of their professional duties or on the occasion
of such performance, shall be deemed persons in authority. (As amended by P.D. No. 299,
September 19, 1973 and Batas Pambansa Blg. 873, June 12, 1985).

Careful reading of the last paragraph of Article 152 will show that while a teacher or professor of a public or
recognized private school is deemed to be a "person in authority," such teacher or professor is so deemed only
for purposes of application of Articles 148 (direct assault upon a person in authority), and 151 (resistance and
disobedience to a person in authority or the agents of such person) of the Revised Penal Code. In marked
contrast, the first paragraph of Article 152 does not identify specific articles of the Revised Penal Code for the
application of which any person "directly vested with jurisdiction, etc." is deemed "a person in authority."
Because a penal statute is not to be given a longer reach and broader scope than is called for by the ordinary
meaning of the ordinary words used by such statute, to the disadvantage of an accused, we do not believe that a
teacher or professor of a public or recognized private school may be regarded as a "public authority" within the
meaning of paragraph 2 of Article 14 of the Revised Penal Code,   the provision the trial court applied in the
31

case at bar.

ACCORDINGLY, the decision of the trial court dated 31 July 1986 is hereby MODIFIED in the following manner
and to the following extent only:

1. In Criminal Case No. 4007, appellant shall suffer the penalty of reclusion perpetua;

2. In Criminal Case No. 4012 — (a) the aggravating circumstances of evident premeditation and
of having acted with contempt of or insult to the public authorities shall be DELETED and not
taken into account; and (b) the special aggravating circumstances of acting while under the
influence of dangerous drugs and with the use of an unlicensed firearm shall similarly be
DELETED and not taken into account. There being no generic aggravating nor mitigating
circumstances present, the appellant shall suffer the penalty of reclusion perpetua.

The two (2) penalties of reclusion perpetua shall be served successively in accordance with the provisions of
Article 70 of the Revised Penal Code. As so modified, the decision of the trial court is hereby AFFIRMED. Costs
against appellant.

SO ORDERED.

44
Fernan, C.J., Gutierrez, Jr., Bidin and Cortes, JJ., concur.

G.R. No. 83341               January 30, 1990

ARNEL P. MISOLAS, petitioner,
vs.
HON. BENJAMIN V. PANGA, as Judge of RTC Branch 33, Cadlan Pili, Camarines Sur and PEOPLE OF
THE PHILIPPINES, respondents.
Soliman M. Santos, Jr. counsel de oficio for petitioner.

CORTES, J.:

This petition for certiorari ascribes grave abuse of discretion amounting to lack or excess of jurisdiction to the
respondent judge who denied petitioner's motion to quash the information filed against him as well as his motion
for reconsideration.

The case brings into focus our laws on subversion and subversion-related offenses.

The controversy arose from the following facts:

After receiving information from an unidentified informant that members of the New People's Army (NPA) were
resting in a suspected "underground house" in Foster Village, Del Carmen, Pili, Camarines Sur, elements of the
Philippine Constabulary (PC) raided said house in the early morning of August 8, 1987. Three persons were
inside the house, petitioner and two women known by the aliases "Ka Donna" and "Ka Menchie" but the women
were able to escape in the confusion during the raid. The house was searched and the raiders found in a red
bag under a pillow allegedly used by petitioner a .20 gauge Remington shotgun and four live rounds of
ammunition. Petitioner was arrested and brought to the PC headquarters. On September 4, 1987, an information
charging petitioner with illegal possession of firearms and ammunition under Presidential Decree No. 1866 was
filed by the provincial fiscal. The information alleged that the firearm and ammunition were used in furtherance of
subversion so as to qualify the offense under the third paragraph of Section 1 of P.D. No. 1866, which provides:

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of death shall be imposed.

Upon arraignment, the petitioner, with the assistance of counsel de oficio pleaded "not guilty" to the charge.
However, a few days later, the same counsel (also his counsel in this petition) filed a motion to withdraw the plea
on the ground that there was basis for the filing of a motion to quash. Respondent judge gave petitioner time to
file a motion to quash.

Petitioner filed a motion to quash on the following grounds:

(1) that the facts charged do not constitute an offense because the information does not charge the
proper offense since from the allegations the offense that may be charged is either subversion or
rebellion; and

45
 (2) that the trial court had no jurisdiction over the person of petitioner because of violations of his
constitutional rights, i.e, his arrest and the seizure of the firearm and ammunition were illegal.

Respondent judge denied the motion to quash for lack of merit in an order dated January 7, 1988. Petitioner
moved for reconsideration, but such was denied on February 15, 1988.

Hence, this petition.

1. The petition, reiterating the grounds alleged in the motion to quash, centers on the argument that the
third paragraph of Section 1 of P.D. No. 1866, which penalizes illegal possession of firearms and
ammunition committed in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection, or subversion, should be stricken down as unconstitutional. In the words of petitioner:

Unconstitutional because it is violative of the due process clause, particularly substantive due process
against arbitrary laws. Arbitrary because it disregards the overwhelming weight of national as well as
international laws and jurisprudence behind the Hernandez (99 Phil. 515) and Geronimo (100 Phil. 90)
rulings on the doctrine of absorption of common crimes in rebellion.

If murder is absorbed in rebellion, with more reason should illegal possession of firearms be absorbed in
rebellion and for that matter subversion.

While it is true that subversion is an entirely different and distinct crime from rebellion, both are
recognized as political offenses. So much so that in the Guidelines for the Grant of Pardon to Political
Detainees/Prisoners, the latter are defined as those charged detained or imprisoned for rebellion or
subversion, among others.

The idea of absorption of illegal possession of firearms in subversion is also bolstered by the fact that in
Republic Act 1700, as amended, subversion or its penalty is qualified when the subversive "takes up
arms against the Government."

It cannot be said that P.D. No. 1866 is an exception to the Hernandez and Geronimo rulings. On the

contrary, it is the other way around by virtue of the overwhelming weight of national as well as
international laws and jurisprudence which form part of the law and legal system of the land.

x x x           x x x          x x x

... an armed subversive or rebel is to be distinguished from a common criminal illegally possessing a
firearm. The former should be charged with subversion or rebellion, absorbing his illegal possession of
firearm. His illegal possession of firearm is not the main thing. It is only incidental to his involvement in
subversion or rebellion. (Petition, pp. 5-6; Rollo, pp. 5-6).

Republic Act No. 1700, as amended, provides in Section 4 that "if such member [of the Communist Party of the
Philippines and/or its successor or of any subversive association] takes up arms against the Government, he
shall be punished by prision mayor to reclusion perpetua with all the accessory penalties provided therefor in the
Revised Penal Code." Thus, given the particular facts of the case, petitioner could be charged either under P.D.
No. 1866 or R.A. No. 1700. But as bluntly pointed out by petitioner:

. . . It is a matter of public knowledge that the military has even admitted its policy or practice of charging
armed subversives or rebels with "qualified" illegal possession of firearms instead of subversion or
rebellion for two reasons: (1) the former is easier to prosecute than the latter, and (2) the former has a
higher penalty than the latter. [Petition, p. 6; Rollo, p. 6].

Undeniably, it is easier to prove that a person has unlawfully possessed a firearm and/or ammunition under P.D.
No. 1866 than to establish that he had knowingly, wilfully and by overt acts affiliated himself with, became or
remained a member of the Communist Party of the Philippines and/or its successor or of any subversive
organization under R.A. No. 1700, as conviction under the latter "requires that membership must be knowing or
active, with specific intent to further the illegal objectives of the Party' [People v. Ferrer, G.R. Nos. L-32613-14,
December 27, 1972, 48 SCRA 382].

46
However, that the same act may be penalized under two different statutes with different penalties, even if
considered highly advantageous to the prosecution and onerous to the accused, will not necessarily call for the
invalidation of the third paragraph of Section 1 of P.D. No. 1866 which provides for the higher penalty.

Neither would the doctrines enunciated by the Court in Hernandez and Geronimo, and People v. Rodriguez [107
Phil. 659] save the day for petitioner.

In Hernandez, the accused were charged with the complex crime of rebellion with murder, arson and robbery
while in Geronimo, the information was for the complex crime of rebellion with murder, robbery and kidnapping.
In those two cases the Court held that aforestated common crimes cannot be complexed with rebellion as these
crimes constituted the means of committing the crime of rebellion. These common crimes constituted the acts of
"engaging in war" and "committing serious violence" which are essential elements of the crime of rebellion [See
Arts. 134-135, Revised Penal Code] and, hence, are deemed absorbed in the crime of rebellion. Consequently,
the accused can be held liable only for the single crime of rebellion.

On the other hand, in Rodriguez, the Court ruled that since the accused had already been charged with
rebellion, he can no longer be charged for illegal possession of firearms for the same act of unauthorized
possession of firearm on which the charge of rebellion was based, as said act constituted the very means for the
commission of rebellion. Thus, the illegal possession of the firearm was deemed absorbed in the crime of
rebellion.

However, in the present case, petitioner is being charged specifically for the qualified offense of illegal
possession of firearms and ammunition under P.D. 1866. HE IS NOT BEING CHARGED WITH THE COMPLEX
CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS HE BEING
SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the
rulings of the Court in Hernandez, Geronimo and Rodriquez find no application in this case.

Even the dictum in Hernandez that,

... national, as well as international, laws and jurisprudence overwhelmingly favor the proposition that
common crimes, perpetrated in furtherance of a political offense, are divested of their character as
"common" offenses and assume the political complexion of the main crime of which they are mere
ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed
with the crime, to justify the imposition of the greater penalty. [At 541.]

which petitioner relies on, cannot find application in this case considering that the Legislature had deemed it fit to
provide for two distinct offenses: (1) illegal possession of firearms qualified by subversion (P.D. No. 1866) and
(2) subversion qualified by the taking up of arms against the Government (R.A. No. 1700), which the Legislature
has the power to do. The practical result of this may be harsh or it may pose grave difficulty on an accused in
instances similar to those that obtain in the present case, but the wisdom of the Legislature in the lawful exercise
of its power to enact laws is something that the Court cannot inquire into as it would be in derogation of the
principle of separation of powers. In the words of Chief Justice Fernando:

x x x           x x x          x x x

6. Nor could such a provision be nullified on the allegation that it constitutes "an insult to the personal
integrity and official dignity" of public officials. On its face, it cannot thus be stigmatized. As to its being
unnecessary, it is well to remember that this Court, in the language of Justice Laurel, "does not pass
upon questions of wisdom, justice or expediency of legislation." As expressed by Justice Tuazon: "It is
not the province of the courts to supervise legislation and keep it within the bounds of propriety and
common sense. That is primarily and exclusively a legislative concern." There can be no objection then
to the observation of Justice Montemayor: "As long as laws do not violate any Constitutional provision,
the Courts merely interpret and apply them regardless of whether or not they are wise or salutary." For
they, according to Justice Labrador, "are not supposed to override legitimate policy and ..., never inquire
into the wisdom of the law.

It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that
only congressional power or competence, not the wisdom of the action taken, may be the basis for
declaring a statute invalid. That is as it ought to be. The principle of separation of powers has in the main

47
 wisely allocated the respective authority of each department and confined its jurisdiction to such a
sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the
discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule
of law, as there ought to be, the last offender should be the courts of justice, to which rightly litigants
submit their controversy precisely to maintain unimpaired the supremacy of legal norms and
prescriptions. The attack on the validity of the challenged provisions likewise insofar as there may be
objections, even if valid and cogent, on its wisdom cannot be sustained. [Morfe v. Mutuc, G.R. No. L-
2038 id. January 31, 1968, 22 SCRA 424, 450-451].

Then, that P.D. No. 1866 was enacted by deposed former President Marcos (pursuant to his law-making powers
under the 1973 Constitution) is not by itself a legal argument for its invalidation. The 1987 Constitution expressly
provides that "[a]ll existing laws, decrees, executive orders, proclamations, letters of instruction, and other
executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or
revoked." [Art. XVIII, Sec. 3].

The remedy lies with the present Legislature to correct the situation through remedial legislation if it finds a
failure of logic and reason in the existing statutes on political offenses.

. . . If remedial measures are deemed necessary, let Congress provide the same. Courts have no
authority to grant relief against the evils that may result from the operation of unwise or imperfect
legislation, unless its flaw partakes of the nature of a constitutional infirmity ... Nin Bay Mining Co. v.
Municipality of Roxas, Palawan, G.R. No. L-20125, July 20,1965,14 SCRA 660, 666].

That the facts charged comply with the elements of the offense penalized in the third paragraph of Section 1 of
P.D. No. 1866 is not disputed. But petitioner asserts that the nature of his alleged acts requires that he be
charged with subversion or with rebellion instead of qualified illegal possesion of firearms and ammunition,
perhaps in view of the lower penalty for subversion and rebellion. Quashal of the information cannot be had on
this ground, the matter of what offense to charge in the information being within the prosecutor's sound
discretion. As the Court stated in the case of People v. Pineda [G.R. No. L-26222, July 21, 1967, 20 SCRA 748]:

. . . The question of instituting a criminal charge is one addressed to the sound discretion of the
investigating Fiscal. The information he lodges in court must have to be supported by the facts brought
about by an inquiry made by him. It stands to reason then to say that in a clash of views between the
judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail. In this regard, he ordinarily cannot be subject to
dictation. . . . [At 756].

In sum, petitioner's case for the declaration of unconstitutionality of the third paragraph of Section 1 of P.D. No.
1866 is wanting in legal basis.

In this separate opinion, Mr. Justice Sarmiento espouses the view that P.D. No. 1866 should be struck down as
unconstitutional for being a bill of attainder.

Initially, it must be pointed out that the petition never challenged P.D. No. 1866 on that ground. As discussed
earlier, petitioner objected to P.D. 1866 on the ground of substantive due process. Established rules of
constitutional litigation would, therefore, bar an inquiry based on the theory that P.D. No. 1866 constitutes a bill
of attainder. It must also be noted that while petitioner challenges only the third paragraph of section 1 of P.D.
No. 1866, Mr. Justice Sarmiento would have the other portions of the law invalidated. Again, this is
impermissible.

But even if a challenge on the ground that P.D. 1866 is a bill of attainder could be appropriately considered, it
will still be met with little success. The Court, in People v. Ferrer, supra, defined a bill of attainder as a legislative
act which inflicts punishment on individuals or members of a particular group without a judicial trial. Essential to
a bill of attainder are a specification of certain individuals or a group of individuals, the imposition of a
punishment, penal or otherwise, and the lack of judicial trial. This last element, the total lack of court intervention
in the finding of guilt and the determination of the actual penalty to be imposed, is the most essential [Id. at pp.
395-397; 400-401]. P.D. No. 1866 does not possess the elements of a bill of attainder. It does not seek to inflict
punishment without a judicial trial. Nowhere in the measure is there a finding of guilt and an imposition of a
corresponding punishment. What the decree does is to define the offense and provide for the penalty that may

48
be imposed, specifying the qualifying circumstances that would aggravate the offense. There is no
encroachment on the power of the court to determine after due hearing whether the prosecution has proved
beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the
qualifying circumstance attached to it has been established also beyond reasonable doubt as the Constitution
and judicial precedents require.

The presumption of constitutionality attaches to legislative acts [Yu Cong Eng v. Trinidad, 47 Phil. 387 (1925);
Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968, 22 SCRA 425]. Before a statute or a portion thereof may
be declared unconstitutional, "it must be shown that the statute violates the constitution clearly, palpably plainly,
and in such a manner as to leave no doubt or hesitation in the mind of the Court." [SINCO PHILIPPINE
POLITICAL LAW 525 (11th ed., 1960, citing Sharpless v. Mayor, 21 Pa. 147; also quoted in Alba v. Evangelists,
100 Phil. 683 (1957)]. "Thus, to justify the nullification of a law, there must be a clear and unequivocal breach of
the Constitution, not a doubtful and argumentative implication." [Peralta v. COMELEC, G.R. No. L-47771, March
11, 1978, 82 SCRA 30, 55]., Absent a clear showing that the challenged measure ousts the courts from the
function of passing upon the question of guilt or innocence of the accused and an unequivocal demonstration
that P.D. No. 1866, by legislative fiat, declares the petitioner guilty of a crime and imposes directly the penalty
prescribed thereunder, the challenge will have to be rejected.

Neither can the Court strike down P.D. No. 1866 for snowing the possibility of a second jeopardy, as Mr. Justice
Sarmiento suggests. It must be pointed out that at the time this petition was filed, there had been no previous
conviction, acquittal or dismissal. Hence, the question of a second or double jeopardy does not arise. This is
manifest from the Constitution, which provides:

Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act. [Art. III.]

More particularly, Rule 117 of the Rules of Court states:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without Ms express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessary included in the offense charged in the former complaint or
information.

x x x           x x x          x x x

The right against double jeopardy is a matter which the accused may raise in a motion to quash [Sec. 3(h) Rule
117]. But, precisely, petitioner's motion to quash flied in the trial court did not raise the issue of double jeopardy
because it had not arisen. The Court cannot anticipate that the opportunity for a second jeopardy will still arise if
he is acquitted or convicted as charged under P.D. 1866.

Moreover, even if such a subsequent or second jeopardy does arise, P.D. No. 1866 will not be rendered
unconstitutional. That an accused will be exposed to double jeopardy if he is prosecuted under another law is
not a ground to nullify that law. Double jeopardy is merely a defense that an accused may raise to defeat a
subsequent prosecution or conviction for the same offense.

2. The thrust of petitioner's contention that the trial court had not acquired jurisdiction over his person is
that his constitutional rights against unlawful arrest and unreasonable searches and seizures had been
violated. He asserts that he was arrested in contravention of the clear provisions on arrests in the
Revised Rules of Court. He concludes that since his arrest was unlawful, the search pursuant thereto
which yielded the shotgun and the live rounds of ammunition was also illegal.

When the case was assigned to the ponente, she had intended to consider and to resolve this issue, it having
been squarely raised in the petition. However, in an unexpected turn of events, petitioner filed a Manifestation
dated September 18, 1989, wherein he averred:

49
 1. He has filed a bond in the trial court and the same was approved on September 14, 1989.

2. He is well aware that the filing of a bail bond has the effect of waiving the right to question the
irregularity of an arrest (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525).

3. Be that as it may, the irregularity of the arrest was only a secondary issue in the instant Petition.
The principal issue is still the unconstitutionality of the third paragraph of Section 1 of P.D. No. 1866
insofar as it penalizes illegal possession of firearms 'in furtherance of, or incident to, or in connection with
the crimes of rebellion, insurrection or subversion'.

The Court takes this to mean that petitioner is submitting the case for decision on the sole issue that P.D. No.
1866 is unconstitutional and is abandoning the issue of the legality of the search and his arrest.

In view thereof, the Court finds it unnecessary to resolve the second issue.

WHEREFORE, in view of petitioner's failure to clearly and unequivocally establish that the third paragraph of
Section 1 of P.D. No. 1866 violates the Constitution, the petition is hereby DISMISSED.

SO ORDERED.

Fernan. C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-
Aquino and Medialdea, JJ., concur.
Regalado, J., In the result.

50
G.R. No. 95136 October 3, 1991

RAFAEL BAYLOSIS and BENJAMIN DE VERA, petitioners,

vs.
HON. APOLONIO R. CHAVEZ, JR., RIZAL PROVINCIAL PROSECUTOR MAURO CASTRO, COL. VIRGILIO
SALDAJENO, HON. FRANKLIN M. DRILON, JR., HON. FIDEL V. RAMOS and GEN. RENATO DE
VILLA, respondents.

Romeo T. Capulong for Rafael Baylosis. Arno V. Sanidad for Benjamin de Vera. Efren H. Mercado for Marco
Palo.

NARVASA, J.:

The constitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is put at issue in the
special action of certiorari, prohibition and mandamus at bar. That provision punishes with the penalty
of reclusion perpetua,   any person who unlawfully manufacturers, deals in, acquires, disposes of, or possesses
1

any firearm,   "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or
2

subversion."

This is the second such attack against the provision. The first was launched sometime in 1988 and eventually
repelled in this Court's decision in Misolas vs. Panga, rendered on January 30, 1990.   The Court in that case
3

declined to hold the provision unconstitutional, overruling such arguments as that —

a) the questioned paragraph is violative of the principle of "substantive due process against arbitrary
law ... because it disregards the overwhelming weight of national as well as international laws and
jurisprudence behind the Hernandez (99 Phil 615) and Geronimo (100 Phil 90) rulings on the doctrine of
absorption of common crimes in rebellion;"

b) it has given rise to the practice of charging armed rebels or subversives with "qualified' illegal
possession of firearms instead of subversion or rebellion ... (because) (1) the former is easier to
prosecute than the latter, and (2) the former has a higher penalty ...;"

c) it is a bill of attainder; and

d) it allows a second jeopardy.

This second challenge to the constitutionality of said third paragraph of Section 1 of Presidential Decree No.
1866 relies on essentially the same arguments as those put forth in support of the first, petitioners' insistence to
the contrary notwithstanding. Since it does not seem that the passage of time has infused any validity into those
arguments, they shall again be struck down as specious, and the second constitutional challenge, like the first,
repulsed.

51
The case at bar originated from an information filed in the Regional Trial Court at Pasig charging petitioners
Rafael Baylosis and Benjamin de Vera, together with one Marco Palo, with a violation of PD 1866,   committed
4

as follows:

That on or about the 29th day of March, 1988 in the Municipality of San Juan, Metro Manila, Philippines ..., the
above named accused, all known high ranking officers of the Communist Party of the Philippines, and its military
arm, the New Peoples Army, conspiring and confederating together and mutually helping each other, did then
and there willfully , unlawfully and feloniously have in their possession, control and custody, in furtherance of, or
incident to, or in connection with the crimes of rebellion/subversion, the following, to wit:

A. Firearms/Ammunition

One (1) AK 47 Automatic Rifle with M22N006726 with magazine and 9 rounds.

