Special Penal Laws (2)

WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT

The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.

as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions, and this we have reiterated in the 1995 case of People v. Veneracion. (People v. Echegaray)

DEATH PENALTY WAS NOT ABOLISHED BUT MERELY SUSPENDED

A reading of Section 19 (1) of Article III will readily show that there is really nothing therein which expressly declares the abolition of the death penalty. The provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and, if already imposed, shall be reduced toreclusion perpetua. The language, while rather awkward, is still plain enough. (People v. Echegaray)

DEFINITION OF HEINOUS CRIMES

. . . the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. (People v. Echegaray)

WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH UNDER RA 7659

Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death:

(1) (2) (3) (4) (5)

Treason (Sec. 2); Qualified piracy (Sec. 3); Parricide (Sec. 5); Murder (Sec. 6); Infanticide (Sec. 7);

(6)

Kidnapping and serious illegal detention if attended by any of the following four circumstances: (a)

the victim was detained for more than three days; (b) it was committed simulating public authority; (c) serious physical injuries were inflicted on the victim or threats to kill him were made; and (d) if the victim is a minor, except when the accused is any of the parents, female or a public officer (Sec. 8); (7) (8) Robbery with homicide, rape or intentional mutilation (Sec. 9); Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building where people

usually gather; (c) a train, ship or airplane for public use; (d) a building or factory in the service of public utilities; (e) a building for the purpose of concealing or destroying evidence Or a crime; (f) an arsenal, fireworks factory, or government museum; and (g) a storehouse or factory of explosive materials located in an inhabited place; or regardless of what is burned, if the arson is perpetrated by two or more persons (Sec. 10); (9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly weapon; (b)

the rape is committed by two or more persons; and (c) the rape is attempted or frustrated and committed with homicide (Sec. 11); (10) (11) (Sec. 13); (12) drugs (id.); (13) (14) (15) (16) (17) (Sec. 14); (18) (19) (20) (21) (22) Manufacture of regulated drugs (id.); Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs (id.); Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15); Possession or use of regulated drugs in specified amounts (Sec. 16); Misappropriation, misapplication or failure to account dangerous drugs confiscated by the arresting officer Maintenance of den, dive or resort for users of prohibited drugs (id.); Manufacture of prohibited drugs (id.); Possession or use of prohibited drugs in certain specified amounts (id.); Cultivation of plants which are sources of prohibited drugs (id.) Importation of regulated drugs Sale, administration, delivery, distribution, and transportation of prohibited Plunder involving at least P50 million (Sec. 12); Importation of prohibited drugs

(Sec. 17); (23) 19); and (24) 20). (People v. Echegaray) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped (Sec. Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec.

WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH PENALTY UNDER RA 7659

On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the following crimes:

(1)

Qualified bribery

If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death. (Sec. 4)

(2)

Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped,

tortured or subjected to dehumanizing acts

The penalty shall be death where the kidnapping or detention was committed for the purpose of ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subject to torture or dehumanizing acts, the maximum penalty [of death] shall be imposed. (Sec.

(3)

Destructive arson resulting in death

If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed. (Sec. 10)

(4)

Rape with the victim becoming insane, rape with homicide and qualified

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

xxx

xxx

xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1.

when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,

guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent or the victim.

2. 3.

when the victim is under the custody of the police or military authorities. when the rape is committed in full view of the husband, parent, any of the children or other relatives within

the third degree of consanguinity. 4. 5. 6. when the victim is a religious or a child below seven (7) years old when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or

any law enforcement agency. 7. (Sec. 11 ) when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.

(5)

Sale, administration, delivery, distribution and transportation of prohibited drugs where the victim is a minor

or the victim dies

Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided shall be imposed. (Sec. 13)

(6) dies

Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or the victim

Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty [of death] shall be imposed in every case where a prohibited drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a prohibited drug be the proximate case of the death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary. (Sec. 13)

(7)

Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs where the

victim is a minor or the victim dies

Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty [of death] herein provided shall be imposed. (Sec. 14)

(8) dies

Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or the victim

Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of death] herein provided shall be imposed in every case where a regulated drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary. (Sec. 15)

(9)

Drug offenses if convicted are government officials, employees or officers including members of police

agencies and armed forces

The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if those found guilty or any of the same offenses are government officials, employees or officers including members of police agencies and the armed forces. (Sec. 19)

(10)

Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if convicted are

government officials, employees or officers Any such above government official, employee or officer who is found guilty of planting any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided. (Sec. 19)

(11)

In all the crimes in RA. No. 7659 in their qualified form

When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances.

The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group.

An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime. (Sec. 23) (People v. Echegaray)

TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER RA 7659

Thus, construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may be imposed when (1) aggravating circumstances attend the commission of the crime as to make operative the provision of the Revised

Penal Code regarding the imposition of the maximum penalty; and (2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of the death, albeit the imposable penalty is reclusion perpetua to death. (People v. Echegaray)

WHY DEATH PENALTY IS IMPOSED ON HEINOUS CRIMES

The death penalty is imposed in heinous crimes because the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry, and because they have so caused irreparable and substantial injury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of government, they must be permanently prevented from doing so. At any rate, this court has no doubts as to the innate heinousness of the crime of rape, as we have held in the case of People v. Cristobal. Echegaray) (People v.