B. Explosives

Three (3) pieces fragmentation hand grenades without first securing the necessary license or
permit thereof from a competent government authority.

Baylosis, de Vera, and Palo, filed a motion to quash the information on the following grounds, viz.:

I. THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE BECAUSE THEY ARE

FOUNDED ON AN UNCONSTITUTIONAL/REPEALED STATUTE.

B. FOR THE SAME REASONS, THIS HONORABLE COURT IS DEVOID OF JURISDICTION

TO TRY THIS CASE.

After receiving the parties' arguments on the matter, the Trial Court denied the motion to quash, by an
extended Resolution dated April 24, 1990. A motion for reconsideration filed by Baylosis, et al. was also
denied in an Order dated July 12, 1990.

Baylosis and de Vera thereupon instituted the present action in this Court. Here, they plead for the
nullification and setting aside of the Trial Judge's Orders of April 24, 1990 and July 12, 1990; the
dismissal of Criminal Case No. 72705 or, alternatively, that the information therein be considered as
charging only simple rebellion; and that the public officials impleaded as respondents — the Rizal Public
Prosecutor, the Secretary of Justice, the Secretary of National Defense, the Chief of Staff of the Armed
Forces of the Philippines, and the Special Military Prosecutor — be "restrained from further initiating,
filing or prosecuting cases involving common crimes against the petitioners."

What the petitioners advocate at bottom is that a doctrine laid down by jurisprudence or case law is
superior to a statute afterwards enacted by legislative authority; that decisions construing certain specific
provisions of one law are sufficient basis for a declaration of the unconstitutionality of a subsequently
enacted law. More specifically, they contend that the rulings in People vs. Amado Hernandez   (reiterated
5

in some ten other subsequent rulings), Enrile vs. Salazar,   and Enrile vs. Amin   — to the effect that the
6 7

felony of rebellion defined and penalized in the Revised Penal Code cannot, in accordance with Article
48 of the same Code, be complexed with the offense of murder, homicide, arson, or other crimes
committed in connection with, or on the occasion or in furtherance of, rebellion — render invalid, as
unconstitutional, Section 1 (3) of Presidential Decree No. 1866, as amended.

The petitioners further posit the unconstitutionality of the challenged provision because "repugnant to the
provisions of the 1987 Constitution, which guarantee full respect for human rights, equal protection of the
laws, due process, right to bail, protection against double jeopardy and from cruel, degrading or inhuman
punishment, and supremacy of civilian authority over the military."

PD 1866 was enacted on June 29, 1983   by the late President Marcos in the exercise of his legislative
8

powers under the 1973 Constitution, with the avowed purpose, indicated in its title, to codify "the laws on
illegal/unlawful possession, manufacture, dealing in, acquisition or disposition, of firearms, ammunition or
explosives or instruments used in the manufacture of firearms, ammunition or explosives; and disposing

52
stiffer penalties for certain violations thereof and for relevant purposes." The section (numbered 1)
containing the allegedly unconstitutional provision   reads as follows:
9

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes
of rebellion, insurrection or subversion, the penalty of death shall be imposed.

The penalty reclusion temporal in its maximum period to reclusion perpetua shall be imposed

upon the owner, president, manager, director or other responsible officer of any public or private
firm, company, corporation or entity, who shall wilfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be used by any person found guilty of
violating the provisions of the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor.

It is worthy of note that under this section —

1) simple possession of firearm without license or lawful authority (or unlawful manufacture, dealing in,
acquisition, or disposal of any firearm, part of firearm, ammunition or machinery, tool or instrument used
or intended to be used in the manufacture of any firearm or ammunition), without more, is punished
by reclusion temporal maximum to reclusion perpetua — a penalty that, to be sure, is heavier
than prision mayor, which is the penalty prescribed for rebellion or insurrection by Article 135 of the
Revised Penal Code;

2) indeed, even if the firearm be licensed but is brought by the possessor outside of his residence
without authority, the penalty imposed for the act is prision mayor, the same sanction as for rebellion;

3) the penalty is however increased to death (now reclusion perpetua)   if —10

a) the unlicensed firearm is used in the commission of murder or homicide, or

b) the unlicensed firearm (or part thereof, or ammunition or machinery, tool or instrument in the
manufacture of any firearm or ammunition) is possessed, dealt in, acquired, disposed of or
possessed in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion.

Equally noteworthy is that the same PD 1866, as amended,   also defines as a crime punishable
11

by reclusion temporal in its maximum period to reclusion perpetua, the act of any person —

... who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand-
grenade(s), rifle grenade(s), and other explosives, including but not limited to "philbox bombs
(sic)," "molotov cocktail bomb," "firebombs," or other incendiary devices capable of producing
destructive effect on contiguous objects or causing injury or death to any person.

In other words, the mere possession of the weapons (or the unlawful manufacture or assembly thereof,
or dealing in, acquisition or disposal thereof) is also punished by reclusion temporal maximum
to reclusion perpetua, a penalty higher than that imposed for rebellion or insurrection, prision
mayor, supra.

53
But the even higher penalty of death (now reclusion perpetua) is imposed if the aforementioned
explosives, detonation agents or incendiary devices —

1) are used in the commission of any of the crimes defined in the Revised Penal Code, and this results in
the death of any person or persons; or

2) are manufactured, assembled, dealt in, acquired, disposed of or possessed "in furtherance of, or
incident to, or in connection with the crimes of rebellion, insurrection or subversion ..."

It is of no little significance that the petitioners do not condemn these other provisions of Section 1 and 3
— defining crimes also involving possession or manufacturing and/or use of firearms, ammunition and
explosives, and penalizing them by reclusion temporal maximum to reclusion perpetua, or even by death
— as being unconstitutionally infirm because imposing cruel or unusual punishment, or violative of due
process, or otherwise.

What they say is that "laws and jurisprudence on political crimes are intended, and should always be
interpreted, as favoring the political offender" since "political crimes are committed by the best of
patriots," a theory that, it is said, runs counter to the Misolas decision   and impels re-examination of the
12

latter. What they condemn is the imposition of such heavy penalties on the crime of possession,
manufacture or use of firearms or explosives if committed "in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion," as if by some juridic alchemy,
relation to rebellion or subversion works a transformation in the nature of the crimes in question. The
connection, in other words, as the petitioners unabashedly affirm, is that the act of illicitly possessing or
using a firearm is ennobled and mitigated by its being connected with an attempt or a publicly asserted
intention to overthrow the Government; that killers, arsonists, terrorists should not be treated as
"common criminals," i.e., condemned and punished as the killers, arsonists or terrorists that they are, if
they commit their acts of violence and destruction in the name of "the Revolution." This is sophistry,
totally unacceptable under the constitutional scheme of things in this country. It is a theory which has
never been and should never be sanctioned by this Court. It is a proposition that is not in essence
defensible, specially in the context of contemporary events.  13

The petitioners further theorize that Section 1 (3) of PD 1866 is invalid because it gives the public
prosecutor an option not to file a case for rebellion and instead file as many crimes for murder, frustrated
murder, etc. as might have been perpetrated in furtherance of, or incident to, or in connection with
rebellion, insurrection or subversion. The argument is not tenable. The fact is that the Revised Penal
Code treats rebellion or insurrection as a crime distinct from murder, homicide, arson, or other felonies
that might conceivably be committed in the course of a rebellion. It is the Code, therefore, in relation to
the evidence in the hands of the public prosecutor, and not the latter's whim or caprice, which gives the
choice. The Code allows, for example, separate prosecutions for either murder or rebellion, although not
for both where the indictment alleges that the former has been committed in furtherance of or in
connection with the latter. Surely, whether people are killed or injured in connection with a rebellion,
or not, the deaths or injuries of the victims are no less real, and the grief of the victims' families no less
poignant.

Moreover, it certainly is within the power of the legislature to determine what acts or omissions other
than those set out in the Revised Penal Code or other existing statutes are to be condemned as
separate, individual crimes and what penalties should be attached thereto. The power is not diluted or
improperly wielded simply because at some prior time the act or omission was but an element or
ingredient of another offense, or might usually have been connected with another crime.

The interdict laid in Hernandez, Enrile and the other cases cited is against attempts to complex rebellion
with the so called "common" crimes committed in furtherance, or in the course, thereof; this, on the
authority alone of the first sentence of Article 48 of the Revised Penal Code. Stated otherwise,
the ratio of said cases is that Article 48 cannot be invoked as the basis for charging and prosecuting the
complex crime of rebellion with murder, etc., for the purpose of obtaining imposition of the penalty for the
more serious offense in its maximum period (in accordance with said Art. 48). Said cases did not —
indeed they could not and were never meant to — proscribe the legislative authority from validly enacting
statutes that would define and punish, as offenses  sui generis crimes which, in the context
of Hernandez, et al. may be viewed as a complex of rebellion with other offenses. There is no
constitutional prohibition against this, and the Court never said there was. What the Court stated in said
54
cases about rebellion "absorbing" common crimes committed in its course or furtherance must be viewed
in light of the fact that at the time they were decided, there were no penal provisions defining and
punishing, as specific offenses, crimes like murder, etc. committed in the course of as part of a rebellion.
This is no longer true, as far as the present case is concerned, and there being no question that PD
1866 was a valid exercise of the former President's legislative powers. Thus,  Misolas, 14 to the effect
that charging the qualified offense of illegal possession of firearms under PD 1866 does not charge the
complex crime of subversion with illegal possession of firearms, and hence does not run counter
to Hernandez, et al., is good and correct rule and is applicable here.

In Enrile vs. Salazar, the Court intimated that the remedy against the perceived lightness of the penalty
for rebellion was not to be sought from the courts, but by legislation. It may not unreasonably be
supposed that the purpose of PD 1866 appears to be precisely to remedy that perceived lenity of the
penalty prescribed by the Revised Penal Code for rebellion or insurrection and the legal impossibility,
pronounced by this Court of complexing that felony with other crimes punished by higher penalties in
accordance with Article 48 of the same Code.

It is next argued that the proviso in question is unconstitutional because if inflicts on the convicted felon a
cruel or unusual punishment, considering that the Revised Code penalizes rebellion or subversion only
by prision mayor. The penalty fixed in said challenged section is, it is contended, flagrantly and plainly
oppressive, greatly disproportionate to the offense, and shocking to the people's sense of justice. The
result, it is further argued, is that the right to bail is denied under PD 1866 when the act thereby punished
is only an ingredient of simple rebellion or subversion (which are bailable offenses) under the Revised
Penal Code.

It is well settled that as far as the constitutional prohibition goes, it is not so much the extent as the
nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of
imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.   As
15

pointed out by a brother in the Court, a noted authority on Constitutional Law, this Court had held
(in People vs. Dionisio, 22 SCRA 1299), "that mere severity does not constitute cruel and unusual
punishment. Reiterating the rule first announced in People vs. Estoista (93 Phil. 674), it declared that it
takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution ... to come under the ban, the punishment must be 'flagrantly and plainly
oppressive' 'wholly disproportionate to the nature of the offense as to shock the moral sense of the
community.'"   The same noted author further points out that "a penalty not normally proportionate to the
16

offense may be imposed in some instances without violation of the Constitution. ... (as) for example,
where the offense has become so rampant as to require the adoption of a more effective deterrent, like
the stealing of jeeps or coconuts, which is punished by the Revised Penal Code as qualified theft"   — 17

or, it may be added, like such crimes as assassinations, bombings and robberies, which are committed
nowadays with frightening frequency and seeming impunity with the use of high-powered weapons,
explosives or similar devices, whether in connection with or in furtherance or pursuance of, rebellion or
subversion, or not.

It bears repeating in this connection that mere possession of a firearm without license or lawful
authority,   without more, is punished by reclusion temporal maximum to reclusion perpetua; and that the
18

use of an unlicensed firearm in the commission of murder of homicide is punished

by death (now reclusion perpetua   ), yet there is no challenge to these penalties as being cruel or
19

unusual.

The petitioners next proffer the argument that the Revised Penal Code punishes the crime of rebellion or
insurrection (including the "common crimes" of murder, homicide, arson, etc. therein absorbed) only with
the penalty of prision mayor. Comparisons, as the saying goes, are odious; and in this case, the attempt
to compare PD 1866 with the Revised Penal Code is unwarranted. That there is a difference in penalty
between the two laws does not necessarily establish that the heavier penalty imposed by one of said
laws is excessive, disproportionate, or "cruel or unusual." For it might be argued, too, and certainly not
without more than a modicum of validity, that the penalty in the Penal Code for rebellion may be
regarded as unduly light given the conditions now prevailing in the country. In fact, no lack of
commensuration may be pleaded if the avowed premises of PD 1866 (particularly the first, second and
fifth whereas clauses of the preamble) are taken into account, viz.:

55
 1) there has been an upsurge of crimes vitally affecting public order and safety (including, not to
say specially, offenses of rebellion or subversion) due to the proliferation of illegally possessed
and manufactured firearms, ammunition and explosives;

2) these criminal acts have resulted in loss of human lives damage to property and destruction of
valuable resources of the country;

3) there are some provisions in ... (the) and laws and presidential decrees which must be
updated and revised in order to more effectively deter violators of the law on firearms,
ammunition and explosives.

The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or
deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts
of destruction and terrorism that they perpetrate, unfortunately continue unabated despite the best efforts
that the Government authorities are exerting, although it may be true that the insurrectionist groups of
the right or the left no longer pose a genuine threat to the security of the state. The need for more
effective measures against these nefarious activities, including of course more stringent laws and more
rigorous law-enforcement, cannot be gainsaid.

It is also argued that PD 1866 offends against the equal protection clause of the Constitution in that
government prosecutors may arbitrarily choose those they want to prosecute under said law and those
under Article 135 of the Revised Penal Code (or RA 1700, the Anti-Subversion Act). The argument is
unimpressive. It is not much different from saying that a suspected killer is denied the equal protection of
the laws because the prosecutor charges him with murder, not homicide, both crimes, though essentially
consisting in the taking of human life, being punished with different penalties under separate provisions
of the penal code. As already stressed, it is the prerogative of the legislature of the determine what acts
or omissions shall be deemed criminal offenses and what sanctions should attach to them. Certainly, the
public prosecutors should have the option to ascertain which prosecutions should be initiated on the
basis of the evidence at hand. That a criminal act may have elements common to more than one offense
does not rob the prosecutor of that option (or discretion) and mandatorily require him to charge the
lesser offense although the evidence before him may warrant prosecution of the more serious one. Now,
if government prosecutors make arbitrary choices of those they would prosecute under a particular law,
excluding from the indictment certain individuals against whom there is the same evidence as those
impleaded, the fault is not in the law but in the prosecutors themselves whose duty it is to file the
corresponding information or complaint against all persons who appear to be liable for the offense
involved,   a duty that should be performed responsibly, without discrimination, arbitrariness or
20

oppression. If that duty is not performed evenhandedly, the persons aggrieved are not without remedy.
They may avail of the remedy of mandamus of compel compliance with that duty by the prosecutors
concerned.  21

The petitioners' invocation of the doctrine of double jeopardy as an argument against the
constitutionality of PD 1866 is equally futile. They maintain that a person held liable under PD 1866 can
still be made to answer subsequently for rebellion. The argument is here disposed of by simply adverting
to the resolution of that self-same contention in Misolas:

The right against double jeopardy is a matter which the accused may raise in a motion to quash
(Sec. 3[h], Rule 117). But, precisely, petitioner's motion to quash filed in the trial court did not
raise the issue of double jeopardy because it had not arisen. The Court cannot anticipated that
the opportunity for a second jeopardy will still arise if he is acquitted or convicted as charged
under P.D. 1866.

Moreover, even if such a subsequent or second jeopardy does arise, P.D. No. 1866 will not be
rendered unconstitutional. That an accused will be exposed to double jeopardy if he is
prosecuted under another law is not a ground to nullify that law. Double jeopardy is merely a
defense that an accused may raise to defeat a subsequent prosecution or conviction for the
same offense.

WHEREFORE, the petitioner is DENIED for lack of merit, with costs against petitioners.

56
 SO ORDERED.

Fernan, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea and Davide,
Jr., JJ., concur.

G.R. No. 89823             June 19, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUTROPIO TIOZON y ACID, accused-appellant.

The Solicitor General for plaintiff-appellee. Lorenzo G. Parungao for accused-appellant.

DAVIDE, JR., J.:

In an information filed by the Asst. City Prosecutor of Caloocan City on 27 February 1989 with Branch 131 of the
Regional Trial Court (Caloocan City) of the National Capital Judicial Region, accused-appellant was charged for
violation of Presidential Decree 1866, as amended, committed as follows:

That on or about the 24th day of February 1989 in Kalookan City, Metro Manila and within the jurisdiction
of this Honorable Court, the above-named accused, without any lawful motive or purpose, did then and
there wilfully, unlawfully and feloniously have in his possession, custody and control one .38
cal. revolver, marked Squires Bingham with SN 180169 with three live ammunitions without authority of
law, which firearm was used with treachery and evident premeditation in shooting one Leonardo Bolima
y Mesia, which caused death. 1

Accused-appellant pleaded not guilty when arraigned on 15 March 1989.  Pre-trial was conducted and thereafter
2

the trial court received the evidence for the parties.

In a decision promulgated on 30 June 1989,  the court a quo found accused-appellant guilty and sentenced him
3

as follows:

WHEREFORE, in view of all the foregoing, the court finds the accused EUTROPIO TIOZON y ACID
guilty beyond reasonable doubt of the crime of P.D. 1866 and Murder qualified by treachery and hereby
sentences him to suffer life imprisonment; to indemnify the heirs of the deceased Leonardo Bolima the
sum of P30,000.00; to reimburse the heirs of the victim the sum of P50,000.00 as reasonable expenses
for the wake and burial expenses and to pay the costs.

According to the trial court, were it not for its abolition, "the death penalty, the sentence imposable
under 2nd pa., Section 1 of P.D. 1866, as amended", should have been imposed.

On 5 July 1989 Accused-appellant filed a motion to reconsider the decision  which, however, was denied by the
4

court in its order of 16 August 1989.  On 17 August accused-appellant filed a Notice of Appeal.  Hence, the case
5 6

is now before Us.

The facts as found by the court a quo are as follows:

57
 That at around 11:00 o'clock in the evening of February 24, 1989, while she and her husband were
sleeping inside their house, they were awakened by the loud knocks on their door; Her husband opened
the door and they saw that the person who was knocking was their "Pareng Troping", accused herein;
her husband invited the accused, who appeared to be very drunk, to come inside their house; once
inside their house, accused sat down and the two (accused and victim) exchanged pleasantries; she
even saw the accused showing a gun to her husband and the latter even toyed with it; she got irritated
by her husband's playing with the gun, so she took a few steps away from the two, however, when she
looked back to the place where her husband and the accused was, she found out that the two had
already left; five minutes later and/or after she had heard two successive gunshots, she heard accused
knocking at their door and at the same time informing her that he accidentally shoot (sic) her husband,
"Mare, mare, nabaril ko si Pare, hindi ko sinasadya" she got scared by the appearance of the accused
who was full of bloodstains so she pushed him away from her; she immediately went to her sister-in-law
Marilyn Bolima and both of them proceeded to the house of the accused; thereat, they saw the victim
lying with his face up; she took her husband's pulse and when she still felt some warmth on his body,
she sought help that her husband be brought to the hospital; accused extended his help by helping them
in carrying the victim towards the main road, however, after a few steps, he changed his mind and put
down the victim; accused reasoned out that the victim was already dead; she pushed the accused and
even without the latter's help, they were able to reach the main road; afterwhich, some of her neighbors
arrived bringing with them lights; thereafter, Kalookan policemen arrived and so she caused the arrest of
the accused; she spent about P100,000.00 in connection with burial and wake of her husband.

Pat. Orlando Valencia of the Kalookan Police Force on the witness stand testified that on February 24,
1989 in line with his duty as policemen, a shooting incident was reported to him; he responded to the
said report by proceeding to the crime scene, thereat, he saw the lifeless body of the victim as well as
the accused whose clothing was full of bloodstains; the cadaver of the victim was referred to the
Philippine Constabulary Crime Laboratory (PCCL) while the person of the accused was turned over to
the Homicide Section of the Kalookan City Police Station; the day after, at around 10:00 o'clock in the
evening and upon instruction of Pfc. Alilam he together with some Kalookan policemen accompanied the
accused in retrieving the firearm (Exh. "F") whom the accused threw at the grassy area particularly at the
back of the latter's house; aside from the firearm they also recovered two (2) spent bullets (Exh. G-6 and
G-7) and three live ammunitions (Exh. G-12, G-13 and G-14).

NBI Ballistician Ernie Magtibay testified that he has been a ballistician of the NBI since 1984; that
pertinent to this case, he happened to examine a caliber .38 Squires Bingham with serial number
180169 (Exh. "F"); that as per his findings the evidence shells (Exhs. G-6 and G-7) were fired from the
gun, subject matter of this case.

Forensic chemist from the NBI Edwin Purificando testified that the paraffin test he conducted on the
dorsal aspect of the left and light hands, that is, from the wristbones to the fingertips, of the deceased,
gave negative result on the presence of nitrates (Exh. "I"). Likewise, the paraffin test he conducted on
the dorsal aspects of the left hand and right hand of the accused yielded negative results on the
presence of nitrates (Exh. "J").