WHY RAPE IS A HEINOUS CRIME

Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act . . . an outrage upon decency and dignity that hurts not only the victim but the society itself. (People v. Echegaray)

WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED

Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is a . . . necessary, if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival. (People v. Echegaray)

RA 6425 AS AMENDED BY RA 7659 RETAINED

WHEN PENALTY IN NEW LAW NOT FAVORABLE

TO ACCUSED IT SHOULD BE

Appellant in this case was convicted and meted the penalty of life imprisonment and fine of twenty thousand pesos under RA 6425 for transporting more or less 6 kilos of marijuana on July 1990. RA 7659, which took effect on December 31/93, amended the provisions of RA 6425, increasing the imposable penalty for the sale or transport of 750 grams or more of marijuana to reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Such penalty is not favorable to the appellant as it carries the accessory penalties provided under the RPC and has a higher amount of fine which in accordance with ART 22 of the same code should not be given retroactive effect. The court, therefore, finds and so holds that the penalty of life imprisonment and fine in the amount of twenty thousand pesos correctly imposed by the trial court should be retained. (PP v Carreon, 12/9/97)

COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM, EFFICACY OR MORALITY OF LAWS

It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment, modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the law-making body. (People v. Veneracion) REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS

The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the basis for determining the convicts eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People v. Lucas)

ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES NOT ALTER CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE.

While the number of persons killed does not alter the characterization of the offense as robbery with homicide, the multiplicity of the victims slain should have been appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that robbery with multiple killings would be. (People V. Timple)

ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION OF ARTICLE 294 OF THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT BE APPLIED RETROACTIVELY; CASE AT BAR.

Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable byreclusion perpetua to death. In view, however, of the first paragraph of Section 19, Article III of the 1987 Constitution, which provides that: Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua (Emphasis supplied) only the penalty of reclusion perpetua could be imposed by the trial court. Hence, the attended aggravating circumstances in this case had no impact upon the determination of the proper penalty by the trial court. By Republic Act No. 7659 (effective 31 December 1993), Congress re-imposed the death penalty for certain heinous crimes, including robbery with homicide and robbery with rape. By the same statute, Article 294 of the Revised Penal Code was amended to read as follows: Any person guilty of robbery with the use of violence against or intimidation on any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. . . . (Emphasis supplied) Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, however, cannot be applied retroactively in this case. To do so would be to subject the appellant to the death penalty which could not have been constitutionally imposed by the court a quo under the law in effect at the time of the commission of the offenses. (People v. Timple)

A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS KIDNAPPING

The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations constituting grave coercion, the elements of which were sufficiently proved by the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal Procedure. (People -vs- Astorga)

ELEMENTS OF GRAVE COERCION

Grave Coercion or coaccion grave has three elements:

a.

That any person is prevented by another from doing something not prohibited by law, or

compelled to do something against his or her will, be it right or wrong;

b.

That the prevention or compulsion is effected by violence, either by material force or such a

display of it as would produce intimidation and, consequently, control over the will of the offended party; and

c.

that the person who restrains the will and liberty of another has no right to do so or, in other

words, that the restraint is not made under authority of a law or in the exercise of any lawful right.

(People -vs- Astorga)

ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL ELEMENT OF KIDNAPPING

Actual detention or locking up is the primary element of kidnapping. If the evidence does not adequately prove this element, the accused cannot be held liable for kidnapping. In the present case, the prosecution merely proved that appellant forcibly dragged the victim toward a place only he knew. There being no actual detention or confinement, the appellant may be convicted only of grave coercion.

(People -vs- Astorga; GGR 110097, December 22, 1997)

DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND 20 THEREOF AS AMENDED BY R.A. NO. 7659.

In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on 29 July 1994, this Court ruled as follows: (1) Provisions of R.A. No. 7659 which are favorable to the accused shall be given retroactive effect pursuant to Article 22 of the Revised Penal Code. (2) Where the quantity of the dangerous drug involved is less than the quantities stated in the first paragraph of Section 20 of R.A. No. 6425, the penalty to be imposed shall range fromprision correccional to reclusion temporal, and not reclusion perpetua. The reason is that there is an overlapping error, probably through oversight in the drafting, in the provisions on the penalty of reclusion perpetua as shown by its dual imposition, i.e., as the minimum of the penalty where the quantity of the dangerous drugs involved is more than those specified in the first paragraph of the amended Section 20 and also as the maximum of the penalty where the quantity of the dangerous drugs involved is less than those so specified in the first paragraph. (3) Considering that the aforesaid penalty of prision correccional toreclusion temporal shall depend upon the quantity of the dangerous drugs involved, each of the component penalties thereof prision correccional, prision mayor, and reclusion temporal shall be considered as a principal imposable penalty depending on the quantity, such that the quantity of the drugs enumerated in the second paragraph should then be divided into three, with the resulting quotient, and double or treble the same, as the bases for determining the appropriate component penalty. (4) The modifying circumstances in the Revised Penal Code may be appreciated to determine the proper period of the corresponding imposable penalty or even to effect its reduction by one or more degrees; provided, however, that in no case should such graduation of penalties reduce the imposable penalty lower than prision correccional. (5) In appropriate instances, the Indeterminate Sentence Law shall be applied and considering that R.A. No. 7659 has unqualifiedly adopted the penalties under the Revised Penal Code with their technical signification and effects, then the crimes under the Dangerous Drugs Act shall now be considered as crimes punished by the Revised Penal Code; hence, pursuant to Section 1 of the Indeterminate Sentence Law, the indeterminate penalty which may be imposed shall be one whose maximum shall be within the range of the imposable penalty and whose minimum shall be within the range of the

penalty next lower in degree to the imposable penalty. With the foregoing as our touchstones, and it appearing that the quantity of the shabu recovered from the accused in this case is only 0.0958 gram, the imposable penalty under the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of R.A. No. 7659, should be prision correccional. Applying the Indeterminate Sentence Law, the accused may then be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum.

WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY DECISION)

In this case, the stolen property is a Yamaha RS motorcycle bearing plate no. CZ-2932 with sidecar valued at P30,000.00. Since this value remains undisputed, we accept this amount for the purpose of determining the imposable penalty. In simple theft, such amount carries the corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the maximum period. Considering that the penalty for qualified theft is two degrees higher than that provided for simple theft, the penalty of prision mayorin its minimum and medium periods must be raised by two degrees. Thus, the penalty prescribed for the offense committed of qualified theft of motor vehicle is reclusion temporal in its medium and maximum periods to be imposed in its maximum period. (PP -vsRicardo Dela Cruz alias Pawid, Manuel dela Cruz alias Pawid, Danilo Dela Cruz and John Doe alias Henry Balintawak and Orlando Padilla y Mendoza, Accused. RICARDO DELA CRUZ alias Pawid, AccusedAppellant. G.R. No. 125936 Feb. 23, 2000 )

PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER COURTS

The bail bond that the accused previously posted can only be used during the 15-day period to appeal (Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a) of Rule 114 which provides that the bail shall be effective upon approval and remain in force at all stages of the case, unless sooner cancelled, until the promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it. This amendment, introduced by SC Administrative Circular 12-94 is a departure from the old rules which then provided that bail shall be effective and remain in force at all stages of the case until its full determination, and thus even during the period of appeal.

Moreover, under the present rule, for the accused to continue his provisional liberty on the same bail bond during the period to appeal, consent of the bondsman is necessary. From the record, it appears that the bondsman, AFISCO Insurance Corporation, filed a motion in the trial court on January 06, 1987 for the cancellation of petitioners bail bond for the latters failure to renew the same upon its expiration. Obtaining the consent of the bondsman was, thus, foreclosed. ( Aniceto Sabbun Maguddatu and Laureana Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF APPEALS (Fourth Division and People of the Philippines, Respondents. G.R. No. 139599, Feb. 23, 2000)

WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.

We find, however, that the aggravating circumstance of abuse of superior strength attended the killing. To appreciate abuse of superior strength as an aggravating circumstance, what should be considered is not that there were three, four or more assailants of one victim, but whether the aggressors took advantage of their combined strength in order to consummate the offense. It is therefore necessary to show that the attackers cooperated in such a way as to secure advantage of their superiority in strength.

In this case, appellants and their companions purposely gathered together and armed themselves to take advantage of their combined strength to ensure that Reynaldo Danao would be able to kill the victim without any interference from other bystanders.

However, not having been alleged in the Information, abuse of superior strength can only be considered as a generic aggravating circumstance. (PP -vs- CIELITO BULURAN Y RAMIREZ and LEONARDO VALENZUELA Y CASTILLO, Accused-Appellants. G.R. No. 113940, Feb. 15, 2000)

USE OF MOTOR VEHICLE AS QUALIFYING AGGRAVATING CIRCUMSTANCE

The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means thereof. (PP -vsTHADEOS ENGUITO Defendant-Appellant. G.R. 128812, Feb. 28, 2000)

ELEMENTS OF EVIDENT PREMEDITATION

(1) The time when the offender determined to commit the crime; (2) an act manifestly indicating that the offender had clung to his determination; and (3) sufficient lapse of time between the determination and the execution to allow the offender to reflect on the consequences of his act. (PP -vs- ROGELIO GALAM, Accused-Appellant. G.R. No. 114740, Feb. 15, 2000)

WHEN NIGHTTIME IS AGGRAVATING

Nighttime as an aggravating circumstance must have specially been sought to consummate the crime, facilitate its success or prevent recognition of the felon. (PP -vs- CONSTANCIO MERINO and ARNULFO SIERVO, AccusedAppellants. G.R. No. 132329, Dec. 17, 1999)

TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT

There is treachery when the offender commits any of the crimes against the person employing means, methods or forms in the execution thereof which tend directly and specifically to insure its execution without risk to himself arising form the defense which the offended party might make. As earlier mentioned, the deceased was already rendered completely helpless and defenseless when he was stabbed by Pedro Lumacang. Although he was able to run a short distance, he had absolutely no means of defending himself from the three brothers who were armed with hunting knives, bent on finishing him off. The wounded victim had not even so much as a stick or a stone to parry off their blows. It should be noted, however, at this point that inasmuch as treachery has been appreciated as a qualifying circumstance, abuse of superior strength should not have been considered separately inasmuch as it is absorbed in treachery. (PP -vs- PEDRO LUMACANG, PABLO LUMACANG and DOMINGO

LUMACANG, Accused-Appellants. G.R. No. 120283, Feb. 1, 2000)

WHY DWELLING IS AGGRAVATING

The home is a sort of sacred place for its owner. He who goes to anothers house to slander him, hurt him or do him wrong, is more guilty than he who offends him elsewhere. (PP -vs- JOSE & NESTOR BiAS, AccusedAppellant. G.R. No. 121630, Dec. 8, 1999)

EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY

Moreover, Milyn Ruales also testified that the knife used by accused was hidden from view. Thus, Isabel Ruales was not prepared for such a violent attack, especially considering that, at the time, she was unarmed and was burdened with a large basket filled with about six kilos of corn and dried fish hanging from her shoulders and thus, could not have possibly warded off the blow or run away from her assailant. Although Milyn Ruales described the attack having been frontal, this does not negate treachery since the essence of treachery is the suddenness and unexpectedness of the attack, giving the victim no opportunity to repel it or offer any defense of his person. Thus, we hold that the trial court correctly appreciated the qualifying circumstance of treachery. (PP -vs- CORNELIA SUELTO alias ELY alias ROGELIA SUELTO, G.R. No. 126097, Feb. 8, 2000)

DATE OF EFFECTIVITY OF RA 7659, ETC. Republic Act No. 7659 took effect on 31 December 1993. Accordingly, the said law only applies to crimes defined therein, including rape, which were committed after its effectivity. It cannot be applied retroactively because, to do so, would go against the constitutional prohibition on ex post facto laws. For this reason, in order for the death penalty to be imposable, it is incumbent upon the prosecution to establish beyond a shadow of doubt that the case of the accused is already covered by Republic Act No. 7659. AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH

(a)

makes criminal an act before the passage of the law and which was innocent when

done, and punishes such an act; (b) (c) crime when committed; (d) alters the legal rules of evidence, and authorizes conviction upon less or different aggravate a crime, or makes it greater than it was, when committed; changes the punishment and inflicts a greater punishment than the law annexed to the

testimony than the law required at the time of the commission of the offense; (e) assuming to regulate civil rights and remedies only, in effect imposes penalty or

deprivation of a right for something which when done was lawful; and (f) deprives person accused of a crime of some lawful protection to which he has become

entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (PP -vs- CHARITO ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)

ILLEGAL POSSESSION OF FIREARMS (REPUBLIC ACT NO. 8294)

SECTION 1. follows:

Section 1 Presidential Decree No. 1866, as amended, is hereby further amended to read as

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) 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.

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 detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup detat.

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.

SECTION 2. follows:

Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as

SECTION 3.

Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty

of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon 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 pillbox, molotov cocktail bombs, fire bombs, or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices 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, insurrection, sedition or attempted coup detat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup detat.

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 explosives 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.

SECTION 3. follows:

Section 5 of Presidential Decree No. 1866, as amended, is hereby further amended to read as

SECTION 5.

Tampering of Firearms Serial Number. The penalty of prision correccional shall be imposed

upon any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm.

SECTION 4. follows:

Section 6 of Presidential Decree No. 1866, as amended, is hereby further amended to read as

SECTION 6.

Repacking or Altering the Composition of Lawfully Manufactured Explosives. The penalty of

prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives.

SECTION 5.

Coverage of the Term Unlicensed Firearm. The term unlicensed firearm shall include:

1) 2)

firearms with expired license; or unauthorized use of licensed firearm in the commission of the crime.

RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED MAYBE CONVICTED

In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz:

a.

the existence of the subject firearm; and

b.

the fact that the accsused who owned or possessed it does not have the license

or permit to possess the same. (People v. Castillo, 325 scra 613)

The essence of the crime of illegal possession is the possession, whether actual or constructive, of the subject firearm, without which there can be no conviction for illegal possession.

After possession is established by the prosecution, it would only be a matter of course to determine whether the accused has a license to possess the firearm. (People v. Bansil, 304 scra 384)

Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also to prove beyond reasonable doubt. (People v. Khor, 307 scra 295)

To convict an accused for illegal possession of firearms and explosives under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz: (a) the existence of the subject firearm or explosive which may be proved by the presentation, of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosive Unit that the accused has no license or permit to possess the subject firearm or explosive. (Del Rosario v. People, 05/31/01)

We stress that the essence of the crime penalized under P.D. 1866 is primarily the accuseds lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law. (People v. Cortez, 324 scra 335, 344)

Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved. (People v. Lubo, 101 Phil. 179) To support a conviction, however, there must be possession coupled with intent to possess (animus possidendi) the firearm. (Supra)

PRESENT MEANING OF ILLEGAL POSSESSION OF FIREARM

Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. The scope of the term has been expanded in Sec.5 of R.A. 8294.

Thus, the unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor may still aggravate the resultant crime. In the case at bar, although appellants may have been issued their respective licenses to possess firearms, their carrying of such weapons outside their residences and their unauthorized use thereof in the killing of the victim may be appreciated as an aggravating circumstance in imposing the proper penalty for murder. (Pp. V. Molina; Gr 115835-36; July 22, 1998)

ILLEGAL POSSESSION OF FIREARM ONLY SPECIAL AGGRAVATING CIRCUMSTANCE IN CRIMES OF HOMICIDE, ETC.

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 inPp. V. Tac-an and Pp. V. Quijada :

Neither is the 2

nd

paragraph of Sec.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 2
nd

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 use of an unlicensed firearm as a qualifying circumstance. (People v. Molina; GR 115835-36, July 22, 1998)

NEW PENALTY FOR LOW POWERED FIREARM IN ILLEGAL POSSESSION OF FIREARMS

Petitioner, fortunately for him, is nonetheless not entirely bereft of relief. The enactment and approval on 06 Jun 1997 of RA 8294, being favorable to him, should now apply. Under this new law, the penalty for possession of any low powered firearm is only prision correccional in its maximum period and a fine of not less than P15,000.00.