On the other hand, the version of the defense as testified to by the accused is as follows:

That at about 11:30 in the evening of February 24, 1989 accused on his way home, after coming from
his work, passed by the house of his Pareng Nardo, the victim herein; while passing infront of the said
house, his Pareng Nardo called him up; when he was about to enter the door of the house of the victim,
the latter, from the back of the door, poked a gun at him; he grabbed the gun from his Pareng Nardo and
at that instance, Rosalina Bolima emerging from her room, saw him holding the gun; he returned the gun
to his Pareng Nardo and the latter tucked it in his waistline; he was served with a beer and after he and
the victim consumed about two bottles of beer, they went out to buy some more; after they were able to
buy some more bottles of beer, victim carried the same and left ahead of the accused; accused was left
behind to answer the call of nature; while in the act of urinating, he heard two successive gunshots; he
followed the victim and he saw the latter already sprawled on the ground; he inquired from his Pareng
Nardo as to what had happened to him, "Pareng Nardo, ano ang nangyari sa iyo? and the victim's
replied (sic) was "Pare, binaril ako", he further inquired as to who shot him but the victim who was
gasping for breath could no longer talk; thereafter, he saw a gun near the body of his Pareng Nardo;
moved by his desire to bring the said gun to the wife of the victim, he picked the same, but after he got
hold of the gun, he suddenly realized that the policemen might see him holding it, so he threw the very
58
 same gun to the grassy area; he then ran towards the house of the victim and he informed the wife of the
latter that his Pareng Nardo was shot to death; he returned to the place where he left the body of the
victim but the body of the latter was no longer there; he later found out that townspeople carried the body
of the victim towards the main road; when the policemen arrived he was ordered to go with them at the
Kalookan Police Headquarters; when he was asked by the policemen as to who shoot (sic) the victim,
his answer was, he did not see the actual shooting incident; never did he declare nor utter before her
Mareng Lina or before any police authorities that he accidentally shoot (sic) the victim. However, he
admitted that it was him who accompanied the policemen in retrieving the fatal gun at the grassy area at
the back of his house.

In holding the accused-appellant guilty as above-stated, the court a quo relied on circumstantial evidence
because the prosecution failed to present an eyewitness who could give an account as to the actual shooting
incident. It considered the following circumstances which it deemed sufficient to convict the accused-appellant
pursuant to Rule 133, Section 5, of the Revised Rules of Court:

The following are among the circumstances which points to the culpability of the accused.

1) That the widow of the victim saw the accused holding a gun immediately before shooting
incident happened;

2) That accused was the last person seen in the company of the victim immediately before the
latter was shot to death;

3) That it was the accused who purposely went to the house of the victim on that fatal evening;
The testimony of the accused that he was merely passing in front of the house of the victim when
the latter who was standing at the window of his house called him up is less credible than the
testimony of the widow of the victim, that they were already aslept (sic) inside their house when
or the aforesaid time accused knocked at their door.

4) That it was the accused who guided the policemen as to the place where the fatal gun was
recovered. Here the Court believes that the gun was purposely hid at the grassy area at the back
portion of accused's house. The story of the accused that he picked the gun for the purpose of
bringing it to the widow of the victim but for fear that the policemen might see him holding the
gun, he then decided to throw it to the place where it was recovered, was too flimsy to merit
belief. Firstly, what is his reason for bringing it to the widow of the victim when he surely knew
fully well that it will be the policemen who will investigate the case. Secondly, he knew for a fact,
that the said gun could lead as to the identity of the assailant of the victim, why then he threw it at
the grassy area when he could easily leave the same to the place where he picked it up.

5) The testimony of the wife that after hearing two successive gunshots, accused went back to
her house and informed there (sic) that he accidentally shot her husband deserves merit,
Besides, the Court sees no reason for the wife to concoct such story that would point to the
accused as the culprit specially so that had not the accused became (sic) the prime suspect in
this case, he would be the best person to be used as a prosecution witness, with more reason
that from the evidence presented, it appears that the widow of the victim harbours no ill-feeling
towards the accused otherwise, she would have prevented accused accused's entry in her house
on that fatal evening.

6) The testimony of the wife that accused, immediately after the shooting incident took place
admitted to her having accidentally shoot (sic) the victim is admissible evidence against the
accused declarant since this is covered by the rule on res gestae or one of an exception to the
hearsay rule.

Part of the res gestae — Statement made by a person while a startling occurrence is
taking place or immediately prior tor (sic) subsequent thereto with respect to the
circumstance thereof, may be given in evidence as a part of res gestae . . . (Sec. 36,
Rule 130, Revised Rules of Court, as amended).

59
 7) The testimony of the accused that he does not own the gun and that it is but (sic) the accused
(sic) who owns the same and in fact the latter even tucked it in his waistline immediately before
the shooting incident happened is improbable, for, how come then that the assailant was able to
drew (sic) the gun from the waistline of the victim and fired (sic) the same towards the back
portion of the victim's body. Is it not that the natural reaction of a person was to face the person
who suddenly and without permission drew something from one's waistline. (sic)

While there is no eyewitness who testified to having seen accused shoot (sic) the victim, yet all the
foregoing circumstances meet the criteria set by Sec. 5, Rule 133 of the Revised Rules of Court, as
amended, and therefore points (sic) to the accused as the person who unlawfully owns the fatal gun as
well as the same person who shoot (sic) to death the victim. "Circumstantial (sic) evidence is admissible
in the absence of an eyewitness to the commission of the crime" (People vs. Albofera, 152 SCRA 125
[1983]).

The Court does not give credence to the denial of the accused that he was not the one who shoot (sic)
the victim as he was some distance away from the victim answering the call of nature when the victim
was killed. Instead, the Court gives credence to the testimony of the widow that it was the accused
whom he saw in possession of the gun, that it was the accused who was the last person seen in the
company of the victim shortly before the latter died and it was the same accused who lead (sic) the
policemen in retrieving the fatal gun.

Admittedly, as per findings of the NBI Forensic Chemist, the accused's right and left hand yielded
negative result to the test of nitrates. However, the same witness testified that even when a person fired
gun, it does not necessarily follows (sic) that his hand would be positive to the test of nitrates, as there
are still several factors which affects the presence or absence of nitrates in the hands of a person.

x x x           x x x          x x x

Although the fact of death of the victim (Exh. "E") is undisputed, still the presence of the qualifying
circumstance of treachery and evident premeditation being alleged in the Information, must be proven
like the crime itself.

To properly appreciate evident premeditation it is necessary to establish with proof, as clear as the
evidence of the crime itself (1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the culprit had clung to his determination; and (3) a sufficient lapse of time to
reflect upon the consequence of his act (People vs. Lorenzo, 132 SCRA 17 (1984); People vs. Obengue,
147 SCRA 1987). Although alleged in the Information, the record of this case is bereft of any indication
that evident premeditation attended the killing of the victim.

However, the qualifying circumstance of treachery is appreciated in this case since its presence could be
established by the position/location of the wound of the victim, that is at the back portion of his torso
which necessarily imply that he was treacherously shot by his assailant. 7

Accused-appellant assigns only one error in this appeal:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE

CRIME OF ILLEGAL POSSESSION WITH MURDER AS DEFINED UNDER SECTION 1 OF P.D. 1866.
THE CIRCUMSTANTIAL EVIDENCES RELIED UPON BY THE TRIAL COURT IN ITS JUDGMENT OF
CONVICTION ARE INSUFFICIENT
TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF ACCUSED-APPELLANT. 8

and prays that the decision appealed from be reversed and another be entered acquitting him.

In support of the assigned error accused-appellant submits that:

(a) Contrary to the conclusion of the trial court, he was not the one holding the gun immediately before the
shooting incident, for as admitted by the victim's wife, her husband also "toyed or played with the gun;9

60
(b) The testimony of the victim's wife that he was the last person seen in the company of the victim is unrealiable
because she was left in the house when the victim and accused-appellant went out to the store which is about
145 to 150 meters away;

(c) That the accused-appellant pointed the place where the gun allegedly used in the killing was recovered,
should not create the unfavorable inference that he purposely hid the gun and should not be taken against him,
for knowing the reputation of police authorities, what he did was dictated by the instinct of self-preservation
rather than guilt;

(d) The testimony of the wife of the victim that after hearing two successive gunshots accused-appellant went
back to her house and informed her that he accidentally shot her husband, should not have been considered by
the trial court as part of the res gestae; and

(e) The "raciocination" of the trial court regarding the improbability of the testimony of accused-appellant that he
does not own the gun but that it was the deceased who owned it which the latter tucked in his waistline before
the shooting incident is baseless as the records show that the deceased was walking ahead of the accused-
appellant who was left behind to answer a call of nature; therefore, it is not highly improbable that some other
person whom the deceased might have met in the street could have taken the gun from the waistline and shot
him with it. It would not also be highly improbable that a person from whose waistline a gun was grabbed could
not face his assailant especially when he is carrying something with his both hands, like the deceased who was
carrying one case of Gold Eagle beer when he was shot at. Moreover, accused-appellant was found negative for
nitrates when a paraffin test was conducted on him by a forensic chemist of the NBI. 10

The People, in its Brief filed by the Solicitor General on 18 April 1990, disagrees with the accused-appellant,
maintains that the prosecution was able to establish his guilt beyond reasonable doubt, and prays that subject
decision be affirmed in toto. It stresses that accused-appellant himself admitted and confirmed that he and the
victim went out together to buy some more bottles of beer; he was with the victim after they bought the beer, and
they separated only when he had the urge to urinate seconds before the incident. The widow did not testify that
she saw what happened in the street; what she testified was that the accused and the victim went out together
and five minutes later she heard two shots. There was, therefore, nothing improbable about her testimony.

Appellee likewise contends that the conclusion of the trial court on the hiding of the gun was based on the
evidence on record; the accused himself testified that he threw the gun on a grassy area. It further argues that
the conclusion of the court on the improbability of appellant's testimony concerning the ownership of the gun is
not baseless; on the contrary, it is the theory of the appellant that it is probable that another person may have
grabbed the gun from the victim that is highly improbable. Since appellant was behind the victim he could have
seen a third person grabbing the gun. He did not testify that he saw one. The negative result of the paraffin test
cannot be singled out to absolve the accused-appellant from liability. 11

No Reply-Brief was filed.

We are now called upon to determine whether, on the basis of the evidence adduced, the judgment appealed
from should be affirmed or the accused-appellant be acquitted.

We shall first focus our attention on the law under which accused-appellant is indicted.

Section 1 of P.D. No. 1866 imposes the penalty of reclusion temporal in its maximum period to reclusion
perpetua "upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm,
part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition." It goes further by providing that "if homicide or murder is committed with the use of
an unlicensed firearm, the penalty of death shall be imposed."

It may be loosely said that homicide or murder qualifies the offense 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
in the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized
in the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale
for the qualification, as implied from the exordium of the decree, is to effectively 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 possessed and manufactured firearms, . . . " In fine then, the killing of a person with the use of an

61
unlicensed firearm may give rise to separate 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 Code. The accused cannot
plead one as a bar to the other; or, stated otherwise, the rule against double jeopardy cannot be invoked
because the first is punished by a special law while the second, homicide or murder, is punished by the Revised
Penal Code.

In People vs. Domiguez,  We held:

12

It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense
or identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional fact or element which the other
does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution
under the other. Phrased elsewise, where two different laws (or articles of the same code) defines two
crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both
offenses arise from the same facts, if each crime involves some important act which is not an essential
element of the other. 13

In People vs. Bacolod, supra., from the act of firing a shot from a sub-machine gun which caused public panic
among the people present and physical injuries to one, informations for physical injuries through reckless
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 the ground of double jeopardy. We ruled:

The protection against double jeopardy is only for the same offense. A simple act may be an offense
against two different provisions of law and if one provision requires proof of an additional fact which the
other does not, an acquittal or conviction under one does not bar prosecution under the other.

Since the informations were for separate offense –– the first against a person and the second against public
peace and order — one cannot be pleaded as a bar to the other under the rule on double jeopardy.

However, to justify the imposition of the increased penalty under Section 1 of P.D. No. 1866 because of the
resulting crime of homicide or murder, the prosecution must allege in the information and prove by the quantum
of evidence required for conviction violation of said section and, more specifically, the use of an unlicensed
firearm and the commission of homicide or murder. In this regard, the information in this case is sufficient in form
and substance. It alleges illegal possession of a firearm and of murder, The latter is covered by the clause
"which firearm was used with treachery and evident premeditation in shooting one Leonardo Bolima y Mesia,
which caused his death.

We agree with the findings and conclusion of the court a quo that more than one circumstantial evidence were
duly proved and that these circumstances point, beyond reasonable doubt, to the accused-appellant as the one
who shot and killed the deceased Leonardo Bolima y Mesia. For circumstantial evidence to be sufficient to
convict an accused, it is necessary that the following requisites must be satisfied: (a) there must be more than
one circumstance, (b) the facts from which the inferences are derived are proven, and (c) the combination of all
the circumstances is such as to produce a conviction beyond a reasonable doubt.  Or, as jurisprudentially
14

formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances
proven constitute "an unbroken chain which leads to one fair and reasonable conclusion which points to the
defendant, to the exclusion of all others, as the guilty person,  i.e., the circumstances proved must be consistent
15

with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with
any other hypothesis except that of guilty.16

The first to the sixth circumstances mentioned by the trial court were duly established and constitute an
unbroken chain which leads to one fair and reasonable conclusion that the accused-appellant, and no other else,
shot and killed the victim. We do not, however, agree with the additional observation of the trial court, in respect
to the sixth circumstance, that the statement made by the accused-appellant to the wife of the victim immediately
after the shooting incident that he accidentally shot the victim is covered by the rule on res gestae. This is a
misapplication of the rule in the instant case. Statements as part of the res gestae are among the exceptions to
the hearsay rule. The rule is that a witness "can testify only to those facts which he knows of or his own
knowledge; that is, which are derived from his own perceptions.  Accordingly, a testimony of a witness as to
17

what he heard other persons say about the facts in dispute cannot be admitted because it is hearsay evidence.
There are, however, exceptions to this rule. One of them is statements as part of the res gestae under Section
36 of Rule 130 of the Revised Rules of Court. The exceptions assume that the testimony offered is in fact
62
hearsay; but it is to be admitted in evidence. Under the aforesaid Section 36, statements may be deemed as part
of the res gestae if they are made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof. Statements accompanying an equivocal act
material to the issue and giving it a legal significance may also be received as part of the res gestae.

In the instant case, however, the questioned testimony of the wife of the victim is not hearsay. She testified on
what the accused-appellant told her, not what any other party, who cannot be cross-examined, told her. The
accused-appellant's statement was an "oral confession", not a part of res gestae, which he can easily deny if it
were not true, which he did in this case.

In People vs. Tulagan, 143 SCRA 107,116-117, We declared that a statement allegedly made by one of the
accused to Natalia Macaraeg that "we killed him" (referring to himself and his co-accused) and which Natalia
repeated in her testimony in open court was merely an "oral confession" and not part of the res gestae.

Moreover, even assuming that the testimony of the wife of the victim on the alleged statement of the accused-
appellant is hearsay, the latter is barred from questioning its admission due to his failure to object thereto at the
time the testimony was given. The transcript of the stenographic notes of the testimony of Rosalina Magat vda.
de Bolima, wife of the victim, clearly shows the absence of an objection, thus:

Atty. Villano:
You said when you turned your back after taking a few steps and when you turned your back, they were
no longer there, will you please tell what happened after that?
A And that was when they left it was 11:30 and when he came back 11:35 he was already knocking
(referring to the person of the accused) telling me while he was knocking: "Mare, mare nabaril ko si pare,
hindi ko sinasadya."
Q By the way Mrs. Witness, who is that "pare" you are telling us?
A Troping, sir (as the witness pointed to).
Q The same Troping here, is your "kumpare"?
A Yes, sir.

(TSN, April 18,1989, p. 13).

The seventh circumstance mentioned by the court below is haphazardly formulated. Something is wrong with the
opening clause reading:

The testimony of the accused that he does not own the gun and that it is but the accused who owns the
same and in fact the latter even tucked it.

The words but the accused should have been the deceased.

Two more basic issues are left for determination, to wit: whether the prosecution has established beyond
reasonable doubt that the accused is liable for illegal possession of firearms and whether the killing was
attended by the qualifying circumstances of treachery and evident premeditation as alleged in the information.

Our painstaking review of the records and the evidence fails to disclose that the prosecution presented any
evidence to prove that the accused-appellant was not authorized to possess the firearm alleged in the
information. And, contrary to the finding of the trial court, there was no sufficient evidence to prove the presence
of treachery.

It must be stated, however, that had illegal possession of firearms been duly proven as alleged, it would not
have mattered whether the killing was simple homicide or murder since Section 1 of P.D. No. 1866 expressly
provides that:

x x x           x x x          x x x

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.

63
which penalty, however, had been automatically reduced to reclusion perpetua in view of the abolition of the
death penalty. 18

The issue concerning the failure of the prosecution to prove that he had no authority to possess the firearm has
not been raised in this appeal. Interestingly, accused-appellant raised it in his motion to reconsider the decision
of the trial court.  In its resolution denying the motion, the trial court admitted, in effect, that the prosecution did
19

not offer any evidence to prove that the accused-appellant had no license to possess or carry the firearm in
question; it however, threw the burden on the accused-appellant to prove that he has that authority. Thus, it
ruled:

Where accused relies as a matter of defense on an exception in a statute which is not in the enacting
clause by which the offense is described and forbidden, he has the burden of proving that he is within
the exception.

Where the subject matter of a negative averment in the information, or a fact relied upon by defendant as
a justification or excuse, relates to him personally or otherwise lie peculiarly within his knowledge, the
general rule is that the burden of proof of such averment or fact is on him (16 C.J. sec. 998, p. 530). An
illustrative case of this rule may be found in prosecution for exercising a trade or profession, or doing
other acts, without a license. In such cases, it would greatly inconvenience the prosecution to prove that
the defendant had no license, whereas the defendant could easily prove that he did have one.

In cases of illegal possession of firearms, the burden of proof as to the negative averments in the
information to the effect that the accused possesses the firearms without the corresponding license is on
the defense. It is the accused who is called upon to prove that he possesses the license. In other words,
the fact relied upon by the accused as a justification or excuse being one that is related to him personally
or otherwise within his peculiar knowledge, "the general rule is that the burden of proof as to such
averment or fact is on the accused" (Francisco, Handbook on Evidence, pp. 379-380, 1984 Ed., citing
cases). 20

Section 1 of P.D. No. 1866 reads:

SECTION 1. Unlawful Manufacture, Sale Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition.
— The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon
any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of
firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.
x x x           x x x          x x x

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor.

Undoubtedly, there is unlawful possession under the foregoing section if one does not have the license to
possess the firearm. Even if he has the license, he cannot carry the firearm outside his residence without legal
authority therefor. It follows then that the lack or absence of a license is an essential ingredient of the offense
which the prosecution must allege and prove. Every element of the crime must be alleged and proved. 21

In People vs. Pajenado, L-27680-81, 27 February 1970,  We said:

22

It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to
support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove
the issuance to him of a license to possess the firearm, but we are of the considered opinion that under
the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the
burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the
prosecution must be proven if "it is an essential ingredient of the offense charged", the burden of proof

64
 was with the prosecution in to case to prove that the firearm used by appellant in committing the offense
charged was not properly licensed.

It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal
possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower
court (now G.R. No. 27681) specifically alleged that he had no "license or permit to possess" the .45
caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's duty not merely to
allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs.
Tria, 17 Phil. 303, the accused was charged with "having criminally inscribed himself as a voter knowing
that he had none of the qualifications required to be a voter. It was there held that the negative fact of
lack of qualification to be a voter was an essential element of the crime charged and should be proved
by the prosecution. In another case (People vs. Quebral, 68 Phil. 564) where the accused was charged
with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases
suffered by certain patients from whom he received monetary compensation, without having previously
obtained the proper certificate of registration from the Board of Medical Examiners, as provided in
Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like,
for instance, the act of voting without the qualifications provided by law is an essential ingredient of the
offense charged, the prosecution has the burden of proving the same, although in view of the difficulty of
proving a negative allegation, the prosecution, under such circumstance, need only establish a prima
facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor
General agree that there was not even a prima facie case upon which to hold appellant guilty of the
illegal possession of a firearm. Former Chief Justice Moran upholds this view as follows:

The mere fact that the adverse party has the control of the better means of proof of the fact
alleged, should not relieve the party making the averment of the burden of proving it. This is so,
because a party who alleges a fact must be assumed to have acquired some knowledge thereof,
otherwise he could not have alleged it. Familiar instance of this is the case of a person
prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a
license. How could the prosecution aver the want of a license if it had acquired no knowledge of
that fact? Accordingly, although proof of the existence or non-existence of such license can, with
more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party alleging
the want of the license to prove the allegation. Naturally, as the subject matter of the averment is
one which lies peculiarly within the control or knowledge of the accused prima facie evidence
thereof on the part of the prosecution shall suffice to cast the onus upon him. (6 Moran,
Comments on the Rules of Court, 1963 edition, p. 8).

There being no proof that accused-appellant had no license to possess the firearm in question, he could not be
convicted for illegal possession of a firearm. The trial court then committed an error in holding the accused-
appellant guilty thereof. However, as above-stated, the accused-appellant did not touch this issue in his Brief. Be
that as it may, the rule is well-settled that an appeal in a criminal case opens the whole case for review and this
includes the review of the penalty, indemnity and the damages involved. 23

In People vs. Borbano, 76 Phil. 702, 708, We ruled:

. . . In a criminal case, an appeal to the Supreme Court throws the whole case open for review, and it
becomes the duty of the Court to correct such errors as may be found in the judgment appealed
from, whether they are made the subjects of assignments of error or not. (People vs. Ofindo, 47 Phil. 1).

Accordingly, it is proper for this Court to consider in favor of the accused-appellant the absence of proof of illegal
possession of a firearm. But, may accused-appellant be convicted for murder under the information for which he
was tried? The answer is in the affirmative since, as We stated earlier, the information sufficiently alleges the
commission of murder; hence, a conviction for murder, if warranted by the facts, can be had under the
information.  If murder is not proved by reason of the absence of any qualifying circumstance, conviction for the
24

lesser crime of homicide is also proper. 25

We are also unable to agree with the trial court that the qualifying circumstance of treachery was duly
established.

There is treachery when the offender commits any of the crimes against persons employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution without risk to himself
65
arising from the defense which the offended party might make, which means that no opportunity was given to the
latter to do so.  It cannot be presumed; it must be proved by clear and convincing evidence or as conclusively as
26

the killing itself.  For, as held in U.S. vs. Perdon  where no particulars are known as to the manner in which the
27 28

aggression was made or how the act which resulted in the death of the victim began and developed, it can in no
way be established from mere suppositions, drawn from circumstances prior to the very moment of the
aggression, that an accused perpetrated the killing with treachery.  Accordingly, treachery cannot be considered
29

where the lone witness did not see the commencement of the assault. 30

In People vs. Manalo, supra, We ruled:

The fact that the fatal wounds were found at the back of the deceased does not, by itself, compel a
finding of treachery. Such a finding must be based on some positive proof and not merely an inference
drawn more or less logically from hypothetical facts. This Court has ruled that the suddenness of an
attack is not, of itself, enough to constitute treachery when the method of the killing does not positively
show that the assailant thereby knowingly intended to ensure the accomplishment of his purpose without
risk to himself from any defense which the victim might put up. In other words, to sustain a finding of
treachery, the means, method or form of attack must be shown to have been deliberately adopted by the
appellant. (citing People vs. Carsano, 95 SCRA 146; People vs. Cabiling, 74 SCRA 185; People vs.
Satone, 74 SCRA 106; People vs. Bongo, 55 SCRA 547).

In People vs. Ablao, 183 SCRA 65, 669, We said:

There being no direct evidence on how the shooting was committed, treachery cannot be appreciated.

In the instant case, no witness who could have seen how the deceased was shot was presented.  Absent the
1âwphi1

quantum of evidence required to prove it, treachery cannot be considered against the accused-appellant.

Accordingly, accused-appellant could only be liable for HOMICIDE, which is punished by RECLUSION
TEMPORAL. It shall be imposed in its medium period, whose duration is from 14 years, 8 months and 1 day to
17 years and 4 months, since neither aggravating nor mitigating circumstances had been proved. 31

The Indeterminate Sentence Law benefits the accused-appellant. Applying it in this case, he may be sentenced
to suffer an indeterminate penalty of eight years and one day of prision mayor, as minimum, to fourteen years,
eight months and one day of reclusion temporal as maximum.

The civil indemnity imposed by the trial court should be increased from P30,000.00 to P50,000.00 conformably
with our ruling in People vs. Sison, G.R. No. 86455, 14 September 1990 and in People vs. Sazon, G.R. No.
89684, 18 September 1990.

WHEREFORE, judgment is hereby rendered MODIFYING the subject decision of the trial court, and as
Modified, FINDING the accused-appellant EUTROPIO TIOZON Y ACID guilty beyond all reasonable doubt of
the crime of HOMICIDE, as defined and penalized under Article 249 of the Revised Penal Code, for the killing of
Leonardo Bolima, and applying the Indeterminate Sentence Law, he is hereby SENTENCED to suffer an
indeterminate penalty of imprisonment ranging from EIGHT YEARS AND ONE DAY of prision mayor, as
Minimum, to FOURTEEN YEARS, EIGHT MONTHS AND ONE DAY of reclusion temporal as Maximum, with the
accessory penalties therefor, to INDEMNIFY the heirs of Leonardo Bolima in the sum of FIFTY THOUSAND
PESOS (P50,000.00), without subsidiary imprisonment in case of insolvency, and to REIMBURSE said heirs in
the sum of FIFTY THOUSAND PESOS (P50,000.00) as reasonable expenses for the wake and burial of
Leonardo Bolima.

Accused-appellant shall be given full credit for the period of his preventive imprisonment.

Costs against accused-appellant.

SO ORDERED.

Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

66
G. R. Nos. 102009-10 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-
appellant.

The Solicitor General for plaintiff-appellee. Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:

The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by
ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-
SFP) against the Government. At that time, various government establishments and military camps in Metro
Manila were being bombarded by the rightist group with their "tora-tora" planes. At around midnight of November
30, 1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout
Rangers took over the Headquarters of the Philippine Army, the Army Operations Center, and Channel 4, the
government television station. Also, some elements of the Philippine Army coming from Fort Magsaysay
occupied the Greenhills Shopping Center in San Juan, Metro Manila.  1

Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of
ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases
Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon
City, Branch 103.

In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names
and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition
and explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No.
1866, allegedly committed as follows:

That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA,
PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping one another, and without authority of
law, did then and there willfully, unlawfully, feloniously and knowingly have in their possession,
custody and control, the following to wit:

67
 Five (5) bundles of C-4 or dynamites
Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs

without first securing the necessary license and/or permit to possess the same from the proper
authorities, and armed with said dynamites, ammunition and explosives and pursuant to their
conspiracy heretofore agreed upon by them and prompted by common designs, come to an
agreement and decision to commit the crime of rebellion, by then and there participating therein
and publicly taking arms against the duly constituted authorities, for the purpose of overthrowing
the Government of the Republic of the Philippines, disrupting and jeopardizing its activities and
removing from its allegiance the territory of the Philippines or parts thereof. 
2

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several
John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City
upon the person of Crispin Sagario who was shot and hit on the right thigh.

Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of
attempted homicide.

During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not
authorized to possess any firearms, ammunition and/or explosive.   The parties likewise stipulated that there was
3

a rebellion during the period from November 30 up to December 9, 1989.  4

The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division,
National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the
Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed
of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The
surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted
pursuant to an intelligence report received by the division that said establishment was being occupied by
elements of the RAM-SFP as a communication command post.

Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar
building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance
on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment near Camp
Aguinaldo. After a while, a group of five men disengaged themselves from the crowd and walked towards the car
of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the approaching group
and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then
only six meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in
the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because
they sought cover inside the car and they were afraid that civilians or bystanders might be caught in the cross-
fire.

As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio
Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry
Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six
cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs
inside one of the rooms belonging to a certain Col. Matillano which is located at the right portion of the building.
Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col.
Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present
inside the room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team
arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building.
They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by
the raiding team. No search warrant was secured by the raiding team because, according to them, at that time
there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel
forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the
courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a
certain Mr. Gutierrez and that appellant is supposedly a "boy" therein.

Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989,
he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales
68
Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales
Office on December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building.
According to him, he was tasked to guard the office of Col. Matillano which is located at the right side of the
building. He denies, however, that he was inside the room of Col. Matillano when the raiding team barged in and
that he had explosives in his possession. He testified that when the military raided the office, he was ordered to
get out of his house and made to lie on the ground face down, together with "Obet" and "Dong" who were
janitors of the building. He avers that he does not know anything about the explosives and insists that when they
were asked to stand up, the explosives were already there.

Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated
National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the
1987 coup d' etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano
then told him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his
arrest at the Eurocar office, appellant worked for Matillano.

De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni
Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."

On February 22, 1991, the trial court rendered judgment   acquitting appellant Rolando de Gracia of attempted
5

homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in
furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a
recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and
pursuant to the spirit contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that Rolando
de Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior.

That judgment of conviction is now challenged before us in this appeal.

Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that
he did not have either physical or constructive possession thereof considering that he had no intent to possess
the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found;
he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of
Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which
is necessary before one can be convicted under Presidential Decree No. 1866, was not present in the case at
bar.

Presidential Decree No. 1866 provides as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearms, part of firearms, ammunition or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes
of rebellion, insurrection or subversion, the penalty of death shall be imposed.

Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and
which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable
resources of the country. The series of coup d' etats unleashed in the country during the first few years of the
transitional government under then President Corazon P. Aquino attest to the ever-growing importance of laws
such as Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or
acts which tend to disturb public peace and order.

69
I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally
possess firearms and ammunition.

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the
law requires is merely possession which includes not only actual physical possession but also constructive
possession or the subjection of the thing to one's control and management.   This has to be so if the manifest
6

intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes
exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object
of this law the proprietary concept of the possession can have no bearing whatsoever.  7

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession
of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special
law,   in which case good faith and absence of criminal intent are not valid defenses. 
8 9

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the
crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to
commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself.
In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it
is enough that the prohibited act is done freely and consciously.  10

In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the part of the accused.   Such intent to
11

possess is, however, without regard to any other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an
offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess the same, even if
such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be

considered a violation of a statute prohibiting the possession of this kind of weapon,   such as Presidential
12

Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of
having intentionally possessed several firearms, explosives and ammunition without the requisite license or
authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter
the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in the
room and holding the several explosives marked in evidence as Exhibits D to D-4.   At first, appellant denied any
13

knowledge about the explosives. Then, he alternatively contended that his act of guarding the explosives for and
in behalf of Col. Matillano does not constitute illegal possession thereof because there was no intent on his part
to possess the same, since he was merely employed as an errand boy of Col. Matillano. His pretension of
impersonal or indifferent material possession does not and cannot inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in
the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a
former soldier, having served with the Philippine Constabulary prior to his separation from the service for going
on absence without leave
(AWOL).   We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable
14

about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military
from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous
uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his
possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives
were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in
a gun store, an arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if
70
he finds articles of this nature in a place intended to carry out the business of selling cars and which has nothing
to do at all, directly or indirectly, with the trade of firearms and ammunition.

On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually
intended to possess the articles confiscated from his person.

II. The next question that may be asked is whether or not there was a valid search and seizure in this case.
While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto
by the parties, to delve into the legality of the warrantless search conducted by the raiding team, considering the
gravity of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search
warrant at that time.   The raid was actually precipitated by intelligence reports that said office was being used
15

as headquarters by the RAM.   Prior to the raid, there was a surveillance conducted on the premises wherein
16

the surveillance team was fired at by a group of men coming from the Eurocar building. When the military
operatives raided the place, the occupants thereof refused to open the door despite requests for them to do so,
thereby compelling the former to break into the office.   The Eurocar Sales Office is obviously not a gun store
17

and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is
primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered
firearms and explosives could not be justifiably or even colorably explained. In addition, there was general chaos
and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the
nearby Camp Aguinaldo which was under attack by rebel forces.   The courts in the surrounding areas were
18

obviously closed and, for that matter, the building and houses therein were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the
exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into
account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed.
There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the
situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the
courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was
closed.   Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with.
19

The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs.
Malmstedt   and bears reiteration:
20

While it is true that the NARCOM officers were not armed with a search warrant when the search
was made over the personal effects of accused, however, under the circumstances of the case,
there was sufficient probable cause for said officers to believe that accused was then and there
committing a crime.

Probable cause has been defined as such facts and circumstances which would lead a
reasonable, discreet and prudent man to believe that an offense has been committed, and that
the objects sought in connection with the offense are in the place sought to be searched. The
required probable cause that will justify a warrantless search and seizure is not determined by
any fixed formula but is resolved according to the facts of each case.

Warrantless search of the personal effects of an accused has been declared by this Court as
valid, because of existence of probable cause, where the smell of marijuana emanated from a
plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted
to flee.

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in
his possession. Said information was received by the Commanding Officer of NARCOM the very
same morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein
accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him

71
 prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case, the police
authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas,
San Fernando, Pampanga, against persons engaged in the traffic of dangerous drugs, based on
information supplied by some informers. Accused Tangliben who was acting suspiciously and
pointed out by an informer was apprehended and searched by the police authorities. It was held
that when faced with on-the-spot information, the police officers had to act quickly and there was
no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the
bus (where accused was riding) and the passengers therein, and no extensive search was
initially made. It was only when one of the officers noticed a bulge on the waist of accused,
during the course of the inspection, that accused was required to present his passport. The
failure of accused to present his identification papers, when ordered to do so, only managed to
arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a
regular norm for an innocent man, who has nothing to hide from the authorities, to readily present
his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken
together as a whole, led the NARCOM officers to reasonably believe that the accused was trying
to hide something illegal from the authorities. From these circumstances arose a probable cause
which justified the warrantless search that was made on the personal effects of the accused. In
other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag
and in opening one of the wrapped objects found inside said bag (which was discovered to
contain hashish) as well as the two (2) teddy bears with hashish stuffed inside them, were
prompted by accused's own attempt to hide his identity by refusing to present his passport, and
by the information received by the NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to
act accordingly, including, to search even without warrant, in the light of such circumstances,
would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of
society.

In addition, we find the principle enunciated in Umil, et al., vs. Ramos,

et al.,   applicable, by analogy, to the present case:
21

The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in
the course of an armed conflict, to quell the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment
to arresting or capturing persons committing overt acts of violence against government forces, or
any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is
thus impelled by the exigencies of the situation that involves the very survival of society and its
government and duly constituted authorities. If killing and other acts of violence against the
rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging
a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons
and detaining them while any of these contingencies continues cannot be less justified.

III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until
December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the
firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of
rebellion.

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 Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period."
The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano
(whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is
72
guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this
finding of the lower court.

The above provision of the law was, however, erroneously and improperly used by the court below as a basis in
determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that
appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under
Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134
and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with discrete
penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other
offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a
rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as part of a rebellion.  22

As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the
Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is
penalized under two different statutes with different penalties, even if considered highly advantageous to the
prosecution and onerous to the accused.   It follows that, subject to the presence of the requisite elements in
23

each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and
135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is
an offense punished by a special law while the second is a felony punished by the Revised Penal Code,   with 24

variant elements.

It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in
this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for
executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good
behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon
should be insulated against any tenuous importunity.

Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De
Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In the
words of the court a quo:

2. the nature and quantity of the items — 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo
and 100 bottles of molotov bombs indicate that the reports received by the military that the
Eurocar Sales Building was being used by the rebels was not without basis. Those items are
clearly not for one's personal defense. They are for offensive operations. De Gracia admitted that
per instruction of Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay
guard there.

His manifestation of innocence of those items and what he has been guarding in that office is not
credible for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on
November 30, 1989 many soldiers and ex-soldiers were present which self-evidently discloses
that De Gracia, in the company of his boss, was still very much at home and constantly in touch
with soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a
military coup d' etat; (c) it appears that he is the only person tasked with caretaking (sic) there in
the Matillano office, which shows that he is a highly trusted right-hand man of Col. Matillano; and
(d) as heretofore discussed, De Gracia was earlier seen with some men who fired upon a car of
the AFP intelligence agents.  25

Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and
ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was committed
under the governance of that law, the imposition of the death penalty was proscribed by the Constitution.
Consequently, appellant De Gracia could only be sentenced to serve the penalty of reclusion perpetua which
was correctly meted out by the trial court, albeit with an erroneous recommendation in connection therewith.

WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein
for executive clemency and the supposed basis thereof are hereby DELETED, with costs against accused-
appellant.

73
SO ORDERED.

G.R. No. 133489 & G.R. No. 143970            January 15, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RONALD a.k.a "ROLAND" GARCIA y FLORES,* RODANTE ROGEL y ROSALES, ROTCHEL LARIBA y
DEMICILLO, and GERRY B. VALLER, accused-appellants.

PER CURIAM:

In Crim. Case No. Q-96-68049 accused-appellants Ronald a.k.a Roland Garcia y Flores, Rodante Rogel y
Rosales, Rotchel Lariba y Demicillo and Gerry B. Valler, along with a certain Jimmy Muit, were charged with and
convicted of kidnapping for ransom and were sentenced each to death, except aforementioned Jimmy Muit who
has remained at large, for obvious reasons, and to indemnify their victim Romualdo Tioleco P200,000.00 and to
pay the costs.
1

In a related case, Crim. Case No. Q-96-68050, which was decided jointly with Crim. Case No. Q-96-68049,
accused-appellants Rotchel Lariba and Rodante Rogel were also found guilty of illegal possession of firearms
and ammunition and each sentenced to an indeterminate prison term of four (4) years, nine (9) months and
eleven (11) days of prision correccional as minimum, to eight (8) years, eight (8) months and one (1) day
of prision mayor as maximum, and to pay a fine of P30,000.00 plus the costs. No notice of appeal was filed in
2  3 

this criminal case; nonetheless, for reasons herein below stated, we take cognizance of the case.

Atty. Romualdo Tioleco was jogging alone at Gilmore Avenue, New Manila, Quezon City, at about 5:30 o'clock in
the morning of 5 October 1996. He was heading towards 4th Avenue when he noticed a blue car parked at the
4 

corner of this street. As he was about to cross 4th Avenue, the car lurched towards him and stopped. Two (2)
5  6 

men quickly alighted from the car. One of them pointed a gun at Atty. Tioleco while the other hit his back and
7 

pushed him into the back seat of the car. Once inside, he saw two (2) other men, one on the driver's seat and
8 

the other on the back seat directly behind the driver. He found out later the identities of the driver whom he
9 

undoubtedly recognized during the abduction to be accused-appellant Gerry Valler, and of the other person on
the passenger seat behind Valler as accused-appellant Roland "Ronald" Garcia. He described the man who
10 

disembarked from the car and who pushed him inside to be 5'5" or 5'6" in height, medium built, and the other,
who threatened him with a gun, at 5'4" or 5'5" in height, dark complexioned and medium built although heftier
than the other. These two (2) persons have since the commission of the crime have remained at large.
11 

74
While inside the car Atty. Tioleco was made to crouch on the leg room. As it sped towards a destination then 12 

unknown to the victim, the men on board feigned to be military men and pestered him with the accusation of
being a drug pusher and the threat of detention at Camp Crame. As they were psyching him down, "they started 13 

putting blindfold on [him] and packaging tape on [his]face and handcuffed [him] on the back of [his] body." His 14 

eyeglasses were taken off "when they were putting blindfold on [him] x x x." Then they divested him of his other 15 

personal belongings, e.g., his keys, wristwatch, etc. 16

The car cruised for thirty (30) to forty-five (45) minutes. When it finally stopped, Atty. Tioleco was told to alight,
17 

led to a house and then into a room. He remained blindfolded and handcuffed throughout his ordeal and made
18 

to lie down on a wooden bed. During his captivity, one of the kidnappers approached him and told him that he
19 

would be released for a ransom of P2 million although the victim bargained for an amount between P50,000.00
20 

and P100,000.00 which according to him was all he could afford. While still under detention, one of his
abductors told him that they had mistaken him for a Chinese national and promised his release without
ransom. But he was just being taken for a ride since the kidnappers had already begun contacting his sister
21 

Floriana Tioleco.