Applying the Indeterminate Sentence Law, the present penalty that may be imposed is anywhere from two years, four months and one day to four years and two months of prision correccional in its medium period, as minimum, up to anywhere from four years, two moths and one day to six years of prision correccional in its maximum period, as maximum.. The court in addition, may impose a fine consistent with the principle that an appeal in a criminal case throws the whole case open for review by the appellate tribunal. (Mario Rabaja v CA, et al., Oct 8/97)

ACTS PUNISHABLE:

1.

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

2.

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.

3. 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 detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup detat.

4. 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.

1.

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside

his residence without legal authority therefor

2.

Any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm.

3.

Any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured

explosives.

MALUM PROHIBITUM

The offense of illegal possession of firearm is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. (People v De Gracia, 7/6/94)

1.

Manufacture, deal in, acquire, dispose or possess. It is these acts relative to firearms. The

obvious underlying principle is the undesirability of the proliferation of firearms and their free traffic and possession. This is clear from the first two whereas clause of P.D. 1866. It is then clear that illegal possession, etc. is a malum prohibitum. For purpose of simplicity we will confine our analysis to possession, although what we will discuss hereunder applies to manufacture, dealing in, acquiring or disposing as well.

1.1.

it is not correct to say without qualification that intent is immaterial. Intent as to

possession is immaterial. Intention to possess is material.Whatever the purpose of the possession may be is consistently immaterial. That one was in possession of an unlicensed firearms merely for ones protection without intending harm on anybody is a fruitless defense. It is the clear doctrine of such cases as People v. de la Rosa, 284 SCRA 158 that mere possession without criminal intent is sufficient on which to render a judgment of conviction. 1.2. HOWEVER, possession must be established beyond reasonable doubt, and

in view of the special meaning that possession has in criminal law, discovery by police, officers alone of a firearmin the baggage or gloves compartment of a car will not necessarily be sufficient to sustain a conviction of the car owner or driver. Essential to the legal concept of possession in illegal possession cases is animus possidendio. (People v. de la Rosa, supra; People v. Sayang, 110 Phil 565).

1.3.

How is animus possidendi established? There must be proved either by direct or

circumstantial evidence the intent of the accused to possess, or to keep the firearm. a.) Animus Possidendi is determined by recourse to overt acts prior to or simultaneous with possession and other surrounding circumstances. (People v. de la Rosa) when it is established that the accused purchased the weapon in question, a good case for animus possidendi is made. b.)Animus possidendi may also be inferred from the fact that an unlicensed firearms was under the apparent control and power of the accussed. (People v. Verches, 33 SCRA 174) c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001) holds that the gravamen for the offense of violation of P.D.1866 is the possession of firearm without the necessary permit and/or license. The crime is immediately consummated upon mere possession of a firearm devoid of legal authority, since it is assumed that the same is possed with animus possidendi Does it then follow that everyone found with the firearm is in possession thereof for the purpose of prosecution and conviction under P.D. 1866 as amended by R.A. 8294? The results would be patently absurd.

h.

A person who finds a firearms and takes it with him to the police station for

the purpose of turning it over to the police should be commended, rather than prosecuted.

ii.

A person who is stopped at a check-point at which it is discovered that there

is firearms placed either advertently or inadvertently in his baggage compartment without his knowledge - cannot be held liable for illegal possession. iii. If the offender was in possession of an unlicensed only on the occasion of the

shooting for transitory purpose and for the short moment in connection with the shooting, the Supre Court held in People v. Macasling, 237 SCRA 299 that there was no evidence of animus possidendi. iv. It then appears to be the more reasonable position that where a person is

apprehended with an unlicensed weapon, animus possidendi will be disputably presumed. The accused may controvert the presumption of animus possidendi. To convict, the court needs proof beyond reasonable doubt of animus possidendi.

1.4 What the prosecution must prove for it to succeed under the law is two-fold: first, the existence of the firearm; second, the absence of a license or a permit to possess. (People v. Rugay, 291 SCRA 692)

a.) To prove the existence of the firearm, it is not absolutely necessary that the object evidence be presented. It is very well possible that the accused effectively conceals the weapon before his apprehension. Incontrovertible testimonial evidence may successfully established the existence of the firearm. (People v. Narvasa, G.R. 132878 [November 16, 1998]),

b.) An interesting question arises. The present law makes penalties depend on the caliberof the firearm, i.e, on whether it is high-powered or low-powered In People v. Gutierrez, G.R. 132878 (January 18, 1999) the Supreme Court ruled that a U.S. carbine M1 caliber .30 was high-powered because it was capable of ejecting more than one bullet in one squeeze. If it is the criterion, then logically, caliber can be established by teetimony establishing the manner in which the firearm ejected bullets. The distinguishing features of particularly firearms, furthermore, that may be recited by keen observer sworn in a s witness my identify the firearm as well as it caliber. This can be established by a judicious combination of the testimonial evidence of observers abd experts.

c.) A firearm is unlicensed when a certification from the Firearms and Explosives Unit attests that no license has been issued. There will still be a case for illegal possession if one holding a firearm duly licensed carries it outside his residence when he has no permit to carry it outside his residence (Pastrano v. Court of Appeals, 281 SCRA 287). A fortiori, the use of a licensed firearm by one not licensed or permitted to use it would still be illegal possession.

d.) A security guard employed by a security agency and issued a firearm by the agency has the right to assume that the firearm issued to him is a licensed firearm. If it turns out that the firearm is not licensed, there is no animus possidendi of an unlicensed firearm. (Cuenco v. People, 33 SCRA 522). The case is obviously different, however, if a

police officer leaves with a cousin for safekeeping his firearm. The cousin knows fully well that he has no permit or authority to keep the firearm. If he accepts to do this favor, he is indictable. (People v. Sayong, 110 Phil 565)

2.

Provided no other crime is committed. It is this proviso in the amendatory law that has visited

countless woes on numerous judges and has occasioned not easily reconcilable decisions by the Supreme Court .it is obviously a case of not only poor but miserable draftsmanship!

2.1 It is clear that where there is no other offense except the unlawful possession of a firearm, the penalties provided for in the amended Section 1 shall be imposed: prision correccional in its maximum period for low-powered firearms, and prision mayor in its maximum periods for high-powered firearms. Thus in People v. Nunez, G.R. 112092 (March 1, 2001) holds that a person may be convicted of simple illegal possession if the illegal possession is proved and the frustrated murder and murder case involving the use of the illegal possession has not been sufficiently proved. People v. Avecilla, G.R. 117033 (February 15, 2001) teaches that the crime of illegal possession of firearms, in its simple form, is committed any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup detat.

2.2. It is also clear that where either homicide or murder is committed with the use of an unlicensed firearm, such use shall constitute an aggravating circumstances. It is well known that R.A. 8294 was initiated by Senator Ramon Revilla as a favor to his friend Robin Padilla who was then serving sentence for illegal possession. It was therefore meant to be more benevolent, as it is in the penalties it impose. Senator Revilla, however, could not see far enough (and regrettably neither could other legislators) and the effect at least in the case of murder is that it may send the accused to the lethal injection chamber where otherwise he would not be meted out the death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001) with the Chief Justice himself as ponente illustrates the complication the law has introduced. In this case, the accused had been charged with two offenses: robbery with homicide and illegal possession of firearms. During the pendency of the case, the amended law came into force. The court then held that insofar as R.A. 8294 was favorable to the accused in that it spared him from separate prosecution for illegal possession, the charge for illegal possession was dropped. Insofar, however, as it increased the penalty for robbery with homicide, the aggravating circumstances of the use of unlicensed weapon could not be appreciated. Rule 110, Section 9 of the Revised Rules of Criminal Procedure will apply: As an aggravating circumstances, the use of the unlicensed weapon must be alleged in the information.

2.3 When the violation of the law penalizing unlicensed weapon is in furtherance of or incident to, or in connection with the crimes of rebellion, insurrection, sedition or attempted coup detat then the violation is absorbed in the main offense. (R.A. 8294, Section 1).

2.4 What happens when an unlicensed weapon is used in the commission of other offenses other that homicide, murder, rebellion, insurrection, sedition or attempted coup d etata? People v. Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) provides the answer in the distinctively clear language of Justice Panganiban: 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. In brief, where the accused commits a crime other than those enumerated with the use of an unlicensed weapon, no separate charge for such use will be brought against him. Consistent with this is the disposition by the Supreme court decreed: Accordingly, all pending cases for illegal possession of firearms should be dismissed if they arose from the commission of crimes other than those indicated in Section 1 and 3 of R.A. 8294.

2.5 Clearly the law leads to absurd results, for when the use of an unlicensed weapon attends the commission of a crime, no matter how trivial, the case of illegal possession recedes into judicial irrelevance. The matter is definitely one that calls for a curative statute and the Supreme Court has referred the matter to the Congress for another look. One moral lesson can be learned: Laws passed as favor to ones friend is a poor laws!

OWNERSHIP IS NOT AN ESSENTIAL ELEMENT OF ILLEGAL POSSESSION

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 ones control and management.

INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL

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 firearms, it must still be shows that there was animus possidendi or an intent to possess on the part of the accused.

There is no evidence of animus possedendi if the offender was in possession of an unlicensed firearm only on the occasion of the shooting for a transitory purpose and for the short moment in connection with the shooting.

Lack of evidence is an essential element of the crime and that the same must be alleged in the Information and duly proved. (People -vs- Macasling, 237 SCRA 299)

Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as amended. One may be convicted of possession of an unlicensed firearm even if he is not the owner thereof. (People -vs- Reynaldo Cruz, GR No.

76728, August 3, 1988)

Even if the gun is paltik, there is a need to secure license for the gun, and if found without any license therefor, the offender is liable for violation of PD 1866. (People vs- Filemon Ramos, 222 SCRA 557)

If an unlicensed firearm is used to commit a crime other than homicide or murder, such a direct assault with attempted homicide, the use of an unlicensed firearm is neither an aggravating circumstances nor a separate offense. Since the law uses the word Homicideor Murder, possession of an unlicensed firearm is not aggravating in Attempted Homicide. (People -vs- Walpan Ladjaamlam, et al., GR No. 136149-51, September 19, 2000)

Where the accused was charged of Murder and violation of PD 1866 and that, in the meantime, Republic Act 8294 took effect, the accused should be convicted only ofMurder. The use of unlicensed firearm should not be considered as aggravating because the Court will have to impose the death penalty which cannot be allowed because, at the time of the commission of the offense, the death penalty cannot as yet, be imposed. However, in his concurring opinion, Chief Justice Hilario Davide, Jr. declared that, under such a factual milieu, the charge of violation of PD 1866 should continue and if the accused is found guilty, he should be meted the death penalty under Republic Act 8294. (People -vs- Victor Macoy, GR No. 126253, August 16, 2000)