Floriana was at her office when her mother called up about her brother's kidnapping. Floriana hurried home to 22 

receive a phone call from a person who introduced himself as "Larry Villanueva" demanding P3 million for Atty.
Tioleco's ransom. Several other calls to Floriana were made during the day and in one of those calls the ransom
23 

was reduced to P2 million. Around 7:00 o'clock in the evening of the same day, 5 October 1996, P/Sr. Insp.
24 

Ronaldo Mendoza of the Presidential Anti-Crime Commission (PACC) arrived at Floriana's house to monitor her
brother's kidnapping upon the request of her friends. Floriana received the following day about eight (8) phone
25 

calls from the kidnappers still demanding P2 million for her brother's safe release. 26

By the end of the day on 7 October 1996 Floriana was able to raise only P71,000.00, which she relayed to the 27 

kidnappers when they called her up. They finally agreed to set her brother free upon payment of this amount,
28 

which was short of the original demand. The pay-off was scheduled that same day at around 8:00 o'clock in the
29 

evening at Timog Avenue corner Scout Tuazon in Quezon City near the "Lighthaus" and "Burger
Machine." Upon instruction of P/Sr. Insp. Mendoza, Floriana together with only two (2) female friends proceeded
30 

to this meeting place. They reached there at 8:40 o'clock in the evening and waited for the kidnappers until
31 

about 10:30 or 11:00 o' clock that evening. 32

Meanwhile, P/Sr. Insp. Mendoza relayed the information about the pay-off and other relevant facts to P/Chief
Insp. Gilberto Cruz at the PACC headquarters. With the information from P/Sr. Insp. Mendoza, P/Chief Insp.
33 

Cruz, together with P/Chief Insps. Winnie Quidato and Paul Tucay with P/Sr. Insp. Nilo Pagtalunan, immediately
went to Timog Avenue corner scout Tuazon near the "Lighthaus" and "Burger Machine" in Quezon City. They 34 

surveyed this site and saw a blue Toyota Corona with three (3) persons on board suspiciously stopping about
five (5) meters from Floriana and her friends and remaining there for almost two (2) hours. 35

Floriana and her friends left the "pay-off site" after waiting for two (2) hours more or less; so did the blue Toyota 36 

Corona almost simultaneously. No payment of ransom took place. P/Chief Insp. Cruz then ordered P/Chief
37  38 

Insps. Quidato and Tucay and their subordinates to tail this car which they did all the way to the De Vega
Compound at Dahlia Street in Fairview, Quezon City. This compound consisted of one bungalow house and 39 

was enclosed by a concrete wall and a steel gate for ingress and egress. They posted themselves thirty (30) to 40 

forty (40) meters from the compound to reconnoiter the place. Meanwhile, the kidnappers explained in a phone 41 

call to Floriana that they had aborted the pay-off on account of their belief that her two (2) companions at the
meeting place were police officers. But she assured them that her escorts were just her friends.
42  43

At around 1:00 o'clock in the afternoon of 8 October 1996 Floriana received a call from the kidnappers at her
house who wanted to set another schedule for the payment of the ransom money an hour later or at 2:00
44 

o'clock. This time the rendezvous would be in front of McDonald's fastfood at Magsaysay Boulevard in Sta.
45 

Mesa, Manila. She was told by the kidnappers that a man would go near her and whisper "Romy" to whom she
46 

would then hand over the ransom money. Floriana agreed to the proposal. With her two (2) friends, she rushed
to the place and brought with her the P71,000.00. About this time, the same blue Toyota Corona seen at the
47 

first pay-off point left the De Vega Compound in Fairview. A team of PACC operatives under P/Chief Insp. Cruz 48 

again stationed themselves in the vicinity of McDonald's. 49

Floriana arrived at the McDonald's restaurant and waited for a few minutes. Not long after, the blue Toyota 50 

Corona was spotted patrolling the area. The blue car stopped and, after dropping off a man, immediately left the
51 

75
place. The man approached Floriana and whispered "Romy" to her. She handed the money to him who took
52 

it. Floriana identified this man during the trial as accused-appellant Roland (Ronald) Garcia.
53  54

The PACC operatives tried to follow the blue car but were prevented by traffic. They were however able to catch 55 

up and arrest Garcia who was in possession of the ransom money in the amount of P71,000.00. They brought 56 

him inside their police car and there apprised him of his custodial rights. Garcia informed the PACC operatives
57 

that Atty. Tioleco was being detained inside the De Vega compound in Fairview. With this information, P/Chief 58 

Insp. Cruz ordered P/Chief Insps. Tucay and Quidato who had been posted near the compound to rescue the
victim. 59

The two (2) PACC officers, together with their respective teams, entered the compound and surged into the
bungalow house where they saw two (2) men inside the living room. As one of the PACC teams was about to
60 

arrest the two (2) men, the latter ran towards a room in the house where they were about to grab a .38 cal.
revolver without serial number loaded with six (6) rounds of ammunitions and a .357 cal. revolver with six (6) live
ammunitions. The other PACC team searched the house for Atty. Tioleco and found him in the other room. The
61  62 

two (2) men were arrested and informed of their custodial rights. They were identified in due time as accused-
appellants Rodante Rogel and Rotchel Lariba. 63

P/Chief Insp. Cruz arrived at the De Vega compound and coordinated with the proper barangay
64 

authorities. While the PACC operatives were completing their rescue and arrest operations, the house phone
65 

rang. Accused-appellant Rogel answered the call upon the instruction of P/Chief Insp. Cruz. Rogel identified
66  67 

the caller to be accused-appellant Valler who was then driving towards the De Vega compound. In the same 68 

phone call, Valler also talked with accused-appellant Garcia to inquire about the ransom money. 69

Then a blue Toyota Corona arrived at the De Vega compound. Valler alighted from the car and shouted at the
70 

occupants of the house to open the gate. Suspicious this time, however, he went back to his car to flee. But the
71  72 

PACC operatives pursued his car, eventually subduing and arresting him. The operations at the De Vega 73 

Compound ended at 8:30 in the evening and the PACC operatives, together with Atty. Tioleco and the accused-
appellants, left the De Vega compound and returned to their headquarters in Camp Crame, Quezon City. The 74 

ransom money was returned intact to Atty. Tioleco. 75

When arraigned, accused-appellants Ronald "Roland" Garcia, Rodante Rogel, Rotchel Lariba and Gerry Valler
pleaded not guilty to the charge of kidnapping for ransom in Crim. Case No. Q-96-68049, although during the
trial Garcia admitted complicity in the abduction of Atty. Tioleco and in the receipt of the ransom money from the
victim's sister Floriana. In Crim. Case No. Q-96-68050 for illegal possession of firearms and ammunition,
76 

Rodante Rogel and Rotchel Lariba also pleaded not guilty. 77

During the trial, Gerry Valler denied being part of the kidnapping for ransom and asserted that he was at the De
Vega compound where he was arrested on 8 October 1996 solely to pay for the fighting cocks he had bought
from one Jimmy Muit, alleged owner of the compound. Accused Ronald Garcia, despite his admission to the
78 

crime, nevertheless disowned any role in planning the crime or knowing the other accused-appellants since his
cohorts were allegedly Jimmy Muit and two (2) others known to him only as "Tisoy" and "Tony." He also alleged 79 

that it was Jimmy Muit's red Toyota car that was used in the crime. Explaining their presence at the De Vega
80 

compound at the time they were arrested, Rogel claimed that he was employed as a helper for breeding cocks in
this compound while Lariba's defense focused on an alleged prior agreement for him to repair Jimmy Muit's
81 

car. 82

Accused-appellants filed separate appellants' briefs. In the brief submitted by the Public Attorneys Office in
behalf of accused-appellants Garcia, Rogel and Lariba, they argue that the crime of kidnapping for ransom was
not committed since Atty. Tioleco was released from detention by means of the rescue operation conducted by
the PACC operatives and the ransom money subsequently recovered. They conclude that their criminal liability
83 

should only be for slight illegal detention under Art. 268, of The Revised Penal Code. Accused-appellants Rogel
and Lariba further assert that they could not be held guilty of illegal possession of firearms and ammunition since
neither was in complete control of the firearms and ammunition that were recovered when they were arrested
and no evidence was offered to prove responsibility for the presence of firearms and ammunition inside the
room. 84

The brief filed for accused-appellant Gerry B. Valler asserts the same defense he made at the trial that he was at
the De Vega compound only to pay his debts to Jimmy Muit, arguing that Atty. Tioleco did not have the
85 

opportunity to really recognize him so that his identification as the driver of the car was tainted by police
76
suggestion, and that P/Chief Insp. Cruz' testimony is allegedly replete with inconsistencies that negate his
credibility.
86

Encapsulated, the issues herein focun on (a) the "ransom" as element of the crime under Art. 267 of The
Revised Penal Code, as amended; (b) the sufficiency of the prosecution evidence to prove kidnapping for
ransom; (c) the degree of responsibility of each accused-appellant for kidnapping for ransom; and, (d) the liability
for illegal possession of firearms and ammunition under RA 8294, amending PD 1866.

First. We do not find any quantum of merit in the contention that kidnapping for ransom is committed only when
the victim is released as a result of the payment of ransom. In People v. Salimbago we ruled -
87 

No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it
was intended as a bargaining chip in exchange for the victim's freedom. In municipal criminal law,
ransom refers to the money, price or consideration paid or demanded for redemption of a captured
person or persons, a payment that releases from captivity. Neither actual demand for nor actual payment
of ransom is necessary for the crime to be committed. It is enough if the crime was committed "for the
purpose of extorting ransom." Considering therefore, that the kidnapping was committed for such
purpose, it is not necessary that one or any of the four circumstances be present.

So the gist of the crime, as aptly stated in American jurisprudence from which was derived the crime of
kidnapping for ransom, is "not the forcible or secret confinement, imprisonment, inveiglement, or kidnapping
88 

without lawful authority, but x x x the felonious act of so doing with intent to hold for a ransom the person so
kidnapped, confined, imprisoned, inveigled, etc." 89

It is obvious that once that intent is present, as in the case at bar, kidnapping for ransom is already committed.
Any other interpretation of the role of ransom, particularly the one advanced by accused-appellants, is certainly
absurd since it ironically penalizes rescue efforts of kidnap victims by law enforcers and in turn rewards
kidnappers for the success of police efforts in such rescue operations. Moreover, our jurisprudence is replete
with cases, e.g., People v. Chua Huy, People v. Ocampo and People v. Pingol, wherein botched ransom
90  91  92 

payments and effective recovery of the victim did not deter us from finding culpability for kidnapping for ransom. 1âwphi1.nêt

Second. Issues of sufficiency of evidence are resolved by reference to findings of the trial court that are entitled
to the highest respect on appeal in the absence of any clear and overwhelming showing that the trial court
neglected, misunderstood or misapplied some facts or circumstances of weight and substance affecting the
result of the case. Bearing this elementary principle in mind, we find enough evidence to prove beyond
93 

reasonable doubt the cooperation of all accused-appellants in the kidnapping for ransom of Atty. Tioleco.

Truly incriminating is the judicial confession of accused-appellant Garcia of his participation in the commission of
the crime. He admitted that he took part in actually depriving Atty. Tioleco of his liberty and in securing the
94 

ransom payment from Floriana Tioleco. He could not have been following mechanically the orders of an alleged
95 

mastermind, as he claims, since by his own admission he was neither threatened, forced or intimidated to do
so nor mentally impaired to resist the orders. In the absence of evidence to the contrary, he is presumed to be
96  97 

in full possession of his faculties and conscience to resist and not to do evil.

We cannot also give credence to Garcia's asseveration that the persons still at large were his co-conspirators.
This posture is a crude attempt to muddle the case as discerned by the trial court from his demeanor when he
testified -

Because he had been caught in flagrante delicto, Roland Garcia admitted his participation in the crime
charged. From his testimony, however, there appears a veiled attempt to shield Gerry Valler from
conviction. First, Garcia claimed that the car they used was reddish in color (TSN, October 20, 1997, pp.
9, 19 & 20). Then he added that the owner of the car was Jimmy Muit and not Gerry Valler (TSN,
October 20, 1997, p. 9). Next, he said that there was no conspiracy and he did not know then Gerry
Valler, Rodante Rogel and Rogel Lariba until they were placed together in Camp Crame (Ibid., p. 22).

The Court however cannot simply accept this part of his story. To begin with, his repeated reference to the color
of the car as reddish is quite suspicious. He conspicuously stressed the color of the car in three (3) instances
without being asked. The transcripts of the notes bear out the following:

77
 ATTY. MALLABO: Did you use any vehicle while you were there at Gilmore Street?
A:       Yes, sir.
Q:       What kind of vehicle was that?
A:       Jimmy's car, a Toyota, somewhat reddish in color x x x x
Q:       By the way, what car did you use when you were roaming around Quezon City on October 6 in
the evening?
A:       Jimmy's car, which was somewhat red in color. Reddish.
Q:       And what car did you use the following day when you took the bag? The same car?
A:       The same car, the Toyota car which was somewhat reddish in color.

Such a clear attempt to mislead and deceive the Court with such unsolicited replies cannot succeed. On
October 8, 1996, in the vicinity of McDonald's, he was seen alighting from the blue Toyota Corona (TSN,
March 17, 1997, pp. 28-32). As earlier pointed out, the blue Toyota Corona car is owned by Gerry Valler
who was the one driving it in the afternoon of the same day to the De Vega compound (TSN, April 28,
1997, pp. 64-67; and November 10, 1997, pp. 22-28). Gerry Valler was also identified by Atty. Tioleco as
the driver of the dark blue car used in his abduction (TSN, April 10, 1997, pp. 10-11; and TSN, April 14,
1997, pp. 21-27). 98

Accused-appellant Valler's profession of innocence also deserves no consideration. Various circumstances

indubitably link him to the crime. For one, he was positively identified by Atty. Tioleco to be the driver of the dark
blue Toyota car used in the abduction on 5 October 1997, which car was seen again twice during the occasions
for ransom payment. This was followed by a telephone call made by Valler to the house where Atty. Tioleco was
being detained and in fact talked with accused-appellant Rogel to tell him that he was coming over and with 99 

accused-appellant Garcia to ask from him about the ransom supposedly earlier collected. Given the
100 

overwhelming picture of his complicity in the crime, this Court cannot accept the defense that he was only trying
to pay his debts to Jimmy Muit when he was arrested.

We find nothing substantive in Valler's attempt to discredit the victim's positive identification of him on the trifling
observation that Atty. Tioleco was too confused at the time of his abduction to recognize accused-appellant's
physical features accurately. It is truly evident from the testimony of Atty. Tioleco that his vision and composure
were not impaired by fear or shock at the time of his abduction and that he had the opportunity to see vividly and
remember unerringly Valler's face -

Q:       Where were these two unidentified men positioned inside the car?
A:       One of them was at the driver's seat and the other one was immediately behind the driver's seat.
Q:       Now, could you please describe to this honorable court the person who was seated on the driver's
seat?
A:       He has a dark complexion, medium built and short hair at that time.
Q:       If you see that person again will you be able to identify him sir?
A:       Yes, sir.
Q:       And if he's present in the courtroom will you be able to point to him?
A:       Yes, sir.
Q:       At this juncture your honor we would like to request with the court's permission the witness be
allowed to step down from the witness stand and approach the person just described and tap him on his
shoulder.

COURT INTERPRETER: Witness stepping down from the witness stand and approached the person he
had just described and tapped him on his shoulder and who when asked to identify himself he gave his
name as Gerry Valler. 101

Even on cross-examination, Atty. Tioleco was steadfast in his reference to Gerry Valler -

Q:       What stage was that when your eyeglasses were grabbed by these persons inside the car?
A:       That was after the other accused entered the vehicle and the car zoomed away, that was when
they were putting a blindfold on me, that was the time when they started removing my eyeglasses, sir x x
xx 102

Q:       So when you were inside the car, you had difficulty seeing things inside the car because you were
not wearing your eyeglasses?
A:       No, sir, that is not correct, because they were close, so I can see them x x x x 103

78
 Q:       And as a matter of fact, it was the PACC operatives who informed you that the person being
brought in was also one of the suspects, am I correct?
A:       That is not correct, sir. They said that, but I know that is one of the suspects because he was the
person who was driving the vehicle at the time I got kidnapped. So I know him.
Q:       So you saw him at the time you were kidnapped that is why you were able to identify him when he
was ushered in?
A:       When he was brought into the kitchen I saw him. When I saw him, I knew he was one of the
suspects.
Q:       When you saw him, he was in handcuffs?
A:       Yes, sir, that is correct.
Q:       You were informed that his name is Gerry Valler?
A:       When he went inside the house and the kitchen, they started interviews, that is where I learned his
name, Gerry Valler x x x x104

Q:       But I thought that when you were pushed inside the car, you were pushed head first, how can you
easily describe this person driving the vehicle and the person whom you now identified as Roland
Garcia?
A:       Even if they pushed my head, there was an opportunity for me to see the face of the accused. 105

As we held in People v. Candelario, it is the most natural reaction for victims of crimes to strive to remember
106 

the faces of their assailants and the manner in which the craven acts are committed. There is no reason to
disbelieve Atty. Tioeleco's claim that he saw the faces of his abductors considering that they brazenly
perpetrated the crime in broad daylight without donning masks to hide their faces. Besides, there was ample
opportunity for him to discern their features from the time two (2) of his kidnappers approached and forced him
into their car and once inside saw the other two (2), including Gerry Valler, long enough to recall them until he
was blindfolded.

The victim's identification of accused-appellant Valler is not any bit prejudiced by his failure to mention Valler's
name in his affidavit. It is well-settled that affidavits are incomplete and inaccurate involving as they do mere
passive mention of details anchored entirely on the investigator's questions. As the victim himself explained -
107 

Q:       Now, in Question No. 5 and I quote x x x Why did you not identify here the name of the driver as
one Gerry Valler?
A:       Because they never asked me the name. They just asked me to narrate what happened. Had they
asked me the name, I could have mentioned the name. 108

In light of the positive identification by the victim of accused-appellant Valler, the latter's denial must fall
absolutely. Clearly, positive identification of the accused where categorical and consistent and without any
showing of ill motive on the part of the eyewitness testifying on the matter prevails over his defense. When
109 

there is no evidence to show any dubious reason or improper motive why a prosecution witness would testify
falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and
credit.
110

Finally, we do not see any merit in Valler's enumeration of alleged inconsistencies in the testimony of P/Chief
Insp. Gilbert Cruz concerning (a) the time and place of meeting between the PACC operatives and Floriana
Tioleco; (b) the schedule of the first and second ransom pay-offs; (c) the number of Floriana Tioleco's
companions during the aborted first pay-off; (d) the number of occupants in the blue Toyota car; and, (e) the
PACC operatives' recognition of Floriana Tioleco during the ransom payments. This is an argument that clutches
at straws. For one, the purported inconsistencies and discrepancies involve estimations of time or number,
hence, the reference thereto by the witness would understandably vary. Furthermore, they are too minor to
warrant the reversal of the judgment of conviction. They do not affect the truth of the testimonies of witnesses
nor do they discredit their positive identification of accused-appellants. On the contrary, such trivial
inconsistencies strengthen rather than diminish the prosecution's case as they erase suspicion of a rehearsed
testimony and negate any misgiving that the same was perjured. 111

We also do not believe that accused-appellants Rogel and Lariba are innocent bystanders in this case. It taxes
the mind to believe Rogel's defense that as a caretaker of the place where Atty. Tioleco was detained, he
observed nothing unusual about this incident. An innocent man would have immediately reported such dastardly
act to the authorities and refused to sit idly by, but a guilty person in contrast would have behaved otherwise as
Rogel did. 112

79
Accused-appellant Lariba's defense is similarly incredible. He joins Gerry Valler in proclaiming that he too was
allegedly at the wrong place at the wrong time for the wrong reason of just wanting to tune up the car of Jimmy
Muit. But for all these assertions, he failed to produce satisfactory evidence that he was indeed there to repair
such car. Of all the days he could have discharged his work, he chose to proceed on 8 October 1997 when the
kidnapping was in full swing. There was even no car to repair on the date that he showed up. Like the
submission of Rogel, Lariba's defense falls completely flat for he could have so easily observed the kidnapping
of Atty. Tioleco that was taking place in the house of Jimmy Muit.

In sum, accused-appellants cannot rely upon the familiar phrase "reasonable doubt" for their acquittal. As
demonstrated by the fastiduous references of Valler to alleged inconsistencies of P/Chief Insp. Cruz, not all
possible doubt is reasonable since in the nature of things everything relating to human affairs is open to some
imaginary dilemma. As we have said in People v. Ramos, "it is not such a doubt as any man may start by
113 

questioning for the sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony,
for it is possible always to question any conclusion derived from testimony. Reasonable doubt must arise from
the evidence adduced or from the lack of evidence, and it should pertain to the facts constitutive of the crime
charged." Accused-appellants have not shown the presence of such fatal defects in this case. Clearly, all the
elements and qualifying circumstances to warrant conviction for the crime of kidnapping for ransom and serious
illegal detention have been established beyond reasonable doubt.

Third. We go into the criminal liability of each accused-appellant. There is no doubt that Gerry Valler and Ronald
Garcia are principals by direct participation and co-conspirators in the kidnapping for ransom of Atty. Tioleco.
Their respective participation in perpetrating the crime cannot be denied. As regards their liability as co-
conspirators, we find the same to have also been shown beyond reasonable doubt. Conspiracy exists when two
or more persons come to agreement concerning the commission of a felony and decide to commit it for which
liability is joint. Proof of the agreement need not rest on direct evidence as the felonious covenant itself may be
114 

inferred from the conduct of the parties before, during, and after the commission of the crime disclosing a
common understanding between them relative to its commission. The acts of Valler and Garcia in coordinating
115 

the abduction, collection of ransom and detention of their victim indubitably prove such conspiracy.

Lariba and Rogel were caught inside the house where Atty. Tioleco was detained. P/Chief Insp. Paul Tucay
testified on their involvement -

Q:       Okey, when you stormed the place, do you know where these two men were?
A:       The two men were seated at the sala during that time, sir.
Q:       They were seated at the sala when you entered the place?
A:       Yes, sir.
Q:       What happened after entering the gate?
A:       We announced that we were police officers of the Presidential Anti-Crime Commission.
Q:       Do you know what happened with these two men during that time?
A:       They were caught by surprise and they were about to run to the first room.
Q:       What happened when these two men who were at the living room or at the sala, when they ran to
the first room?
A:       We surprised them and cornered them in that room.
Q:       What about the team of Major Quidato, where did they proceed?
A:       Major Quidato's team proceeded to the second room where Atty. Tioleco was being kept.
Q:       According to you, you gave chase to these two men who were earlier in the sala and they ran
upon your announcement that you were police officers?
A:       When we cornered them in that room, they were about to grab the two revolvers loaded with six
(6) rounds of ammunitions.
Q:       Where were these revolvers placed, Mr. Witness?
A:       They were placed on top of a cabinet, which, when you enter in the room, is placed on the right
side of the room.
Q:       How many revolvers were you able to recover?
A:       There were two revolvers.
Q:       And can you please describe these revolvers to this Honorable Court?
A:       Yes, sir x x x x The revolvers confiscated on that raid are one (1) .38 caliber revolver without serial
number loaded with 6 rounds of ammunition, live ammo, one .357 also loaded with 6 rounds of live
ammunitions. 116

80
Correlating the above testimony with the other evidence, it is clear that at the time Lariba and Rogel were
caught, Atty. Tioleco had already been rendered immobile with his eyes blindfolded and his hands handcuffed.
No evidence exists that he could have gone elsewhere or escaped. At the precise moment of their
apprehension, accused-appellants Lariba and Rogel were unarmed although guns inside one of the rooms of the
house were available for their use and possession.

Assessing these established circumstances in the manner most favorable to Lariba and Rogel, we conclude that
they were merely guarding the house for the purpose of either helping the other accused-appellants in facilitating
the successful denouement to the crime or repelling any attempt to rescue the victim, as shown by the
availability of arms and ammunition to them. They thus cooperated in the execution of the offense by previous or
simultaneous acts by means of which they aided or facilitated the execution of the crime but without any
indispensable act for its accomplishment. Under Art. 18 of The Revised Penal Code, they are mere accomplices.

In People v. De Vera we distinguished a conspirator from an accomplice in this manner -

117 

Conspirators and accomplices have one thing in common: they know and agree with the criminal design.
Conspirators, however, know the criminal intention because they themselves have decided upon such
course of action. Accomplices come to know about it after the principals have reached the decision, and
only then do they agree to cooperate in its execution. Conspirators decide that a crime should be
committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the
authors of a crime; accomplices are merely their instruments who perform acts not essential to the
perpetration of the offense.

In the instant case, we cannot deny knowledge on the part of Lariba and Rogel that Valler and Garcia had
kidnapped Atty. Tioleco for the purpose of extorting ransom and their cooperation to pursue such crime. But
these facts without more do not make them co-conspirators since knowledge of and participation in the criminal
act are also inherent elements of an accomplice. Further, there is no evidence indubitably proving that Lariba
118 

and Rogel themselves participated in the decision to commit the criminal act. As the evidence stands, they were
caught just guarding the house for the purpose of either helping the other accused-appellants in facilitating the
success of the crime or repelling any attempt to rescue the victim as shown by the availability of arms and
ammunition to them. These items contrast starkly with the tried and true facts against Valler and Garcia that
point to them as the agents ab initio of the design to kidnap Atty. Tioleco and extort ransom from his family. 1âwphi1.nêt

Significantly, the crime could have been accomplished even without the participation of Lariba and Rogel. As
stated above, the victim had been rendered immobile by Valler and Garcia before the latter established contacts
with Floriana Tioleco and demanded ransom. The participation of Lariba and Rogel was thus hardly
indispensable. As we have held in Garcia v. CA, "in some exceptional situations, having community of design
with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the
perpetration of the homicide or murder was, relatively speaking, of a minor character." At any rate, where the
119 

quantum of proof required to establish conspiracy is lacking and doubt created as to whether the accused acted
as principal or accomplice, the balance tips for the milder form of criminal liability of an accomplice.120

We are not unaware of the ruling in People v. Licayan that conspiracy can be deduced from the acts of the
accused-appellants and their co-accused which show a concerted action and community of interest. By guarding
Co and Manaysay and preventing their escape, accused-appellants exhibited not only their knowledge of the
criminal design of their co-conspirators but also their participation in its execution. But the instant case is
121 

different. Considering the roles played by Lariba and Rogel in the execution of the crime and the state the victim
was in during the detention, it cannot be said beyond reasonable doubt that these accused-appellants were in a
real sense detaining Atty. Tioleco and preventing his escape. The governing case law is People v. Chua
Huy where we ruled -
122 

The defendants' statements to the police discarded, the participation of the other appellants in the crime
consisted in guarding the detained men to keep them from escaping. This participation was
simultaneous with the commission of the crime if not with its commencement nor previous thereto. As
detention is an essential element of the crime charged, as its name, definition and graduation of the
penalty therefor imply, the crime was still in being when Lorenzo Uy, Tan Si Kee, Ang Uh Ang, William
Hao and Young Kiat took a hand in it. However, we are not satisfied from the circumstances of the case
that the help given by these accused was indispensable to the end proposed. Our opinion is that these
defendants are responsible as accomplices only.
81
Fourth. In the beginning, we noted that neither Lariba nor Rogel who were both convicted of illegal possession of
firearms and ammunition in Crim. Case No. Q-96-68049 filed a notice of appeal in accordance with established
procedures, although the records show that accused-appellant Gerry Valler needlessly did so exclusively in his
behalf. But in light of the enactment of RA 8294 amending PD 1866 effective 6 July 1997, and our ruling
123  124 

in People v. Ladjaalam followed in Evangelista v. Siztoza, we nonetheless review this conviction to give effect
125  126 

to Art. 22 of The Revised Penal Code mandating in the interest of justice the retroactive application of penal
statutes that are favorable to the accused who is not a habitual criminal. 127

In Ladjaalam we ruled that if another crime was committed by the accused he could not be convicted of simple
illegal possession of firearms under RA 8294 amending PD 1866 -

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court
convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended
by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor x x x x

The trial court's ruling and the OSG's submission exemplify the legal community's difficulty in grappling
with the changes brought about by RA 8294. Hence, before us now are opposing views on how to
interpret Section 1 of the new law, which provides as follows:

Sec. 1. - Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to
read as follows:

Sec. 1.     Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. - The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000)
shall be imposed if the firearm is classified as high powered firearm which includes those with
bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and
also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22
centerfire magnum and other firearms with firing capability of full automatic and by burst of two or
three: Provided, however, That no other crime was committed by the person arrested.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as
an element of the crime of rebellion or insurrection, sedition, or attempted coup d'etat.

The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall willfully
or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the provisions of the preceding
paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms
without any legal authority to be carried outside of their residence in the course of their
employment.

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor.

x x x x A simple reading thereof shows that if an unlicensed firearm is used in the commission of any
crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the "other
crime" is murder or homicide, illegal possession of firearms becomes merely an aggravating

82
 circumstance, not a separate offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of
RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is
justified, for the language of the new law demonstrates the legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and
direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not
homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance x x x
x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that
"no other crime was committed by the person arrested." If the intention of the law in the second
paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the
third paragraph. Verily, where the law does not distinguish, neither should we.

The Court is aware that this ruling effectively exonerates accused-appellants x x x of illegal possession
of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While
the penalty for the first is prision mayor, for the second, it is only prision correccional. Indeed, an
accused may evade conviction for illegal possession of firearms by using such weapons in committing
an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable
by arresto menor. This consequence necessarily arises from the language of RA 8294 the wisdom of
which is not subject to review by this Court.
128

Accordingly, we are constrained to dismiss Crim. Case No. Q-96-68049 and set aside the judgment of conviction
therein since accused-appellants Rotchel Lariba and Rodante Rogel cannot be held liable for illegal possession
of firearms and ammunitions there being another crime - kidnapping for ransom - which they were perpetrating
at the same time.

In fine, we affirm the conviction of Gerry Valler and Ronald "Roland" Garcia as principals and Rotchel Lariba and
Rodante Rogel as accomplices for the crime of kidnapping for ransom and serious illegal detention. This Court is
compelled to impose the supreme penalty of death on Valler and Garcia as mandated by Art. 267 of The
Revised Penal Code, as amended by RA 7659.

The penalty imposable on Lariba and Rogel as accomplices is reclusion perpetua, the penalty one degree lower
than that prescribed for the crime committed pursuant to Art. 52 in relation to Art. 61, par. (1), of the Code. We
however set aside the judgment in Crim. Case No. Q-96-68049 convicting Lariba and Rogel of illegal possession
of firearms and ammunition in light of the foregoing discussion.

As regards the moral damages against accused-appellants to be paid by them in solidum, we find the amount of
P200,000.00 to be reasonable compensation for the ignominy and sufferings Atty. Tioleco and his family
endured due to accused-appellants' inhumane act of detaining him in blindfold and handcuffs and mentally
torturing him and his family to raise the ransom money. The fact that they suffered the trauma of mental,
physical and psychological ordeal which constitute the bases for moral damages under the Civil Code is too
129 

obvious to require still the recital thereof at the trial through the superfluity of a testimonial charade.

Following our finding that only Gerry Valler and Ronald "Roland" Garcia are principals by direct participation and
conspirators while Rotchel Lariba and Rodante Rogel are accomplices, we apportion their respective
responsibilities for the amount adjudged as moral damages to be paid by them solidarily within their respective
class and subsidiarily for the others. Thus, the principals, accused-appellants Ronald "Roland" Garcia and
130 

Gerry Valler, shall pay their victim Atty. Romualdo Tioleco P150,000.00 for moral damages and the accomplices
P50,000.00 for moral damages.

WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim. Case No. Q-96-68049 (G.R. No. 133489)
accused-appellants RONALD "ROLAND" GARCIA y FLORES and GERRY B. VALLER are declared guilty as
PRINCIPALS of kidnapping for ransom and serious illegal detention and are sentenced each to death, while
accused-appellants RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO are convicted as
ACCOMPLICES and are ordered to serve the penalty of reclusion perpetua with the accessories provided by
law for the same crime of kidnapping for ransom and serious illegal detention. Accused-appellants are further
ordered to pay moral damages in the amount of P200,000.00, with the principals being solidarily liable for
P150,000.00 of this amount and subsidiarily for the civil liability of the accomplices, and the accomplices being
solidarily liable for P50,000.00 for moral damages and subsidiarily for the civil liability of the principals.
1âwphi1.nêt

83
Finally, in Crim. Case No. Q-96-68050 (G.R. No. 143970) the Decision of the court a quo convicting RODANTE
ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO of illegal possession of firearms and ammunition
is REVERSED and SET ASIDE in light of the enactment of RA 8294 and our rulings in People v.
Ladjaalam and Evangelista v. Siztoza.
131  132

Four (4) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the
death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death
penalty can be lawfully imposed in the case at bar.

In accordance with Art. 83 of The Revised Penal Code, as amended by Sec. 25 of RA No. 7659, upon the finality
of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible
exercise of Her Excellency's pardoning power. Costs against accused-appellants.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

G.R. No. 102706           January 25, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEON LUMILAN, ANTONIO GARCIA and FRED ORBISO, accused-appellants.

DE LEON, JR., J.:

Before us is an appeal from the Decision dated September 20, 1990 of the Regional Trial Court (RTC) of Ilagan,
1 

Isabela, Branch 16, in Criminal Case No. 955, finding accused-appellants Leon Lumilan and Antonio Garcia
guilty beyond reasonable doubt of three (3) counts of murder, two (2) counts of frustrated murder, and three (3)
counts of attempted murder, under an Information charging them and accused Fred Orbiso with the crime of
2 

Qualified Illegal Possession of Firearms Used in Murder, in violation of Presidential Decree (P.D.) No. 1866.

The Information reads as follows:

3 

The undersigned Provincial Fiscal accuses FRED ORBISO, LEON LUMILAN and ANTONIO GARCIA of
the crime of QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN MURDER, in violation of
Presidential Decree No. 1866, committed as follows:

That on or about the 12th day of October 1987, in the municipality of Ilagan, Province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being
authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully,
unlawfully and feloniously have in their possession and under their control and custody, firearms
without first having obtained the necessary permit and/or license to possess the same, and that
on the occasion of such possession, the herein accused with treachery did then and there
wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving
them chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque,
and Eliong dela Cruz inflicting upon them gunshot wounds which directly caused their deaths;
and further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho,
Nolasco Estrada, Mario Palomo and Simeon Pacano, which injuries would ordinarily cause the
death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon
Pacano, thus performing all the acts of execution which should have produced the crime of

84
 murder with respect to the last named victims as a consequence, but nevertheless, did not
produce it by reason of causes independent of their will, that is, by the timely and able medical
assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo
and Simeon Pacano which prevented their deaths.

CONTRARY TO LAW. 4

Upon being arraigned, appellants Leon Lumilan and Antonio Garcia entered the plea of "not guilty."

The evidence of the prosecution reveals that in the early evening of October 12, 1987, Meliton Asuncion,
Modesto Roque, Eliong dela Cruz, Jerry Palomo, Simeon Pacano, Benito Alonzo, Nolasco Estrada, Mario
Palomo and Romeo Pacho were drinking liquor inside the house of Policarpio Palomo when it was sprayed with
bullets. The successive gunshots emanated from the fence about six (6) meters away from where they were
drinking, killing Meliton Asuncion, Modesto Rogue, and Eliong dela Cruz and seriously wounding Jerry Palomo,
Simeon Pacano, Nolasco Estrada, Mario Palomo and Romeo Pacho. Prosecution eyewitness Simeon Pacano
was hit in the left leg causing him to fall on his face. When the firing ceased, he remained in the said position
pretending to be dead, as he recognized accused Fred Orbiso who entered the house and checked the bodies
of the victims for survivors. Pacano also claims to have also recognized appellants Leon Lumilan and Antonio
Garcia who joined Orbiso inside the house. They were purportedly after a certain Ben Estrada who was the
barangay captain of Gayong-Gayong Sur, Ilagan, Isabela. 5

Prosecution eyewitness Benito Alonzo corroborated the eyewitness account of Simeon Pacano on the shooting
incident. Benito Alonzo recalled that they were drinking at the house of Policarpio Palomo when successive
gunshots were fired by three persons outside the fence of Palomo's house. He identified appellants Leon
Lumilan and Antonio Garcia as two of the alleged assailants. 6

Both Lumilan and Garcia interposed the defense of alibi. Appellant Garcia testified that he was in the company
of Atty. Benjamin Olalia who stood as sponsor in the wedding of the daughter of a certain Hilario Lagua in
Gayong-Gayong Sur, Ilagan, Isabela. They had late lunch at the house of Hilario Lagua and stayed there until
4:00 o'clock in the afternoon. Thereafter, Garcia and Atty. Olalia returned to the latter's house in Osmenia,
Ilagan, Isabela, together with Martin Lagua, Juan Lorenzo, Felix Aguda, Romeo Callo, Rodrigo Junio, a driver,
and two other individuals. They spent the rest of the day at the house of Atty. Olalia who corroborated Garcia's
testimony. On the other hand, appellant Lumilan testified that he was in Alibagu, Ilagan, Isabela the whole day of
7 

October 12, 1987. 8

After an assessment of the evidence, the trial court declared that no proof beyond reasonable doubt was
adduced by the prosecution to justify the conviction of appellants for Qualified Illegal Possession of Firearms
Used in Murder. However, the trial court convicted the appellants for Murder, Frustrated Murder and Attempted
Murder as it ruled that:

. . . The eyewitness account of Simeon Pacano which was corroborated by Benito Alonzo can not be
discounted. Both testified in a straitforward and candid manner, leaving no doubt as to their veracity.

xxx     xxx     xxx

From the evidence adduced, it is clear that the accused moved in concert, driven by a pre-conceived
design that made each of them is (sic) liable in equal degree with the others for each of the three killings
and for wounding five others. . . .

As heretofore alluded to, the killing and wounding of the victims constituted the crime of Murder,
Frustrated Murder and Attempted Murder, qualified by treachery. . . .

In view of the eyewitness account of Pacano and Alonzo, the defense of alibi interposed by the (sic) both
accused can not hold water.

What crime or crimes were committed?

1. There is no sufficient evidence to prove Illegal Possession of Firearms.
2. Relative to the death of Meliton Asuncion, Modesto Roque and Eliong dela Cruz, the crime
committed was Murder.
85
 3. Relative to the injuries sustained by Jerry Palomo and Simeon Pacano, the crime committed
was Frustrated Murder while as to Romeo Pacho, Nolasco Estrada, and Mario Palomo, the crime
committed is Attempted Murder.
4. As to the charge of Illegal Possession of Firearms, no evidence has been adduced to p[rove
the charge. The guns were never presented.
xxx     xxx     xxx 9

Accordingly, appellants were meted out the following penalties:

WHEREOF, in view of all the foregoing, the Court finds the accused Antonio Garcia and Leon Lumilan
guilty beyond reasonable doubt of the crime of 1) MURDER as defined and penalized under Article 248
of the Revised Penal Code in conjunction with Article 6 of the Revised Penal Code and in view of the
absence of any mitigating or aggravating circumstances attending the commission of the crime, hereby
sentences Antonio Garcia and Leon Lumilan to suffer the penalty of RECLUSION PERPETUA on three
counts each for the killing of Meliton Asuncion, Modesto Roque and Eliong dela Cruz; 2) FRUSTRATED
MURDER and are sentenced to a prison term of 8 years and 20 days as minimum to 14 years, 10
months, and 21 days as maximum on two counts each for the wounding of Jerry Palomo and Simeon
Pacano and; 3) ATTEMPTED MURDER and are sentenced to a prison term of 5 years as minimum to 8
years and 21 days as maximum on three counts each for the wounding of Nolasco Estrada, Mario
Palomo and Romeo Pacho, and to indemnify the heirs of the deceased MELITON ASUNCION damages
in the amount of P30,000.00, moral damages of P10,000.00 each, actual damages of P4,150.00 and lost
earning of P27,000.00 for one year as farmer; the deceased MODESTO ROQUE damages of
P30,000.00, moral damages of P10,000.000 each actual damages of P8,00.00 and lost earning of
P10,000.00 for one year as farmer; and the deceased ELIONG DELA CRUZ, damages of P30,000.00
and moral damages of P10,000.00 each; for the wounding of SIMEON PACANO and JERRY PALOMO,
moral damages of P10,000.00 each and actual damages of P11,550.00 for JERRY PALOMO; and for an
attempt on the life of NOLASCO ESTRADA and MARIO PALOMO, an actual damages of P100.00 for
NOLASCO ESTRADA and actual damages of P200.00 and lost earning of P10,500.00 for one year as
farmer for MARIO PALOMO, with costs.

SO ORDERED 10

Appellants file a motion for reconsideration which was, however, denied by the trial court in its Resolution dated
11 

October 24, 1991. Hence, the instant appeal.

Appellants Leon Lumilan and Antonio Garcia raise the following errors:
I
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN FINDING THAT THE GUILT OF
APPELLANTS WAS PROVEN BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN NOT GIVING CREDENCE TO THE
EVIDENCE OF APPELLANTS.

The important first question We must answer is whether or not appellants may be properly convicted of murder,
frustrated murder and attempted murder under an Information that charges them with qualified illegal possession
of firearms used in murder in violation of Section 1 of presidential Decree (P.D.) No. 1866, as amended .
12 

At the time the trial court promulgated its judgment of conviction in September 1990, it had already been six (6)
months since We held in People v. Tac-an that the unlawful possession of an unlicensed firearm or ammunition,
13 

whether or not homicide or murder resulted from its use, on one hand, and murder or homicide, on the other, are
offenses different and separate from and independent of, each other . While the former is punished under a
14 

special law, the latter is penalized under the Revised Penal Code. Consequently, the prosecution for one will not
bar prosecution for the other, and double jeopardy will not lie .
15 

Tac-an was reiterated in People v. Tiozon , People v. Caling , People v. Jumamoy , People v.
16  17  18 

Deunida , People v. De Gracia , People v. Tiongco , People v. Fernandez , People v. Somooc and People v.
19  20  21  22  23 

Quijada  .
24 

86
Under Sec. 7 of Rule 117 of the Revised Rules of Court, double jeopardy lies when after the accused has
pleaded to the first offense charged in a valid complaint or information and he is subsequently convicted or
acquitted or the case against him is dismissed or otherwise terminated without his express consent by a court of
competent jurisdiction, he is prosecuted for a second offense or any attempt to commit the same or frustration
thereof or any other offense, which necessarily includes or is necessarily included in the offense charged in the
former complaint or information.

It cannot be said that murder or homicide necessarily includes or is necessarily included in qualified illegal
possession of firearms used in murder or homicide. To state otherwise is to contradict Tac-an and its progeny of
cases where We categorically ruled out the application of double jeopardy in the simultaneous prosecution for
murder or homicide and qualified illegal possession of firearms used in murder or homicide against same
accused involving the same fatal act. 1âwphi1.nêt

Sec. 4. Rule 120 of the Revised Rules of Court provides that an accused may not be convicted of an offense
other than that with which he is charged in the Information, unless such other offense was both established by
evidence and is included in the offense charged in the Information. Since murder or homicide neither includes or
is necessarily included in qualified illegal possession of firearms used in murder or homicide, the trial court may
not validly convict an accused for the former crime under an Information charging the latter offense. Conversely,
an accused charged in the Information with homicide or murder may not be convicted of qualified illegal
possession of firearms used in murder or homicide, for the latter is not included in the former. As We have
amplified in Quijada:

The unequivocal intent of the second paragraph of Section 1 of P.D. 1866 is to respect and to preserve
homicide or murder as a distinct offense penalized under the Revised Penal Code and to increase the
penalty for illegal possession of firearm where such firearm is used in killing a person. Its clear language
yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the Revised
Penal Code, in such a way that if an unlicensed firearm is used in the commission of homicide or
murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal
possession of firearm and would not anymore be separately punished. Indeed, the words of the subject
provision 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, is obliterated as such and reduced as a mere
aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is used in
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 maximum period to reclusion perpetua — to death,
seemingly because of the accused's manifest arrogant defiance and contempt of law in using an
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.

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 unlicensed firearm, i.e., to consider such use merely as a
qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker
because the term "penalty" in the subject provision is obviously meant to be the penalty for illegal
possession of firearm and not the penalty for homicide or murder. . . .

xxx     xxx     xxx

Evidently, the majority did not . . . create two offenses by dividing a single offense into two. Neither did it
resort to the "unprecedented and invalid act of treating the 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 majority has always maintained that the killing of a person with the use of an illegally possessed
firearm gives rise to two separate offenses of (a) homicide or murder under the Revised Penal Code,
and (b) illegal possession of firearm in its aggravated form. 25

Since Quijada, however, many changes have been introduced to Sec. 1 of P.D. No. 1866 by Republic Act (R.A.)
No. 8294 . Said section now reads:
26 

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or

Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty
of prision correccional in its maximum period and a fine of not less than Fifteen Thousand pesos
(P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire,
87
 dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be
used in the manufacture of any firearm or ammunition:, Provided, that no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall
be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no
other crime was committed by the person arrested.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime of
rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an
element of the crime of rebellion, or insurrection, sedition or attempted coup d'etat.

The same penalty shall be imposed upon the owner, president, manager, director or other responsible
officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow
any of the firearms owned by such firm, company, corporation or entity to be used by any person or
persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow
any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of
their residence in the course of their employment.

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor. 27

Without doubt, the foregoing amendments blur the distinctions between murder and homicide, on one hand, and
qualified illegal possession of firearms used in murder or homicide, which we have enunciated beginning in Tac-
an and culminating in Quijada.

In People v. Molina , We already declared that the intent of Congress to treat as a single offense the illegal
28 

possession of firearms and the commission of murder or homicide with the use of an unlicensed firearm, is clear
from the unequivocal wording of the third paragraph of Sec. 1 of P.D. No. 1866, as amended by R.A. No. 8294,
which reads:

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

Where an accused uses an unlicensed firearm in committing homicide or murder, he may no longer be
charged with what used to be the two separate offenses of homicide or murder under the Revised Penal
Code and qualified illegal possession of firearms used in homicide or murder under P.D. No. 1866. As
amended by R.A. No. 8294, P.D. No. 1866 now mandates that the accused will be prosecuted only for
the crime of homicide or murder with the fact of illegal possession of firearms being relegated to a mere
special aggravating circumstance. To obviate any doubt, R.A. No. 8294 expressly restricts the filing of an
information for illegal possession of firearms to cases where no other crime is committed. Thus, illegal
possession of firearms may now be said to have taken a dual personality: in its simple form, it is an
offense in itself, but when any killing attends it, illegal possession of firearms is reduced to a mere
aggravating circumstance that must be alleged in the information in order to be appreciated in the
determination of the criminal liability of the accused.

Now We observe that the Information charging appellants with Qualified Illegal Possession of Firearms Used in
Murder, violates Sec. 1 of P.D. No. 1866, as amended by R.A. No. 8294, which obliterated the now obsolete
concept of qualified illegal possession of firearms or illegal possession of firearms in its aggravated form, i.e.,
where the penalty for illegal possession is increased to reclusion perpetua or death by the attendance of
homicide or murder. In fact, qualified illegal possession of firearms, which used to be a distinct offense, no
longer exists in our statute books.

88
We come to the conclusion, thus, that whether considered in the light of our ruling in Tac-an and its progeny of
cases or in the context of the amendments introduced by R.A. No. 8294 to P.D. No. 1866, the Information
charging appellants with Qualified Illegal Possession of Firearms Used in Murder, is defective, and their
conviction for Murder, Frustrated Murder and Attempted Murder, is irregular.

The decisive question, however, is: do such defect in the Information and the irregular conviction of appellants,
invalidate the criminal proceedings had in the trial court?

No. Appellants waived their right to quash the Information, and they effectively defended themselves against the
charges for murder, frustrated murder and attempted murder.

The information in the instant case reads:

The undersigned Provincial Fiscal accuses FRED ORBISO, LEON LUMILAN and ANTONIO GARCIA of
the crime of QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN MURDER, in violation of
Presidential Decree No. 1866, committed as follows:

That on or about the 12th day of October 1987, in the municipality of Ilagan, Province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being
authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully,
unlawfully and feloniously have in their possession and under their control and custody, firearms
without first having obtained the necessary permit and/or license to possess the same, and that
on the occasion of such possession, the herein accused with treachery did then and there
wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving
them a chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque,
and Eliong de la Cruz inflicting upon them gunshot wounds which directly caused their deaths;
and further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho,
Nolasco Estrada, Mario Palomo and Simeon Pacano which injuries would ordinarily cause the
death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon
Pacano, thus performing all the acts of execution which should have produced the crime of
murder with respect to the last named victims as a consequence, but nevertheless, did not
produce it by reason of causes independent of their will, that is, by the timely and able medical
assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo
and Simeon Pacano which prevented their deaths.

CONTRARY TO LAW.

While the Information specifically states that appellants are being accused of the crime of Qualified Illegal
Possession of Firearms Used in Murder in violation of P.D. No. 1866, its text is so worded that it describes at
least three (3) crimes:

Illegal Possession of Firearms —

the herein accused, not being authorized or allowed by the law to keep, possess and carry
firearms, did then and there wilfully, unlawfully and feloniously have in their possession and
under their control and custody, firearms without first having obtained the necessary permit
and/or license to possess the same, and

Murder —

that on the occasion of such possession, the herein accused with treachery did then and there
wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving
them a chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque,
and Eliong de la Cruz inflicting upon them gunshot wounds which directly caused their deaths;
and

Frustrated/Attempted Murder: —

89
 further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho,
Nolasco Estrada, Mario Palomo and Simeon Pacano which injuries would ordinarily cause the
death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon
Pacano, thus performing all the acts of execution which should have produced the crime of
murder with respect to the last named victims as a consequence, but nevertheless, did not
produce it by reason of causes independent of their will, that is, by the timely and able medical
assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo
and Simeon Pacano which prevented their deaths.

The Information is undeniably duplicitous. Sec. 13, Rule 110 of the Revised Rules of Court provides that
a complaint or information must charge but one offense, except only in cases where the law prescribes a
single punishment for various offenses. Duplicity or multiplicity of, charges is a ground for a motion to
quash under Sec. 2 (e), Rule 117 of the Revised Rules of Court. The accused, however, may choose not
to file a motion to quash and be convicted of as many distinct charges as are alleged in the information
and proved during the trial. In the same vein, failure to interpose any objection to the defect in the
29 

information constitutes waiver. 30

In the instant case, appellant did not file any motion to quash the Information. More significantly, the bulk of the
evidence that they presented during the trial was intended to disprove their complicity in the murder, frustrated
murder and attempted murder of the victims. Appellants were undeniably defending themselves, not so much
with the charge of qualified illegal possession in mind, as it was common knowledge even in the beginning of the
trial that no weapon was retrieved from the crime scene and it was evident that the prosecution was never going
to present any weapon in evidence against them, but with the full awareness that they were as well and more
vigorously being prosecuted for murder, frustrated murder and attempted murder.

As such, appellants cannot pretend that the Information did not fully apprise them of the charges against them
as to cause them surprise in the event of conviction. The appellation of the crime charged as determined by the
provincial fiscal may not exactly correspond to the actual crimes constituted by the criminal acts described in the
Information to have been committed by the accused, but what controls in the description of the said criminal acts
and not the technical name of the crime supplied by the provincial fiscal . Since appellants defended themselves
31 

not only against the offense of Qualified Illegal Possession of Firearms Used in Murder as specified in the
Information, but also, and more seriously against the crimes of Murder, Frustrated Murder and Attempted Murder
as described in the body of the Information, it cannot be said that their conviction for the latter crimes is infirm
and invalid.

This now leads us to the main business of every criminal appeal: the determination of the liability of appellants
for the crimes they have been convicted of.

The appeal is meritorious. Appellants must be acquitted on the ground of reasonable doubt.

The trial court found appellants guilty of three (3) counts of murder, two (2) counts of frustrated murder, and
three (3) counts of attempted murder on the strength of the direct testimonies of prosecution eyewitnesses
Simeon Pacano and Benito Alonzo.

Simeon Pacano testified, thus:

Q And while you and the persons you mentioned were drinking, do you recall if there was anything
unusual which happened?
A There was, sir. That was the time when I heard a gun report.
Q And from what direction did the gun report emanate?
A Outside the fence, sir. On the road outside the fence or road leading to Salindingan.
xxx     xxx     xxx
Q And do know what happened to you and your companions when as you stated you heard firings?
A I know, sir, because my companions died during that incident.
Q Who of your companions died?
A Meliton Asuncion, Modesto Roque, and Eliong dela Cruz. Three of them, sir.
Q About you, did you suffer any injuries or not?
A Yes, sir.
Q What part of your body was hit?
A My left leg, sir. (Witness pointed to his left leg which was already amputated).
90
 Q Besides you and three others whose names you mentioned as having died, do you know if any of your
other companions suffered any injury or inmjuries?
A Romeo Pacho was injured, sir. Francisco Macugay and the two brothers of Policarpio Palomo, Mario
Palomo and Oly Estrada.
xxx     xxx     xxx
Q And while you were in that position as you have stated face downwrd on the ground, do you know
what later happened?
A When I was in that position, sir, face downward, I heard no gun reports and that was the time that one
of the gunmen went to the place where we were and that was the time that I was able to recognize him.
Q What did that gunman whom you recognized do, if he did anything?
A He turned us around, sir, to see if we were already dead
Q And can you tell the Court who is the person you recognized?
A Fred Orbiso.
Q Will you look into the persons inside the courtroom who are seated there in the benches and tell the
Court if that Fred Orbiso is here in Court or not?
A He is not in Court.
Q And after you recognized Fred Orbiso as you stated, what else happened?
A What I heard, sir, that other companion of the gunman said that they are looking for Boy Estrada.
xxx     xxx     xxx
Q And you said that persons entered including the person you earlier recognized. Did you come to know
how many persons entered?
A I remember, sir.
Q How many of them?
A Three (3), sir.
Q Now, you recognized one of them as Fred Orbiso. About the other persons, were you able to
recognize them or not?
A I also recognized them, sir.
Q Can you tell the Court the name or the persons whom you recognized other than Fred Orbiso?
A Manong Tony Garcia. (Witness pointed to a man seated at the third row of the benches of the Court,
and when asked, he gave his name as Antonio Garcia).
Q About the third person?
A The man seated beside Antonio Garcia, sir.
Q What is his name?
A That I know is Leon Lumilan. (Witness pointed to a man seated beside Antonio Garcia, and when
asked, he gave his name as Leon Lumilan. 32

And Benito Alonzo corroborated him in this wise:

Q What was that unusual incident that happened?

A While we were drinking inside the houdse, we heard gun reports firing at the door of the house of
Poling.
xxx     xxx     xxx
Q You stated that while you were inside the house of Poling Policarpio you heard gun reports. Are you in
a position to tell the Court from what direction did these gun reports come or emanate?
A It is possible, sir.
Q Where did the firing emanate or originate?
A Coming from the gate of the fence of Mang Poling and the other firings took place on the fence
because there were three(3) persons who fired.
Q How did you come to know that there were three (3) persons who fired?
A I can see the flame of the firings coming from the firearms going toward us.
Q Are you in a position to tell the Court if you were able to identify these three (3) persons?
A Yes, sir.
Q Please name the persons?
A Leon Lumilan, Tony Garcia, and Fred Orbiso, sir.
Q You have mentioned as one of the persons you saw that evening as Leon Lumilan. Please look
around the courtroom and tell the Court if that person is here now in the courtroom?
A Yes, sir.
Q Please stand and point to the Court the persons of Leon Lumilan and that of Antonio Garcia.
A That is Leon Lumilan, sir. (The witness pointing to a man in the courtroom and when asked, he gave
his name as Hermenegildo Lumilan). And that is Tony Garcia. (The witness pointing to another man in
the courtroom and when asked, he gave his name as Antonio Garcia). 33

91
This Court does not ordinarily interfere with the trial court's judgment on the trustworthiness of witnesses.
However, when there appear on record, as in this case, facts or circumstances of real weight which might have
been overlooked or misapprehended. We can not shirk from our duty to apply the law and render justice.
34 

We entertain serious doubt as to whether prosecution eyewitness Simeon Pacano did see the assailants. He
testified that he was about to leave the house of Policarpio Palomo together with Romeo Pacho at around 7:00
o'clock in the evening when successive gunshots emanated from the fence which was more or less six (6)
meters away from the doorway of the house. He was hit in the left leg and fell to the ground on his face as he felt
terrible pain that almost immobilized him. After the firing had ceased and while he was in the said position
pretending to be dead, the alleged assailants entered the premises. He recognized Fred Orbiso when the latter
turned the bodies of the victims to ascertain if they were already dead. He also claimed to have seen appellants
enter the premises and noticed appellant Lumilan holding an armalite rifle.
35  36

A nexus of logically related circumstances, however, render Pacano's testimony as doubtful. First, it was already
7:00 o'clock in the evening when the shooting incident occurred. It was dark outside the house of Policarpio
Palomo where he was shot near the doorway. Inside the house, the only source of light was the illumination
coming from the two improvised kerosene lamps made of bottle and wick. One was placed on the second floor
while the other was placed at the groundfloor inside the house where they were drinking. 37

Pacano admitted that he did not notice the presence of the assailants on the other side of the fence. Likewise,
38 

no evidence was shown that he actually saw the assailants while they were in the act of firing their guns.

Second, the incident occured so fast and he was admittedly very afraid. He pretended to be dead by closing his
eyes and holding his breath, avoiding any sign of life, so to speak, to avoid detection by the assailants when they
entered the premises and inspected the bodies for survivors. 39

Third, after the shooting incident, Pacano was treated in the Isabela Provincial Hospital for six (6) days after
which he was transferred to the National Orthopedic Hospital in Manila. Upon his discharge on December 8,
1987, he returned to Ilagan, Isabela and since then stayed in the house of Bonifacio Uy who was the OIC Mayor
of Ilagan, Isabela. On March 21, 1988, more than five (5) months after the incident, Pacano executed his sworn
statement before the Ilagan, Isabela police authorities implicating appellants and Fred Orbiso. It is true that
40  41 

initial reluctance to volunteer information regarding the crime due to fear of reprisal is common enough that it
has been judicially declared as not affecting a witness' credibility. However, Pacano can not really claim to be
42 

afraid for his life inasmuch as he was under the custody of then OIC Mayor Bonifacio Uy after the shooting
incident. During the political rally of Bonifacio Uy on January 16, 1988 in Centro Ilagan, Isabela, Pacano even
delivered a speech implicating Fred Orbiso, Leon Lumilan, Antonio Garcia, Juan Lorenzo and Martin Lagua, who
were identified with the camp of Uy's opponents as the authors of the shooting incident on October 12, 1987. 43

We also can not subscribe reliability to the testimony of prosecution eyewitness Benito Lorenzo. First, he claims
to have recognized appellants and Fred Orbiso with the help of the light of the flames coming out of their
respective firearms when they were firing them. This is patently unbelievable, considering that he was drinking
44 

liquor inside the house of Policarpio Palomo when the shooting occurred. It was already 7:00 o'clock in the
evening and the only light there came from inside the house, not outside.

Second, Benito Alonzo went to the police authorities on October 13, 1987 to give his sworn statement regarding
the shooting incident the day before. In said sworn statement , Alonzo categorically admitted that he did not see
45 

the assailants. However, he suspected Atty. Benjamin Olalia, whom he allegedly had a misunderstanding over
the latter's cow, and his men as perpetrators of the crime considering that they were the only persons who went
to their barangay in Gayong-Gayong Sur on October 12, 1987 armed with long firearms. He stated that he saw
Atty. Olalia together with other persons including appellants Lumilan and Garcia at the house of Hilario Lagua at
about 4:00 o'clock of the same date attending the wedding of Lagua's son. Upon seeing appellant Lumilan and
two others whom he did not know carrying armalite rifles, he left the place and proceeded to the house of
Policarpio Palomo. This isolated circumstance is certainly not sufficient to hold appellants liable for the shooting
incident.

In the light of all the foregoing; this Court is constrained to acquit the appellants on the ground of reasonable
doubt. The constitutional presumption of innocence in favor of the appellants was not over-turned by the
evidence adduced by the prosecution. 1âwphi1.nêt

92
WHEREFORE, the Decision of Branch 16 of the Regional Trial Court of Ilagan, Isabela in Criminal Case No. 995
is REVERSED and SET ASIDE. The accused-appellants, Leon Lumilan and Antonio Garcia, are hereby
ACQUITTED on the ground that their alleged guilt was not proven beyond reasonable doubt. Costs de officio.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

G.R. No. 130800 June 29, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GUILLERMO NEPOMUCENO, JR., accused-appellant.

DAVIDE, JR.,C.J.:

Accused-appellant Guillermo Nepomuceno, Jr., (hereafter NEPOMUCENO) was charged before the Regional
Trial Court of Manila with parricide in Criminal Case No. 94-136491 and with qualified illegal possession of
firearm in Criminal Case No. 94-139839. The crime of parricide was alleged to have been committed with the
use of an unlicensed firearm. The two cases were consolidated and assigned to Branch 46 of the said court.
NEPOMUCENO entered a plea of not guilty in each case.

Despite the consolidation, Criminal Case No. 94-136491was tried first. On 20 November 1996, judgment was
rendered findings NEPOMUCENO guilty beyond reasonable doubt of the crime of parricide and sentencing him
to suffer a prison term of forty years of reclusion perpetua. NEPOMUCENO appealed the judgment to us in G.R.
No. 127818. In our decision of 11 November 1998, we affirmed the appealed judgment with the modification that
the penalty imposed was changed from "forty years of reclusion perpetua" to reclusion perpetua.

Meanwhile, the trial court proceeded with the trial of Criminal Case No. 139839. The information in that case
reads as follows:

That on or about May 2, 1994, in the City of Manila, Philippines, the said accused, being then a
private individual not being authorized by law to possess firearm and ammunition, did then and
there willfully and unlawfully keep, carry in his possession and under his custody and control one
(1) cal. .38 revolver and one (1) piece of ammunition, without first obtaining the necessary permit
or license to possess the same from the proper authorities, and which firearm, the said accused
used in committing the crime of parricide against his legal wife, Grace B. Nepomuceno, to the
damage and prejudice of the latter's heirs and/or public interest.

93
On 24 September 1997 judgment   was promulgated holding that all the elements of the crime of aggravated
1

illegal possession of firearm were present, to wit: (1) there must be a firearm; (2) the gun was possessed by the
accused; (3) the accused had no license from the government; and (4) homicide or murder was committed by
the accused with the use of said firearm. It then applied our ruling in People v. Quijada   that the killing of a
2

person with the use of an illegally possessed firearm gives rise to two separate offenses, namely, (1) homicide
or murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated form.
Accordingly, the trial court convicted NEPOMUCENO of the violation of Section 1, paragraph 2, P.D. No. 1866,
as amended by R.A. No. 8294, and sentenced him to suffer the penalty of death by lethal injection. The decretal
protion of the decision reads:

WHEREFORE, the court finds the accused guilty beyond reasonable doubt of violating
Presidential Decree No. 1866, Section 1, Paragraph 2, as amended by Republic Act No. 8294,
and hereby sentences him to suffer the supreme penalty of death by lethal injection.

In the commission of the crime, the accused showed remorse by immediately bringing his wife to
a hospital and voluntarily surrendering to the authorities. Article 10 of the Revised Penal Code,
however, prohibits the application of the rules on the appreciation of mitigating and aggravating
circumstances in the imposition of the penalty when the accused is charged [with] violating a
special law.

However, the court recommends to the Chief Executive the grant of executive clemency to the
accused by reducing the penalty to prision correccional in its maximum period and a fine of
P15,000.00, the penalty imposed for illegal possession of firearms with only .380 firepower in its
non-aggravated form. IT IS SO ORDERED.

Pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of R.A. No. 7659,   the judgment
3

and the record of the case were forwarded to this Court for automatic review.

Two Appellant's Brief were separately filed for NEPOMUCENO by counsel de oficio Domingo
Palarca   and counsel de oficio Katrina Legarda Santos.   In the first, NEPOMUCENO asks for the reversal of the
4 5

challenged decision because the trial court erred in convicting him on the basis of "evidence by inference" and in
ruling that circumstantial evidence showed that the accused had animus possidendi of the unrecovered firearm.
In the second Appellant's Brief, he asserts that this Court must allow the benefit of R.A. No. 8249 to take
retroactive effect as to acquit him of the crime of qualified illegal possession of firearm. In the alternative, he
asks for acquital because the trial court erred in finding that the prosecution proved an essential requisite of the
offense, i.e., the accused possessed the firearm without the requisite of license or permit.

In its Manifestation in Lieu of Appellees' Brief, the Office of the Solicitor General asks for the reversal of the
challenged decision and for the acquital of NEPOMUCENO on these grounds: (1) the prosecution failed to prove
that NEPOMUCENO had no authority or license to possess the firearm; and (2) pursuant to People v.
Bergante,   which gave retroactive effect to R.A.. No. 8294,   if homicide or murder is committed with the use of
6 7

an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance
and shall no longer be separately punished.

The information in Criminal Case No. 94-139839 alleged that the crime of illegal possession of firearm was
committed on 2 May 1994, i.e., before the approval of R.A.. No. 8294 on 6 June 1997. Section 1 thereof radically
amended Section 1 of P.D. No. 1866 by, among other things, revising the second paragraph of Section 1 of P.D.
No. 1866 from the following:

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed.
to:
If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

Under the old second paragraph of Section 1 of P.D. No. 1866, if the killing of a person is committed, with the
use of the unlicensed firearm, the accused could be prosecuted for, and convicted of, (1) illegal possession of
firearm in an aggravated form and (2) either murder or homicide. In People v. Quijada,   this Court declared:
8

94
 The unequivocal intent of the second paragraph of Section 1 of P.D. 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 illegal possession of firearm where such a firearm is used in killing a
person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto,
Articles 248 and 249 of the Revised Penal Code, in such a way that if an unlicensed firearm is
used in the commission of homicide or murder, either of these crimes, as the case may be, would
only serve to aggravate the offense of illegal possession of firearm and would not anymore be
separately punished. Indeed, the words of the subject provision 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, is obliterated as such and reduced as a mere aggravating circumstance in
illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only
purpose of the provision is to increase the penalty prescribed in the first paragraph of Section 1
— reclusion perpetua in its maximum period to reclusion perpetua to death, seemingly because
the accused's manifest arrogant defiance and contempt of the law in using an 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.

But, pursuant to the amendment, the use of an unlicensed firearm in the commission of murder or
homicide is treated as an aggravating circumstance. Therefore, the illegal possession or use of the
unlicensed firearm is no longer separately punished. This Court emphatically said so in People v.
Bergante,   thus:
9

The violation of P.D. No. 1866 should have been punished separately conformably with our ruling
in People v. Quijada. Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was
recently amended by Republic Act. No. 8294, otherwise known as "An Act Amending the
Provisions of Presidential Decree No. 1866, as Amended. The third paragraph of Section 1 of
said Act provides that "if homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating circumstance." In short,
only one offense should be punished, viz., either homicide or murder, and the use of the
unlicensed firearm should only be considered as an aggravating circumstance. Being favorable
to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the
Revised Penal Code, he not being a habitual criminal.

Being clearly favorable to NEPOMUCENO, who is not a habitual criminal, the amendment to the second
paragraph of Section 1 of P.D. No. 1866 by R.A.. No. 8294 should be given retroactive effect in this case.
Considering that NEPOMUCENO was in fact convicted in the case for parrictide, and that his conviction was
affirmed in our decision of 11 November 1998 in G.R. No. 127818, with the slight modification that the penalty
should be reclusion perpetua and not "forty years of reclusion perpetua," it follows that NEPOMUCENO should
be ACQUITTED in the case at bar.

One final word. Assuming that NEPOMUCENO could be separately punished for illegal possession or use of an
unlicensed firearm, the imposition of the death penalty on him has no legal basis. As was emphasized in
Quijada, under the second paragraph of Section 1 of P.D. No. 1866 the commission of murder or homicide with
the use of an unlicensed firearm served to aggravate the offense of illegal possession of firearm and
accdordingly, increased the penalty prescribed in the first paragraph of the Section, i.e., from "reclusion
temporal in its maximum period to reclusion perpetua" to thes single indivisible penalty of death.

It must be underscored that although R.A. No. 7659 had already taken effect at the time the violation of P.D. No.
1866 was allegedly committed by NEPOMUCENO, there is nothing in R.A. No. 7659 which specifically
reimposed the deafh penalty in P.D. No. 1866. Without such reimposition, the death penalty imposed in Section
1 of P.D. No. 1866 for aggravated illegal possession of firearm shall remain suspended pursuant to Section 19
(1) of Article III of the Constitution. Conformably therewith, what the trial court could impose was reclusion
perpetua.

WHEREFORE, the appealed decision of 24 September 1997 in:Criminal Case No. 94-139839 of the Regional
Trial Court of Manila, Branch 46, is REVERSED. Accused-appellant GUILLERMO NEPOMUCENO, JR., is
hereby ACQUITTED; but he should remain in detention to serve his sentence in G.R. No. 127818. 1âwphi1.nêt

Costs de oficio.

95
SO ORDERED.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes and Santiago, JJ., concur.

Romero, J., abroad on official business.

G.R. Nos. 84332-33 May 8, 1996

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
REYNALDO EVANGELISTA, accused-appellant.

MENDOZA, J.:p

On January 1, 1985, when Priscilla Arceo1 and her children arrived home at 15 Libis Gochico, Caloocan City at
10:30 p.m. from the Luneta, her husband Efren was having an altercation with accused-appellant Reynaldo
(Regie/Reggie) Evangelista, the latter's brother-in-law Armando Perez, and a certain Tito Santos. In the
investigation conducted by then Pfc. Paulino Batarina, it was shown that a certain Hipolito was also with the
accused-appellant at the time of the incident. 2 Priscilla asked Armando Perez what the matter was, to which the
latter replied that she had nothing to worry about but just to tell her husband to repair the damage he had caused
to a house. The house referred to was the house of accused-appellant's mother, who was then away, in the
province.3 Accused-appellant was angry at Efren Arceo because the latter had destroyed a part of the house of
accused-appellant's mother. The records do not show for what reason or by what authority Efren did this.
Neither was accused-appellant aware of any reason. 4

As Efren was destroying the house with a bolo, the accused-appellant and his brother-in-law tried to stop him by
throwing stones at him and after he had left accused-appellant and his brother-in-law followed him to his house
and hurled stones at his house.  It was at that point that Priscilla arrived.
5

The next day, two barangay officials saw Priscilla and asked her and her husband to go to the barangay
headquarters for a meeting with the other party concerning the incident. On their way to the barangay
headquarters, Priscilla and her husband met accused-appellant who upon seeing Efren started cursing him.
Accused-appellant told Efren to fix the house he had destroyed or else something would happen to him. 6

Accused-appellant did not attend the barangay conference. Only Armando Perez and his wife did. Priscilla and
Efren therefore left and went instead to visit relatives in Tondo. They returned home at around 9:30 p.m. and
96
retired to bed shortly thereafter. At around 12:00 p.m., Priscilla was awakened by a loud explosion which turned
out to be a gunshot. She looked out of the window to find what it was about and saw a man running away.
Turning to her husband and holding her face against his cheeks, Priscilla felt something wet with her fingers.
She saw her husband covered with blood, his skull open and his brains spilling out.  Efren Arceo died before
7

reaching the hospital.

An investigation pointed to accused-appellant Reynaldo Evangelista as the assailant. An information for the
murder of Efren Arceo (Criminal Case No. C-23861) and another one for violation of P.D. No. 1866 Illegal
Possession of Firearms (Criminal Case No. C-23862) were filed against him with the Regional Trial Court of
Caloocan City. Accused-appellant pleaded not guilty to both charges, whereupon he was tried.

The prosecution presented six witnesses, namely, Priscilla Arceo; Dr. Bienvenido Muñoz, the medico-legal
officer who conducted the autopsy; Honorato Flores, NBI Supervising Ballistician; Pfc. Paulino Batarina,
investigating officer; Pat. Carlos Ladia; and Luis Sakdalan, a cigarette vendor.

Pfc. Batarina testified that .the house of Efren and Priscilla was a bungalow and that the window of the bedroom
was just three (3) feet above the ground. The bed of the victim was close to the window and was placed
perpendicular to it. Priscilla and her husband Efren slept with their heads near the window. The window had
wooden grills four (4) inches apart and it was easy to insert a hand between the grills. Anyone standing outside
the window could see who was sleeping on the bed. 8

Dr. Bienvenido Muñoz testified that Efren died of a gunshot wound.  He recovered a slug inside the victim's
9

cranial cavity and later submitted it to the NBI for examination.10

The ballistics expert, Honorato Flores, testified that the bullet was fired from the firearm (a homemade gun
called paltik) recovered from the accused-appellant. His report contained the following:

FINDINGS-CONCLUSION:

Comparative examination made between evidence bullet marked "EA" and the test bullets fired
from the submitted Paltik Pistol marked "PTB" revealed that they possess similar individual
characteristic markings; said evidence bullet was fired through the barrel of this particular
firearm.

The transcript of stenographic notes of the testimonies of Pat. Ladia and Luis Sakdalan are not in the records of
this case. An order for the retaking of their testimonies was issued by this Court, however, Pat. Ladia and Luis
Sakdalan could no longer be located. But the records contain Pat. Ladia's affidavit in which he said that
accused-appellant had confessed to the commission of the crime. Ladia also gave the circumstances
surrounding such admission.  In addition, the trial court's decision contains a summary of the testimonies of Pat.
11

Ladia and Luis Sakdalan, to wit: 12

On January 7, 1985 police investigator Carlos Ladia, Jr. apprehended the accused Reynaldo
Evangelista. At first, he denied participation in the killing of the deceased. But later on he
confided to Ladia that his conscience bothered him because the victim happened to be his friend.
Ladia then asked him where the gun he used in the killing was and the accused said he had
entrusted it to a friend at Marcela Street. So accompanied by another policeman, Renato
Guevarra, Ladia and the accused proceeded to Marcela Street where they looked for a certain
"Wiwit" or Luis Sakdalan, a cigarette vendor. The accused asked Sakdalan to get the gun from a
friend whose name was not disclosed. Sakdalan hesitated to do the errand at first but when
assured that he would not be involved in the case he consented. Sakdalan left and about twenty
minutes later came back with a firearm wrapped in a plastic. The gun turned out to be
a paltik armalite-type pistol, caliber. 223. (Exh. "C").

Priscilla Arceo pointed to accused-appellant Reynaldo Evangelista as the man she saw running away after the
explosion. She stated that even if she saw the assailant with only his back turned on her, she was certain that it
was accused-appellant because she had known him for a long time, accused-appellant having been their former
neighbor. Her testimony on this point is as follows:
13

Q...

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 You relayed that your husband died at around twelve midnight how did you find
out your husband is dead, how did you come to know that your husband was
dead?
A I heard a loud explosion coming from the outside through our window and I saw
a person, a man, about to go away, sir.
Q Did you come to know who that man was?
A I only noticed his body contour, sir.
Q From what you observed it?
A Yes, sir.
Q Who?
A Redgie, sir.
Q How far were you from him when you noticed him?
A The distance from our house until the other house, sir. Around four meters, sir.
xxx xxx xxx
Q And when you looked through the window what did you expect to see at that
time?
A Nothing, sir.
Q And from your testimony you saw the contours or appearance of a man?
A Yes, sir.
Q In other words, it is like a silhouette of a person?
A I just saw the whole body of a person, sir.
Q And the silhouette or contour of a person was it frontal or on the back or
dorsal?
A Back parts, sir.
Q And upon further questioning by the prosecutor you conclude the person being
have the silhouette is the one who shot your husband?
A Yes, sir.
FISCAL FARAON:
I object to the words silhouette.
A It was a shape of a person, sir.
Q Frontal or backward when you mentioned it refers to a shape of a person?
A Backwards, sir.
Q Now, you mentioned or you testified that the shape of a person belonged to the
accused Reynaldo Evangelista, why do you say that?
A Because I have known him for a long time already, sir.
Q So what, if you have known him for a longtime, why did you conclude that
silhouette from?
A Because if you know somebody even from behind you can recognize him, sir.

Accused-appellant had an alibi. He claimed that on January 2, 1985, at around 12:00 p.m., he was at a wake,
playing sakla and that he stayed there until 2:00 a.m. of January 3. He said his presence there could be
confirmed by people who played sakla with him.  Accused-appellant was supposed to present a witness,
14

Severino Biasong, to attest to his presence at the wake, but the witness failed to testify. When questioned as to
the identity of the person who died and as to the person who owned the house, accused-appellant said he did
not know who the dead man was and who owned the house, as he went there only to play sakla. 15

The Regional Trial Court of Caloocan City, Branch 130, found the accused guilty of murder and aggravated
illegal possession of firearm under P.D. No. 1866, §1 par. 2. The dispositive portion of its decision, dated April
23, 1986,  reads:
16

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court finds the accused Reynaldo
Evangelista guilty beyond reasonable doubt of the crimes charged and hereby sentences him as
follows:

In Criminal Case No. C-23861, for murder, to suffer the indivisible penalty of reclusion
perpetua and to indemnify the heirs of the deceased Efren Arceo y Marcos in the sum of
FIFTEEN THOUSAND PESOS (P15,000) as compensatory damages and another THIRTY
THOUSAND PESOS (P30,000) as civil indemnity.

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 In Criminal Case No. C-23862, far illegal possession of firearm, to suffer the supreme penalty of
death. Costs against the accused in both cases.

The case came up to this Court on automatic review. Meanwhile the 1987 Constitution took effect, prohibiting
the imposition of the death penalty except in cases involving heinous crimes determined by Congress. 7 As a1

result, the death sentence on the accused-appellant was automatically reduced to reclusion perpetua.  The 18

accused-appellant was asked to inform the Court if he wanted to pursue his appeal and, if so, to file his
appellant's brief. Accused- appellant indicated he did, submitting for this purpose his appeal brief. He assigns as
errors the following:
19

I. THE TRIAL COURT GRAVELY ERRED IN FINDING MUCH WEIGHT AND CREDENCE ON
THE EVIDENCE PRESENTED BY THE PROSECUTION.

II. THE TRIAL COURT GRAVELY ERRED IN FINDING HEREIN ACCUSED-APPELLANT

GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES OF MURDER AND ILLEGAL
POSSESSION OF FIREARM CHARGED IN TWO SEPARATE INFORMATIONS.

I. In G.R. No. 84332, several reasons exist which show beyond reasonable doubt that accused-appellant is guilty
of murder.

First, there was sufficient identification of accused-appellant by the widow, Priscilla Arceo. Priscilla was positive
that accused-appellant was the one who had shot her husband even though he saw only the back part and the
body contour of the assailant, because she had known accused-appellant for a long time and she was familiar
with him.  At the time she saw him, accused-appellant was only four meters away. There was sufficient
20

illumination from a lamppost six meters away from Priscilla's house. Thus, Priscilla testified: 21

Q The distance according to you to the silhouette that you saw depicting the body
shape of a person was about four meters away?
A Yes, sir.
Q That would be same yard to that window?
A Yes, sir.
Q And the time was midnight?
A Yes, sir.
Q During that time was it dark, very dark, light or very bright?
A It was not so dark because there is a light coming from the lamppost, sir.
Q How far is that from the lamppost or silhouette?
A Six meters away, sir.
Q From the lamppost, because of that you will be able to recognize, did you
shout to the person?
A No, sir.
Q And how long did that person stay in that place?
A He just disappeared to that distance, sir.
Q How long did you see him there up to the time he disappeared?
A Just a minute, sir.
Q For one minute there and before he ran away?
A Yes, sir.
Q When you watched that silhouette for one minute what was that silhouette
doing for that one minute?
A He was in the act of running away, sir.
Q Was that silhouette carrying anything?
A I did not notice it anymore, sir.
Q Aside from that silhouette did you notice another silhouette?
A No, sir.
Q So there was only one silhouette that you saw?
A Yes, sir.

Second, accused-appellant had a motive for killing Efren Marcos Arceo. He had an altercation with the deceased
the day before the deceased was shot. He threatened the deceased with something dire if the latter did not do
something to repair the damage which he had caused to the house of accused-appellant's mother.

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Generally speaking, motive is irrelevant, but when the question is the identity of the accused-appellant, motive
becomes very relevant.  When it is coupled with evidence from which it may be reasonably deduced that the
22

accused was the malefactor, it is sufficient to support a conviction.  In this case, there was positive identification
23

of the assailant by the wife of the victim.

Thirdly, the bullet which felled Efren Marcos Arceo was found by the NBI ballistics expert to have been fired from
the homemade gun (paltik) recovered from the person to whom accused-appellant confessed he had given it.
The evidence regarding this circumstance comes from the testimony of Pat. Ladia of the Caloocan Police
Station. According to Ladia, accused-appellant confessed to him on January 7, 1985 that he (accused-appellant)
had shot Efren. Pat. Ladia saw accused-appellant in a store in front of the Caloocan Police Station. He and
Ladia knew each other.

Ladia said he invited accused to sit down and have something and then asked him about the
incident.  According to Pat. Ladia, after some hesitation accused-appellant confessed to the killing. Upon
24

accused-appellant's information, the gun used in the killing was recovered from Luis Sakdalan, a cigarette
vendor. Pat. Ladia said he was able to persuade Sakdalan to give him the gun after assuring him that he would
not be implicated in the crime.

Sakdalan also testified for the prosecution. Although the transcript of his testimony can no longer be reproduced,
it is not denied that his testimony corroborates that of Pat. Ladia. Sakdalan confirmed that the fatal weapon had
been given to him by accused-appellant.

Accused-appellant denies that he confessed to the crime. While he does not deny knowing Sakdalan, he claims
that Pat. Ladia simply took him along to see Sakdalan and that after Pat. Ladia and Sakdalan had talked to each
other, Sakdalan handed the paltik to the policeman. It is improbable, however, that Sakdalan was the culprit. He
had no motive. There is no allegation that he was hired to kill Arceo.

It is argued that in any event the confession of accused-appellant is inadmissible in evidence having been given
by him without the benefit of warning of his constitutional rights to remain silent and to counsel. Accused-
appellant was not, however, under custodial interrogation. He and Ladia met in a store in front of the police
station and it was there he confessed to the killing of Efren Arceo. While it is true that accused-appellant had
been a suspect, the fact is that he was not in custody when he confessed. The right to be given what have come
to be known as the Miranda warnings  applies only when the investigation has ceased to be a general inquiry
25

into an unsolved crime and has begun to focus on the guilt of a suspect and the latter is taken into custody or
otherwise deprived of his freedom in a substantial way.  In this case, it was only after accused-appellant had
26

admitted to Pat. Ladia that he had killed Arceo and the gun used in the killing had been recovered that accused-
appellant was placed under arrest and detained at the police station.

To summarize, the facts established by the prosecution point to the guilt of accused-appellant, namely: (1)
Priscilla saw the assailant whom she identified as accused-appellant, fleeing; (2) the accused-appellant had an
altercation with the victim the day before the shooting and had a motive for killing him; (3) the bullet which killed
the victim was fired from the gun recovered from accused-appellant; (4) accused-appellant confessed to the
killing to Pat. Ladia. His defense of alibi was properly rejected by the trial court. He claimed that at the time of the
shooting he was playing sakla in a place around 300 meters away from the scene of the crime. 7 This defense
2

cannot prevail over Priscilla's positive identification of accused-appellant. Nor was it physically impossible for him
to have been present at the scene of the crime at the time of its commission,  since the place where he
28

supposedly was could easily be negotiated in a matter of minutes, being only 300 meters away from the scene
of the crime. In the context of this case it can truly be said that of all defenses which an accused may, put up,
alibi is the weakest.

II. Accused-appellant questions the trial court's finding of treachery which qualified the killing as murder. But
there is no question that the victim was shot while asleep. It was 12:00 midnight when he was killed. The victim's
wife testified they were already asleep when she was awakened by the loud explosion.   It has been held that
29

there is treachery where the victim was killed while he was asleep. 30

Accused-appellant also cites certain circumstances as mitigating his liability. He claims voluntary surrender. We
do not think he can be credited with the mitigating circumstance of having voluntarily surrendered to the
authorities. In order that this circumstance may be appreciated, it must be shown that the intention of the
accused was to surrender unconditionally to the authorities either because he acknowledged his guilt or because
he wished to save them the trouble and expense in looking for him and capturing him.  In the case at bar
31

100
accused-appellant's purpose in going to the Caloocan Police Station was not to give himself up but, according to
him, to clear himself of involvement in the killing because he was not guilty.

Nor may accused-appellant be credited with the mitigating circumstance of having committed the crime in the
immediate vindication of a grave offense committed against his mother because the victim had demolished the
house of accused-appellant's mother. The killing was not done while the victim was destroying the house of
accused-appellant's mother, which was at around 10:00 in the evening. In fact by 10:30 accused-appellant and
his brother-in-law had already left, after throwing stones at the victim and the latter's house. Art. 13(5) of the
Revised Penal Code requires that the act done be committed "in the immediate vindication" of a grave offense
committed against the accused or the latter's relatives therein enumerated. As the Solicitor General points out, it
was no longer to vindicate the wrong done to him and his family but rather to take revenge that accused-
appellant killed the victim.

Accordingly, we hold that the trial court correctly found accused-appellant guilty of murder and sentenced him
to reclusion perpetua, there being neither aggravating nor mitigating circumstance present. However, the
indemnity fixed by it in the amount of P30,000.00 must be increased to P50,000.00 in accordance with current
rulings on this matter.

III. In G.R. No. 84333, however, we hold that accused-appellant cannot be found guilty of illegal possession of
firearm, much less of illegal possession of firearm in its aggravated form.

The information charged accused-appellant with simple illegal possession of firearm but the trial court found him
guilty of illegal possession of firearm in its aggravated form under P.D. No. 1866, §1, par. 2, after finding that
accused- appellant had used an unlicensed firearm in killing Efren Arceo. This cannot be done.

That an unlicensed firearm was used in the commission of murder or homicide is a qualifying circumstance.
Consequently, it must be specifically alleged in the information, otherwise the accused cannot be sentenced to
death for illegal possession of firearm in its aggravated form without violating his right to be informed of the
nature and cause of the accusation against him. 32

The information for the violation of P.D. No. 1866 is bereft of any allegation that the unlicensed firearm
mentioned in it was used to commit murder. The information simply alleges: 33

The undersigned Assistant City Fiscal accuses REYNALDO EVANGELISTA Y AGRAVANTE @

REGIE, of the crime of VIOLATION OF P.D. No. 1866 (Illegal Possession of Firearm), committed
as follows:

That on or about the 2nd day of JANUARY 1985, in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused without being authorized by law,
did then and there willfully, unlawfully and feloniously have in his possession, custody and control
one (1) piece home made paltik, pistol armalite type without ammunition and also carried outside
of his residence said firearm and without the necessary permit and/or license.

Neither does the information for murder allege that accused-appellant committed the murder with the use of an
unlicensed firearm:34

The undersigned Assistant City Fiscal accuses REYNALDO EVANGELISTA Y AGRAVANTE

REGIE, of the crime of "MURDER," committed as follows:

That on or about the 2nd day of JANUARY 1985, in Caloocan City, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, with
deliberate intent to kill and with treachery and evident premeditation, did then and there willfully,
unlawfully and feloniously shoot one EFREN ARCEO Y MARCOS, thereby inflicting serious
physical injuries upon the latter, which injuries caused his death upon arrival at the Martinez
Memorial Hospital, this city.

Indeed accused-appellant cannot be convicted even of simple illegal possession of firearm because of lack of
evidence that the firearm is unlicensed. The trial court based its decision simply on the fact that the firearm used

101
in this case is a homemade gun known in the dialect as paltik, apparently being of the opinion that
a paltik cannot be licensed. This view was rejected in People v. Ramos: 35

We do not agree with the contention of the Solicitor General that since a paltik is a homemade
gun, is illegally manufactured as recognized in People vs. Fajardo, [17 SCRA 494 (1966)] and
cannot be issued a license or permit, it is no longer necessary to prove that it is unlicensed. This
appears to be, at first blush, a very logical proposition. We cannot, however, yield to it
because Fajardo did not say that paltiks can in no case be issued a license or a permit, and that
proof that a firearm is a paltik dispenses with proof that it is unlicensed.
36

The decision in G.R. No. 84333 must, therefore, be reversed and accused-appellant must be acquitted of the
charge of illegal possession of firearm, whether simple or aggravated.

WHEREFORE, in G.R. No. 84332 the decision of the Regional Trial Court of Caloocan is AFFIRMED with the
MODIFICATION that the indemnity to the heirs of Efren Arceo is increased to Fifty Thousand Pesos
(P50,000.00), while in G.R. No. 84333 its decision is REVERSED and accused-appellant is ACQUITTED of the
charge of illegal possession of firearm under P.D. No. 1866.

SO ORDERED.

Regalado, Romero, Puno and Torres, Jr., JJ., concur.

102