Where the prosecution failed to adduce the gun in evidence coupled with the fact that per Certification of the FEU, no available information regarding the license for the gun and the inconsistency in the evidence of the prosecution, the latter failed to discharge its burden. (People -vs- Ricolito Rugay, et al., 291 SCRA 692)

Mere possession without criminal intent is sufficient on which to render a judgment of conviction for violation of PD 1866, as amended. However, there must be animus possedendi or intent to possess without any license or permit. Good faith is not a defense. Neither is lack of criminal intent. (People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)

Temporary, incidental, casual or harmless possession of firearm is not punishable. Hence, stealing a firearm to render the owner defenseless is not a crime under the law. (idem, supra)

Possession includes actual physical possession and constructive possession. The animus can be determined from the overt acts of the accused prior to or coetaneous with and other surrounding circumstances of such possession.

Hence, where the accused found a gun and was on his way to deliver the gun to the police authority and was arrested, in the process, there is no animus possedendi. (People -vs- Rodolfo Dela Rosa, et al., supra)

Even if a paltik is a homemade gun and thus illegally manufactured nevertheless, the Prosecution is burdened to prove that the accused has no license for the gun. (People -vs- Felimon Ramos, et al., 222 SCRA 557)

For the accused to be guilty of violation of PD 1866 as amended the Prosecution must prove: (a) the existence of the subject firearm; (b) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same. (People -vs- Ricolito Rugay, et al., 291 SCRA 692)

Where

the accused is convicted of violation of Republic Act 8294 and meted a penalty less than six (6) years, and a

fine of P15,000.00, he should be ordered to undergo subsidiary imprisonment in case of insolvency. (Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290)

In the light of People -vs- Martin Simon, 234 SCRA 555, and Articles 13 and 14, in relation to Article 63, of the Revised Penal Code and the Indeterminate Sentence Law for violation of the Revised Penal Code may now be applied for violation of PD 1866, as amended and Rep[ublic Act 6425, as amended.

Even if a person is licensed to possess a firearms but brings out firearm outside of his residence without permit therefor, he is guilty of violation of the last paragraph of Section 1 of PD 1866, as amended. A Mission Order cannot take the place of a license. A Mission Order can only be issued to one licensed to possess a firearm. (Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287)

If the accused borrowed a gun from another who is licensed to possess firearm, may the former be liable for violation of PD 1866, as amended? Yes. Even if the gun is licensed to one and lends it to another, the latter is liable for violation of PD 1866, as amended. A license to possess a firearm and a permit to carry a licensed firearm outside of his residence is not transferable. (Pedrito Pastrano -vs- Court of Appeals, et al., supra)

Even if the firearm subject of the crime is not adduced in evidence one may still be convicted of possession of an unlicensed firearm as long as proof was adduced that the acused was in possession of a firearm. (People -vs- Felicisimo Narvasa, GR No. 128618, November 16, 1998)

NOTE: Under Republic Act 8294, the penalty depends upon the caliber of the gun. Suppose there is no testimony as to the caliber of the gun?

Where a security guard was given by his employer, a security agency, a firearm, and the accused assumed that the employer secured the license for the firearm but that it turned out that the employer failed to get any license, the security guard is not criminally liable. The security guard has the right to assume that the security agency secured the license. (Ernesto Cuenca -vs- People, 33 SCRA 522)

If a constabulary soldier entrusted his gun to the accused for safekeeping and later the accused found in possession of the gun, the accused is guilty of possession of unlicensed firearm. To exculpate himself, the accused must prove absence of animus possidendi. (People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)

A secured a loan from B and pledged his unlicensed firearm as security for the loan. A promised to pay his loan and retrieve the firearm as soon as he had money. B found in possession of the unlicensed firearm. For the court to sustain the contention of B is to authorize the indefinite possession by B of the unlicensed firearm because there was no way to determine when A could pay his account. (People -vs- Cornelio Melgas, 100 Phil. 298)

If a licensed firearm if used to commit Murder or Homicide, such circumstances is merely a special aggravating circumstance which must be alleged in the Information and cannot be offset by any mitigating circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998)

The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA 601; People -vs- Jesus Deunida, and People -vs- Barros and People -vs- Daniel Quijada 259 SCRA 191 had been overtaken by Republic Act 8294.

Under the amendment, the death penalty may now be imposed if the accused is convicted of Murder with the use of licensed or unlicensed firearms.

As long as the accused is proved to have been in possession of the unlicensed firearm even if the firearm is not adduced in evidence, conviction under the law is proper. (People -vs- Felicisimo Narvasa, supra)

Republic Act 8294 took effect on July 6, 1997.

If the accused is charged of Murder and violation of PD 1866 and during the trial, Republic Act 8294 took effect, the accused cannot be convicted of violation of PD 1866, as amended. Neither should the possession of an unlicensed firearm be considered as an aggravating circumstance as it will be less favorable to the accused. If the accused used asumpak to kill the victim, the prosecution must prove that he had no license or permit to possess the sumpak. (People -vs- Cipriano de Vera, G.R. No. 121462-63, June 9, 1999)

Compare People -vs- Wilfredo Filoteo, 290 SCRA 627 where the accused was convicted of Murder and violation of PD 1866 and during the pendency of the appeal, Republic Act 8294 took effect. Our Supreme Court affirmed the conviction of the Accused of two (2) crime of Homicide and violation of PD 1866, as amended, and applied the penalty for the crimes under the amendment.

In People -vs- Veriato Molina, et al., 292 SCRA 742, our Supreme Court En Banc declared that where the accused was convicted of said crio,es, by the Trial Court but that during the pendency of the appeal, with the Supreme Court, Republic Act 8294 took effect, the accused should only be convicted of Murder with the use of an unlicensed firearm as mere a special aggravating circumstance.

Murder, under Republic Act 8294, is used in its generic term and, hence, includes Parricide (People versus Octavio Mendoza, GR No. 109270-80, January 18,1999)

A United States carbine M1, caliber .3-0 is a high-powered gun because it is capable of emitting two or three bullets in one squeeze. (People -vs- Eduardo Gutierrez, GR No. 132878, September 1999)

It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to apply. It is not enough that there is evidence of the existence of the gun which can be established either by testimony or presentation of the gun itself.

Possession of an unlicensed firearm and used in killing is a special aggravating circumstance. (People -vs- Felicisimo Narvasa, GR No. 128618, November 18, 1998)

The Decision of the Supreme Court in People versus Rex Bergante, et. al., GR No. 120369, February 27, 1998, that the use of an unlicensed firearm to commit murder is only a generic aggravating circumstance is no longer true.

Possession under the law may either be actual physical possession or constructive possession. However, although the crime under PD 1866, as amended, is malum prohibitum, however, there must be animus possidendi, or intent to possess. Animus possidendi may be inferred from the fact that an unlicensed firearm is under the apparent control and power of the accused. however, animus possidendi may be contradicted if a person in possession of an unlicensed firearm does not assert a right thereto.

If the possession of an unlicensed gun is merely temporary, incidental or transient, the same is not punishable under PD 1866. However, the law does not provide for a fixed period of time for one to be deemed in possession of an unlicensed firearm. (People -vs- Rolando Verches, 233 SCRA 174). Each factual milieu must be considered.

IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS)

P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by Republic Act 8264. Aside from lowering the penalty for said crime, R.A. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance. This amendment has two (2) implications: first, the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but merely as a special aggravating circumstance; second, as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one penalty shall be imposed on the accused.

Prescinding therefrom, and considering that the provisions of the amendatory law are favorable to herein appellant, the new law should be retroactively applied in the case at bar. It was thus error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of the case, the crime for which the appellant may be charged ishomicide, aggravated by illegal possession of firearm, the correct denomination for the crime, and not illegal possession of firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which aggravates the crime of homicide under the amendatory law.

EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH ADMISSION IS NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF FIREARM

Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun recovered from his possession, his admission will not relieve the prosecution of its duty to establish beyond reasonable doubt the appellants lack of license or permit to possess the gun. In People vs. Solayao, we expounded on this doctrine, thus:

x x x by its very nature, an admission is the mere acknowledgement of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt. In other words, it is a statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction. From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged.

Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states:

An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.

Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution butdoes not stand as proof of the fact of absence or lack of a license. (emphasis supplied) (PP -vs- JULIAN CASTILLO Y LUMAYRO, G.R. No. 131592-93, Feb. 15, 2000)

ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS To convict an accused for illegal possession of firearms and explosive under P.D. 1866 as amended, two (2) essential elements must be indubitably established, viz: (a) theexistence of the subject

firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive. In the case at bar, the prosecution failed to prove the second element of the crime, i.e., the lack of license or permit of appellant Cortez to possess the hand grenade. Although the hand grenade seized by PO2 Santos from appellant was presented in court, the records bear that PO2 Santos did not submit the grenade to the PNP Firearms and Explosives Unit for verification. This explains why no certification or testimony was adduced by the prosecution at the trial to prove that appellant Cortez was not licensed to possess the explosive. The failure of the prosecution to adduce this fact is fatal to its cause. We stress that the essence of the crime penalized under

P.D. 1866 is primarily the accuseds lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law.

MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE? In the case of an explosive, a permit or license to possess it is usually granted to mining corporations, military personnel and other legitimate users. (PP -vs- BERNIE CORTEZ Y NATANIO, ET AL., G.R. Nos. 13161920, Feb. 1, 2000)

UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF FIREARMS AND FOR HOMICIDE IS NOT ALLOWED With respect to the conviction of accused-appellant for illegal possession of firearms under P.D. No. 1866, it was held in the case of People vs. Molina and reiterated in the recent case of People vs. Ronaldo Valdez, that in cases where murder or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no crime is committed. In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No. 123918, Dec. 9, 1999)

ANTI-WIRE TAPPING LAW (RA 4200)

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

LISTENING TO CONVERSATION IN EXTENSION LINE OF TELEPHONE IS NOT WIRE-TAPPING

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (66 SCRA 113,120)

A PERSON CALLING ANOTHER BY PHONE MAY SAFELY PRESUME THAT THE OTHER MAY HAVE AN EXTENSION LINE AND RUNS THE RISK OF BEING HEARD BY A 3
RD

PARTY.

An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another.

MERE ACT OF LISTENING TO A TELEPHONE CONVERSATION IN AN EXTENSION LINE IS NOT PUNISHED BY ANTI-WIRE TAPPING LAW

It can be readily seen that our lawmakers intended to discourage through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements.