PNP Firearms and Explosives Division issued a certification (Exhibit L) stating that per records in his office,
the appellant is not a licensed/registered firearm holder of any kind and caliber. Armed with the said
[G.R. No. 142295. May 31, 2001]
VICENTE DEL ROSARIO y NICOLAS, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PARDO, J.:
Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of
Appeals[1] affirming with modification the decision of the Regional Trial Court, Bulacan, Branch 20, Malolos,
and finding him guilty beyond reasonable doubt of violation of P. D. No. 1866, as amended by Republic Act No.
8294 (illegal possession of firearms), sentencing him to four (4) years, nine (9) months and eleven (11) days
of prision correccional, as minimum, to six (6) years, eight (8) months and one (1) day of prision mayor, as
maximum, and to pay a fine of P30,000.00.
On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with the
Regional Trial Court, Bulacan, Malolos an Information charging petitioner Vicente del Rosario y Nicolas with
violation of P. D. No. 1866, as follows:
That on or about the 15th day of June 1996, in the municipality of Norzagaray, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there
wilfully, unlawfully and feloniously have in his possession under his custody and control, the following, to wit:
a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license)
b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license)
c) Twenty Seven (27) rds live ammos. For cal. .45
d) Five (5) pcs. Magazines for cal. .45
e) Eight (8) rds live ammunitions for cal. 22
f) Five (5) pcs. Magazines short for cal. 5.56 (M16)
g) Twenty (20) rds live ammunitions for cal 5.56
without first having obtained a proper license therefor.
Contrary to law.[2]
On June 25, 1996, the trial court arraigned the petitioner. He pleaded not guilty.[3] Trial ensued.
The facts, as found by the Court of Appeals, are as follows:
Sometime in May 1996, the police received a report that accused-appellant Vicente del Rosario was in
possession of certain firearms without the necessary licenses. Acting upon the report, P/Sr. Insp. Jerito Adique
of the PNP Criminal Investigation Group at Camp Olivas, Pampanga inquired from the PNP Firearms and
Explosive Division whether or not the report was true. On May 10, 1996, P/Sr. Insp. Edwin C. Roque of the
certification, P/Sr. Insp. Adique applied for a search warrant to enable his team to search the house of
appellant.
On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Fernandez, Sr. of the Regional Trial
Court of Quezon City, Branch 217, authorizing the search of the residence of appellant at Barangay Tigbe,
Norzagaray, Bulacan.[4] On June 15, 1996, at about 7:00 oclock in the morning, a team led by P/Sr. Insp.
Adique went to Norzagaray to serve the warrant. Before proceeding to the residence of the appellant, the
police officers requested Barangay Chairman Rogelio de Silva and Barangay Councilman Aurelio Panteleon to
accompany them in the implementation of the warrant. Upon arrival at the house of appellant, the police
officers introduced themselves to the wife of appellant. When the appellant came out, P/Sr. Insp. Adique
informed him that they had a search warrant and that they were authorized to search his house. After
appellant gave his permission, the police officers conducted a search of the house. The search yielded the
following items: (a) a caliber .45 pistol with Serial No. 703792 with five magazines of caliber .45 (Exhibits B
and H) found at the masters bedroom; (b) five magazines of 5.56 M-16 rifle and two radios (Exhibits C to C-4)
found in the room of appellants daughter; and (c) a caliber .22 revolver with Serial No. 48673 (Exhibit F)
containing 8 pieces of live ammunition (Exhibit M) found in the kitchen of the house. When asked about his
license to possess the firearms, the appellant failed to produce any. This prompted the police officers to seize
the subject firearms.
SPO2 Marion Montezon, one of the searching officers, prepared three separate inventories of the seized items
(Exhibits H, M and N). The inventories were signed by P/Sr. Insp. Adique, the appellant and the barangay
officials who witnessed the search. Thereafter SPO2 Montezon prepared a certification of orderly search
(Exhibit I) which was signed by the appellant and the barangay officials attesting to the orderly conduct of the
search.
For his defense, appellant contends that he had a license for the caliber .45 pistol recovered in his bedroom
and that the other items seized during the search including the caliber .22 revolver, were merely planted by the
police officers. Appellant likewise assails the manner in which the search was carried out, claiming that the
police officers just barged into his house without asking permission. Furthermore, he claimed that the
barangay officials arrived only after the police already had finished the search.
After trial and on July 2, 1998, the trial court rendered a judgment of conviction, the dispositive portion of which
reads:
WHEREFORE, premises considered, the Court finds the accused VICENTE DEL ROSARIO y NICOLAS guilty
beyond reasonable doubt of violation of P. D. No. 1866 as charged under the Information dated June 17, 1996.
Conformably with the provisions of said law, as amended by Republic Act No. 8294, and pursuant to the
provisions of the Indeterminate Sentence Law, the Court hereby sentences the accused to suffer
imprisonment of six (6) months of arresto mayor, as minimum, to six (6) years of prision correctional, as
maximum, and to pay a fine of Fifteen Thousand Pesos (P15,000.00).[5]
On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being contrary
to facts and the law.[6]
On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification the decision
of the trial court as set out in the opening paragraph of this decision.[7]
On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration and/or new
trial.[8] He contended that the certification issued by the Chief, Firearms and Explosives Division, Philippine
National Police stating that the person named therein had not been issued a firearm license referred to a
certain Vicente Vic del Rosario of barangay Bigte, Norzagaray, Bulacan, not to him. He comes from barangay
Tigbe, Norzagaray, Bulacan, and that he has a valid firearm license.
On February 22, 2000, the Court of Appeals denied the motion for reconsideration for lack of merit.[9]
Hence, this appeal.[10]
Petitioner submits that the search conducted at his residence was illegal as the search warrant was
issued in violation of the Constitution[11] and consequently, the evidence seized was inadmissible. He also
submits that he had a license for the .45 caliber firearm and ammunition seized in his bedroom. The other
firearm, a .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56 mm. cal.
Armalite rifle, and two 2-way radios found in his daughters bedroom, were either planted by the police or
illegally seized, as they were not mentioned in the search warrant.
We find the petition impressed with merit.
We define the issues as follows:
First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized in his
bedroom; and
Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for
5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughters bedroom, were planted by the police
or were illegally seized.
We shall resolve the issues in seriatim.
First: The .45 cal. Colt pistol in question was duly licensed.
Normally, we do not review the factual findings of the Court of Appeals and the trial courts. [12] However,
this case comes within the exceptions.[13] The findings of fact by the Court of Appeals will not be disturbed by
the Court unless these findings are not supported by evidence.[14] In this case, the findings of the lower courts
even directly contradict the evidence. Hence, we review the evidence. The trial court held that the copy of the
license presented was blurred, and that in any event, the court could rely on the certification dated May 10,
1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms and Explosives Division, Philippine
National Police stating that Vicente Vic del Rosario of Barangay Bigte, Norzagaray, Bulacan is not a
licensed/registered firearm holder of any kind and caliber.[15] As against this, petitioner submitted that he was
not the person referred to in the said certification because he is Vicente del Rosario y Nicolas from
Barangay Tigbe, Norzagaray, Bulacan. The Court takes judicial notice of the existence of both barangay
Tigbe and barangay Bigte, in Norzagaray, Bulacan.[16] In fact, the trial court erred grievously in not taking
judicial notice of the barangays within its territorial jurisdiction, believing the prosecutions submission that
there was only barangay Tigbe, and that barangay Bigte in the certification was a typographical
error.[17] Petitioner presented to the head of the raiding team, Police Senior Inspector Jerito A. Adique, Chief,
Operations Branch, PNP Criminal Investigation Command, a valid firearm license. The court is duty bound to
examine the evidence assiduously to determine the guilt or innocence of the accused. It is true that the court
may rely on the certification of the Chief, Firearms and Explosives Division, PNP on the absence of a firearm
license.[18] However, such certification referred to another individual and thus, cannot prevail over a valid
firearm license duly issued to petitioner. In this case, petitioner presented the printed computerized copy of
License No. RCL 1614021915 issued to him on July 13, 1993, expiring in January 1995, by the Chief,
Firearms and Explosives Division, PNP under the signature of Reynaldo V. Velasco, Sr. Supt. (GSC) PNP,
Chief, FEO.[19] On the dorsal side of the printed computerized license, there is stamped the words Validity of
computerized license is extended until renewed license is printed dated January 17, 1995, signed by Police
Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch, FEO.[20] Coupled with this indefinite extension,
petitioner paid the license fees for the extension of the license for the next two-year period.[21]
Consequently, we find that petitioner was the holder of a valid firearm license for the .45 caliber Colt
pistol seized in the bedroom of his house on June 15, 1996.[22] As required, petitioner presented the license to
the head of the raiding team, Police Senior Inspector Jerito A. Adique of the Criminal Investigation Division
Group, PNP.[23] As a senior police officer, Senior Inspector Adique could easily determine the genuineness
and authenticity of the computerized printed license presented. He must know the computerized license
printed form. The stamp is clearly visible. He could decipher the words and the signature of the authorized
signing official of the Firearms and Explosives Division, PNP. He belonged to the same national police
organization.
Nevertheless, Senior Insp. Adique rejected the license presented because, according to him, it was
expired. However, assuming that the license presented was expired during the period January 1995 to
January 1997, still, possession of the firearm in question, a .45 caliber Colt pistol with serial No. 70G23792,
during that period was not illegal. The firearm was kept at home, not carried outside residence. On June 15,
1996, at the time of the seizure of the firearm in question, possession of firearm with an expired license
was not considered unlawful, provided that the license had not been cancelled or revoked. Republic Act No.
8294, providing that possession of a firearm with an expired license was unlawful took effect only on July 7,
1997.[24] It could not be given retroactive effect.[25]
According to firearm licensing regulations, the renewal of a firearm license was automatically applied
for upon payment of the license fees for the renewal period. The expired license was not cancelled or revoked.
It served as temporary authority to possess the firearm until the renewed license was issued. Meantime, the
applicant may keep the gun at home pending renewal of the firearm license and issuance of a printed
computerized license. He was not obliged to surrender the weapon. Printed at the dorsal side of the
computerized license is a notice reading:
IMPORTANT
1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by
proper authority.
2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this
license. Under any of the following instances, your license shall be revoked for which
reason your firearm/s is/are subject to confiscation and its/their forfeiture in favor of the
government.
a. Failure to notify the Chief of PNP in writing of your change of address, and/or qualification.
b. Failure to renew this license by paying annual license, fees, within six (6) months from
your birth month. Renewal of your license can be made within your birth month or
month preceding your birth month. Late renewal shall be penalized with 50% surcharge for
the first month (from the first day to the last day of this month) followed by an additional 25%
surcharge for all of the succeeding five (5) months compounded monthly.
c. Loss of firearm/s through negligence.
d. Carrying of firearm/s outside of residence without appropriate permit and/or carrying firearm/s
in prohibited places.
e. Conviction by competent court for a crime involving moral turpitude or for any offense where
the penalty carries an imprisonment of more than six (6) months or fine of at least P1,000.00.
f. Dismissal for cause from the service.
g. Failure to sign license, or sign ID picture or affix right thumbmark.
3. Unauthorized loan of firearm/s to another person is punishable by permanent disqualification
and forfeiture of the firearm in favor of the government.
4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest
PNP Unit. For those within Metro Manila, surrender should be made with FEO, Camp
Crame.
5. When firearms become permanently unserviceable, they should be deposited with the nearest
PNP Unit and ownership should be relinquished in writing so that firearms may be disposed
of in accordance with law.
6. Application for the purchase of ammunition should be made in case of a resident of Metro
Manila direct to the Chief, FEO and for residents of a Province to secure recommendation
letter to the nearest PNP Provincial Command who will thereafter endorse same to CHIEF,
FEO for issuance of the permit. License must be presented before an authority to purchase
ammo could be obtained.[26]
Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of the
firearm license for the next two years upon expiration of the license in January 1995, as evidenced by official
receipt No. 7615186, dated January 17, 1995.[27] The license would be renewed, as it was, because petitioner
still possessed the required qualifications.Meantime, the validity of the license was extended until the renewed
computerized license was printed. In fact, a renewed license was issued on January 17, 1997, for the
succeeding two-year period.[28]
Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995, the Chief,
Philippine National Police issued to him a permit to carry firearm outside residence valid until January 25,
1996, for the firearm in question.[29] The Chief, Philippine National Police would not issue a permit to carry
firearm outside residence unless petitioner had a valid and subsisting firearm license. Although the permit to
carry firearm outside residence was valid for only one year, and expired on January 25, 1996, such permit is
proof that the regular firearm license was renewed and subsisting within the two-year term up to January 1997.
A Permit to Carry Firearm Outside Residence presupposes that the party to whom it is issued is duly licensed
to possess the firearm in question.[30] Unquestionably, on January 17, 1997, the Chief, Firearms and
Explosives Division, PNP renewed petitioners license for the .45 cal. Colt pistol in question.[31]
Clearly then, petitioner had a valid firearm license during the interregnum between January 17, 1995, to
the issuance of his renewed license on January 17, 1997.
Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept with
alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque,[32] Chief, Records Branch,
Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan is
a licensed/registered holder of Pistol, Colt caliber .45 with serial number 70G23792, covered by computerized
license issued dated June 15, 1995, with an expiry date January 1997.[33] Reinforcing the aforementioned
certification, petitioner submitted another certification dated August 27, 1999, stating that Vicente N. del
Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued firearm license No. RL-C1614021915, for
caliber .45 Pistol with Serial Number 70G23792, for the years covering the period from July 13, 1993 to
January 1995, and the extension appearing at the back thereof for the years 1995 to 1997.[34] Had the lower
courts given full probative value to these official issuances, petitioner would have been correctly acquitted,
thus sparing this Court of valuable time and effort.
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 accused who owned or
possessed it does not have the license or permit to possess the same.[35] 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.[36] 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.[37] 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 Explosives Unit that the accused
has no license or permit to possess the subject firearm or explosive. x x x 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. [38] 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.[39] To support a conviction, however, there must be possession coupled with intent to possess
(animus possidendi) the firearm.[40]
In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigue, the
trial court relied on the presumption of regularity in the performance of official duties by the police
officers.[41] This is a flagrant error because his testimony is directly contradictory to the official records of the
Firearms and Explosives Division, PNP, which must prevail. Morever, the presumption of regularity can not
prevail over the Constitutional presumption of innocence.[42] Right from the start, P/Sr. Insp. Jerito A. Adigue
was aware that petitioner possessed a valid license for the caliber .45 Colt pistol in question. Despite this fact,
P/Sr. Insp. Adigue proceeded to detain petitioner and charged him with illegal possession of firearms. We
quote pertinent portions of the testimony of petitioner:
Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and the alleged
cal. .22 found in a drawer in your kitchen?
A: He told me that since my firearm is licensed, he will return my firearm, give him ten thousand
pesos (P10,000.00) and for me to tell who among the people in our barangay have unlicensed
firearm, sir.
Q: How did he say about the ten thousand pesos?
A: He said palit kalabaw na lang tayo sir.
Q: And what did you answer him?
A: I told him my firearm is licensed and I do not have money, if I have, I will not give him, sir, because he
was just trying to squeeze something from me.
Q: How about the unlicensed firearms in your barangay which he asked from you?
A: I said I do not know any unlicensed firearm in our barangay, sir.
Q: About the .22 cal. pistol, what was your answer to him?
A: I told him that it was not mine, they planted it, sir.
Q: What did he say next?
A: He said that it is your word against mine, the Court will believe me because I am a police officer, sir.
Q: What was your comment to what he said?
A: I said my firearm is licensed and we have Courts of law who do not conform with officials like you and
then he laughed and laughed, sir.[43]
The trial court was obviously misguided when it held that it is a matter of judicial notice that a caliber .45
firearm can not be licensed to a private individual.[44] This ruling has no basis either in law or in
jurisprudence.[45]
Second issue. The seizure of items not mentioned in the search warrant was illegal.
With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team found in a
drawer at the kitchen of petitioners house, suffice it to say that the firearm was not mentioned in the search
warrant applied for and issued for the search of petitioners house. Section 2, Article III of the Constitution lays
down the general rule that a search and seizure must be carried out through or on the strength of a judicial
warrant, absent which such search and seizure becomes unreasonable within the meaning of said
constitutional provision.[46] Supporting jurisprudence thus outlined the following requisites for a search warrants
validity, the absence of even one will cause its downright nullification: (1) it must be issued upon probable
cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other
person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the
complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly
describe the place to be searched and persons or things to be seized.[47] Seizure is limited to those items
particularly described in a valid search warrant. Searching officers are without discretion regarding what
articles they shall seize.[48] Evidence seized on the occasion of such an unreasonable search and seizure is
tainted and excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law,
it shall be inadmissible in evidence for any purpose in any proceeding.[49]
In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a
meticulous search in the kitchen of petitioners house. This firearm, to emphasize, was not mentioned in the
search warrant. Hence, the seizure was illegal.[50] The seizure without the requisite search warrant was in plain
violation of the law and the Constitution.[51]True that as an exception, the police may seize without warrant
illegally possessed firearm or any contraband for that matter, inadvertently found in plain view. However, [t]he
seizure of evidence in plain view applies only where the police officer is not searching for evidence against the
accused, but inadvertently comes across an incriminating object.[52] Specifically, seizure of evidence in plain
view is justified when there is:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be where they
are;
(c) the evidence must be immediately apparent, and
(d) plain view justified mere seizure of evidence without further search.[53]
Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The prosecution
was not able to prove that the firearm was in the effective possession or control of the petitioner without a
license. In illegal possession of firearms, the possessor must know of the existence of the subject firearm in
his possession or control. In People v. de Gracia,[54] we clarified the meaning of possession for the purpose of
convicting a person under P. D. No. 1866, thus: x x x 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. x x x x Hence, the kind of possession punishable under P. D.
No. 1866 is one where the accused possessed a firearm either physically or constructively with animus
possidendi or intention to possess the same.[55] That is the meaning of animus possidendi. In the absence
of animus possidendi,the possessor of a firearm incurs no criminal liability.
The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioners
daughter. The seizure was invalid and the seized items were inadmissible in evidence. As explained in People
v. Doria,[56] the plain view doctrine applies when the following requisites concur: (1) the law enforcement officer
is in a position where he has a clear view of a particular area or has prior justification for an intrusion; (2) said
officer inadvertently comes across (or sees in plain view) a piece of incriminating evidence; and (3) it is
immediately apparent to such officer that the item he sees may be evidence of a crime or a contraband or is
otherwise subject to seizure.
With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom
of petitioners daughter, there was absolutely no reason for the seizure. The radios were not contraband per
se. The National Telecommunications Commission may license two-way radios at its discretion.[57] The burden
is on the prosecution to show that the two-way radios were not licensed. The National Telecommunication
Commission is the sole agency authorized to seize unlicensed two-way radios. More importantly, admittedly,
the two-way radios were not mentioned in the search warrant. We condemn the seizure as illegal and a plain
violation of a citizens right. Worse, the petitioner was not charged with illegal possession of the two-way radios.
Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of such
radios is not even included in the charge of illegal possession of firearms (violation of P. D. No. 1866, as
amended) alleged in the Information.
WHEREFORE, the Court hereby REVERSES the decision of the Court of Appeals in CA-G. R. CR No.
22255, promulgated on July 09, 1999.
The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P. D. No.
1866, as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in Criminal Case No.
800-M-96, Regional Trial Court, Bulacan, Branch 20, Malolos.
Costs de oficio.
The Chief, Firearms and Explosives Division, PNP shall return to petitioner his caliber .45 Colt pistol,
with Serial Number No. 70G23792, the five (5) extra magazines and twenty seven (27) rounds of live
ammunition, and the two 2-way radios confiscated from him. The Chief, Philippine National Police, or his duly
authorized representative shall show to this Court proof of compliance herewith within fifteen (15) days from
notice. The .22 caliber revolver with Serial No. 48673, and eight (8) live ammunition and the magazine for 5.56
mm. caliber Armalite rifle are confiscated in favor of the government.
SO ORDERED.
[G.R. No. 128618. November 16, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. 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
Decision[1] 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 Informations [2] 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 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 Order[6] 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 general[8] 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).
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.
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]
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 veracity[17] 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.
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]
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]
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]
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]
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. Navarro[25] 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 onJanuary 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. Villanueva[26] 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.)
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]
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.
xxxxxxxxx
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.
xxxxxxxxx
''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.
xxxxxxxxx
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]
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. Barros[30] 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 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 homicide[33] 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 HOMICIDEwith 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.
G.R. No. 132878 September 29, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO GUTIERREZ, accused-appellant.
RESOLUTION
KAPUNAN, J.:
In this petition under Rule 45 of the Rules of Court petitioner prays that the Decision of the Court of Appeals,
dated 27 August 1997, which affirmed petitioner's conviction for illegal possession of firearms and ammunition,
be modified with regard to the penalties imposed on him.
An information for violation of P.D. No. 1866 (Illegal Possession of Firearms and Ammunitions) was filed
against petitioner before the Regional Trial Court, Branch 04, of Balanga, Bataan. 1 After trial, the court found
petitioner guilty beyond reasonable doubt of illegal possession of a U.S. Carbine, M1, Caliber .30 with Serial
No. 1713979 and sentenced him to an indeterminate penalty of seventeen (17) years, four (4) months and one
(1) day of reclusion temporal, as minimum, to twenty (20) years of reclusion temporal, as maximum. 2
Petitioner appealed the judgment of conviction with the Court of Appeals. While the case was pending with the
Court of Appeals, R.A. No. 8294, an act which amended P.D. 1986, was passed. Thereafter, the Court of
Appeals affirmed the decision of the trial court but reduced the penalty imposed in view of R.A. No. 8294. We
quote hereunder the dispositive portion of the decision of the Court of Appeals:
Pursuant to the second paragraph of Section 1 of R.A. 8294, the accused is found
guilty beyond reasonable doubt of illegal possession of firearm, a U.S. Carbine, M1,
Cal. .30 with Serial No. 1713979, under the classification and other firearms with firing
capability of full automatic and by burst of two to three. The accused is sentenced to
suffer the indeterminate imprisonment of four (4) years, two (2) months and one (1) day
of prision correctional, as minimum, to six (6) years and one (1) day of prision mayor,
as maximum, and a fine of thirty thousand (P30,000.00).
WHEREFORE, foregoing considered, the appealed decision is hereby AFFIRMED with
modification as stated above.
SO ORDERED. 3
Petitioner filed a motion for reconsideration of the decision of the Court of Appeals. This was denied by the
Court of Appeals in its Resolution dated 5 March 1998 for lack of merit.
Petitioner now contends that the Court of Appeals erred in not classifying the subject firearm as low-powered
and accordingly imposing upon him the penalty of four (4) years, two (2) months and one (1) day to six (6)
years which is the maximum imposable penalty for low-powered firearms under R.A. No. 8294. He submits for
resolution the sole issue of whether or not the respondent Court of Appeals acted correctly in imposing upon
him a penalty of imprisonment of four (4) years, two (2) months and one (1) day of prision correccional to six
(6) years and one (1) day of prision mayor when the applicable law, R.A. No. 8294, merely fixes the penalty of
four (4) years, two (2) months and one (1) day to six (6) years, considering that the firearm involved in this
case is classified by R.A. 8294 and the Firearms and Explosives Unit of the Philippine National Police as a
low-powered firearm. 4
We find the petition devoid of merit.
We quote with approval the explanation of the Solicitor General as to why the subject firearm, the U.S.
Carbine M1, Caliber .30, is considered a high powered firearm, to wit:
A U.S. carbine M1, .30 caliber is considered a high powered firearm because it has an
effective range about 300 yards, sufficient for close in defense. (p. 863, Encyclopedia
Britannica, Volume 4). It is a gas-operated firearm which has a full or semi-automatic
capability through the use of an optional selector. (p. 47, Encyclopedia Americana, U.S.
Constitution Bicentennial Commemorative Edition). A gas operated firearm has a small
hole or gas port on the underside of the barrel near the muzzle which permits the part
of the propellent gases to escape into a cylinder holding the piston that is connected to
the bolt. As the gas pressure forces back the piston and the bolt, the empty cartridge
case is ejected and the hammer is cocked. A spring then will force the bolt forward. As
it moves forward, the bolt will strip the top cartridge from the magazine and will seat it
in the chamber ready to fire. Gas pressure thus performs automatically the reloading
task formerly done by hand. For this reason, weapons of this type are often called self-
loading or autoloading. (p. 673, Encyclopedia Britannica, small arms). 5
As aptly explained by the Office of the Solicitor General, the subject firearm is capable of emitting two (2) or
three (3) bullets in one squeeze of a trigger and, as such, has a firing capability of full automatic and burst of
two or three which under R.A. No. 8294 is considered a high-powered firearm, the illegal possession of which
is punishable by prision mayor in its minimum period.
The certification issued by the Firearms and Explosives Division of the Philippine National Police is not binding
on us. While the certification states that the U.S. Carbine M1, Caliber .30 is under the category of low-powered
firearm, the same does not even satisfactorily explain the basis for such a conclusion. Thus, a mere general
statement that the subject firearm is low-powered without more is not sufficient to consider the same as truly
low-powered. Besides, the certification does not even state that the person issuing it is an expert and
knowledgeable on such matter. Finally, as pointed out by the Office of the Solicitor General, it is too late in the
day for petitioner to present such evidence. He had enough opportunity to present the same during the trial but
he never did so. It was only when the case was decided against him that he secured this
certification.1âwphi1.nêt
WHEREFORE, the petition is denied.
SO ORDERED.
[G.R. No. 115835-36. July 22, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VERIATO MOLINA, RUBEN MOLINA, GREGORIO
GAJAS, CASIMIRO (a.k.a. Quintin) CASTILLO, JESUS ARIOLA, JOHN DOE, RICHARD DOE,
MICHAEL DOE AND MARK DOE, accused.
VERIATO MOLINA and RUBEN MOLINA, accused-appellants.
DECISION
PANGANIBAN, J.:
While affirming the conviction of accused-appellants for the murder of the late Mayor Bonifacio Uy, the
Court applies in their favor Republic Act No. 8294,[1] which amended PD No. 1866. Under the new law, the use
of an unlicensed weapon in the commission of homicide or murder is considered simply as an aggravating
circumstance and no longer a separate offense. Thus, said law effectively modified our ruling in People vs.
Quijada,[2] in which we held that the use of an unlicensed firearm in a killing results in two separate crimes --
one, for the aggravated form of illegal possession of firearm and, two, for homicide or murder.
The Case
A shooting incident, reportedly between two political factions, resulted in the death of a town mayor,
a Sangguniang Bayan member and two others; and the wounding of at least six other persons. This was the
subject of the two Informations filed by Senior State Prosecutor Nilo C. Mariano before the Regional Trial
Court of Ilagan, Isabela, against Veriato Molina, Ruben Molina, Gregorio Gajas, Casimiro Castillo, Jesus
Ariola and four Does.
The first Information,[3] dated January 31, 1990, charged the above accused with multiple murder and
multiple frustrated murder[4] allegedly committed as follows:
That on or about the evening of August 14, 1989, at Barangay San Antonio, Municipality of Ilagan, Province of
Isabela, a place within the jurisdiction of this Honorable Court, aforenamed persons, conspiring, confederating
and mutually helping one another, wilfully, unlawfully and feloniously, with intent to kill, treachery, abuse of
superiority, and with the aid of armed men, and of nocturnity, did then and there assault and shoot Mayor
Bonifacio Uy, Municipal Councilor (Sangguniang Bayan Member) Antonio Manaligod, Jaime Vargas, and
Policarpio Estrada, with a cal. 38 revolver, cal. 30 garand rifle, and armalite rifles (M-14s and M-16s), thus
inflicting gunshot wounds on vital parts of their heads and bodies, back and front, which caused their deaths
as a consequence, and the serious wounding of MANUEL MARIANO, ANDRES FIGAROLA, MOISES DE LA
CRUZ and WILMA ACIERTO, on the vital parts of their bodies, which ordinarily would cause their deaths, thus
performing all the acts of execution which should have produced the crime of [m]ultiple [m]urder as a
consequence thereof, but which, nevertheless, did not produce it by reason of causes independent of their will,
that is, by the timely medical care rendered to Manuel Mariano, Andres Figarola, Moises de la Cruz, and
Wilma Acierto, which prevented their deaths. In the case of Mayor Bonifacio Uy, even when dead or in the
throes of death, he was still stabbed with a bladed weapon by said group, sustaining stab wounds at his back
and abdomen resulting in the evisceration of the intestines[;] said acts were no longer necessary but were
manifestations of cruelty and/or outraging or scoffing at his person or corpse.
The other Information,[5] bearing the same date, charged the same accused with illegal possession and
carrying of firearms and ammunitions outside their respective residences,[6] as narrated below:
That on or about the evening of August 14, 1989, at Barangay San Antonio, Municipality of Ilagan, Province of
Isabela, and within the jurisdiction of this Honorable Court, aforenamed persons, conspiring, and
confederating with one another, had in their respective possessions the following firearms, to wit: Veriato
Molina - an M-14 armalite rifle; Ruben Molina - a cal. 38 revolver; Gregorio Gajas, Casimiro Castillo and Jesus
Ariola - M-16 armalite rifles; and John Doe, Richard Doe, Michael Doe, and Mark Doe - M-16 armalite rifles
and a cal. 30 garand rifle, which were loaded with their corresponding ammunitions, without the necessary
license and/or authority to possess and carry the said firearms and ammunitions outside their residence
issued by the corresponding government authorities, and which they used in the shooting and killing of Mayor
Bonifacio Uy, Municipal Councilor (Sanggunian Member) Antonio Manaligod, Jaime Vargas, and Policarpio
Estrada, and the serious wounding of Manuel Mariano, Andres Figarola, Moises de la Cruz, and Wilma Acierto
with intent to kill, treachery, abuse of superiority and with the aid of armed men and of nocturnity.
Subsequently, the widows of the deceased victims filed with this Court a petition for transfer of
venue.[7] They feared that the accused, who were political leaders of the provincial governor, would use such
connection to influence the trial of the case. Said petition was favorably granted.[8] The Regional Trial Court of
Pasay City, Branch 108, was assigned to continue with the joint trial of the cases. In a Decision[9] promulgated
on June 3, 1994, the charges were disposed by the court a quo as follows:[10]
WHEREFORE, considering all the foregoing, judgment is hereby rendered as follows:
A. FOR CRIMINAL LIABILITY
1. Acquitting accused Gregorio Gajas, Casimiro (a.k.a. Quintin) Castillo, and Jesus Ariola for failure of the
prosecution to prove the case against them beyond reasonable doubt, in both cases.
2. In Criminal Case No. 1287 for [m]ultiple [m]urder and [f]rustrated [m]urder, finding accused Ruben Molina
and Veriato Molina guilty beyond reasonable doubt of [m]ultiple [m]urder for the death of the following: Mayor
Bonifacio Uy, Councilor Antonio Manaligod, Civilian Security Officer Policarpio Estrada and Civilian Security
Officer Jaime Vargas, and [f]rustrated [m]urder for the serious wounding of Andres Figarola, and sentencing
them each to four (4) [r]eclusion [p]erpetua for the death of the four victims; [f]or [f]rustrated [m]urder
committed on Andres Figarola, the two accused are sentenced to serve imprisonment of SIX (6) YEARS, ONE
(1) MONTH and ELEVEN (11) DAYS to EIGHT (8) YEARS and TWENTY (20) DAYS of [p]rision [m]ayor.
3. In Criminal Case No. 1288 for [i]llegal [p]ossession of [f]irearm and [a]mmunition, this crime not having been
absorbed by the earlier offense considering that illegal possession is covered by a special law while murder is
a crime under the Revised Penal Code, Ruben Molina and Veriato Molina are both found guilty beyond
reasonable doubt and sentenced to suffer a straight penalty of SEVENTEEN (17) YEARS, FOUR (4)
MONTHS AND ONE (1) DAY of reclusion temporal.
4. There being four (4) perpetual penalties to be served by Ruben Molina and Veriato Molina, the maximum
simultaneous service of sentence of each accused shall in no case exceed forty (40) years. (Article 70, RPC
as amended by CA 217, threefold rule.)
5. The preventive imprisonment at Pasay City Jail [of] the two accused Ruben Molina and Veriato Molina shall
be deductible.
B. FOR THE CIVIL LIABILITY
The death of the victims having been established beyond doubt as the result of the shooting, a wrongful act of
the accused who conspired, all the widows are entitled to damages for the death of their respective husbands.
For MERCEDES QUA UY
She is entitled to receive P50,000.00 as indemnity for the death of her husband, Mayor Bonifacio Uy. She is
likewise entitled to moral damages as his death was established beyond doubt as the result of shooting by the
accused. The moral damages covers wounded feelings, mental anguish, moral shock which are the proximate
result of the wrongful act or omission of accused (Art. 2217, Civil Code) and moral damages is assessed in the
amount of P1,000,000.00, considering the [m]ayors rank and the high regard the community has for him.
For COUNCILOR ANTONIO MANALIGOD, his widow or his heir is entitled to receive the amount
of P50,000.00 as indemnity for the death of the councilor, and P500,000.00 as moral damages.
For Mrs. ANGELITA ESTRADA and Mrs. SALVACION VARGAS, widows of the two civilian security agents of
Mayor Bonifacio Uy, the amount of P50,000.00 each for the death of their respective husbands. Each of the
widows is also entitled to receive as moral damages from the accused the amount of P250,000.00.
All the widows/heirs are also entitled to P15,000.00 each as funeral expenses, all of the victims having been
buried in Isabela.
For ANDRES FIGAROLA
Both accused, Ruben Molina and Veriato Molina shall solidarily be liable to Andres Figarola in the amount
of P50,000.00 moral damages and P50,000.00 exemplary damages.
Both accused to pay costs of suit.
The two accused, Ruben Molina and Veriato Molina, were charged with [m]ultiple [m]urder which are capital
offenses. They were allowed to bail out after the prosecution submitted the motion to bail with no sufficient
evidence yet proving that their guilt [was] strong, such that this Court ruled in favor of accuseds temporary
liberty conditioned on the posting of a bond in the amount of P150,000.00 each, in cash. Now that a conviction
has been rendered finding them both guilty beyond reasonable doubt of the charge of [m]ultiple [m]urder, they
are no longer entitled to bail as a matter of right.
The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the
1985 Rules on Criminal Procedure, as amended, which provides:
Sec. 3. Bail, a matter of right; exception. -- All persons in custody shall before final conviction, be entitled to
bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the
time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when the
evidence of guilt is strong.
Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense
punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the
case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is
strong.
Accused Belarmino Divina was convicted by the Regional Trial Court of the crime of murder which is an
offense punishable by reclusion perpetua. Pursuant to SC Administrative Circular No. 2-92, he is no longer
entitled to bail even if he appeals to us since his conviction clearly imports that the evidence of his guilt is
strong. (People vs. Divina, SCRA 221, p. 223, April 7, 1993.)
The Jail Warden, Pasay City Jail, is now directed to detain the two and to deliver them to the Bureau of
Correction immediately with escorts.
The Facts
Version of the Prosecution
Evidence for the prosecution consists of testimonies of seventeen witnesses and nearly forty principal
exhibits. Part of the trial courts summary of the facts reads:
ROLANDO DREZA testified that as one of the civilian security officers of the deceased/victim Mayor Bonifacio
Uy, he reported for work on August 14, 1989 at 7:00 in the morning. He was in the office when the Mayor
received an invitation to administer the oath of the new officers of the Parents-Teachers Association at the
Agro Industrial School in Barangay San Antonio, Ilagan, Isabela. The [m]ayor consented and left the office at
11:00 oclock a.m. with Councilor Antonio Manaligod, DILG Officer Potenciano Tabije and four (4) civilian
security men -- Policarpio Estrada, Rolando Dreza, Rodolfo Bunagan and Jaime Vargas. They had lunch upon
arrival at the school. Later, at 3:00 oclock p.m., the program started right in front of the school and this lasted
[until] 5:00 oclock p.m., followed by some socializing and food and drink session, singing and guitar
playing. They ended at about 10:30 oclock p.m.Barangay Captain Veriato Molina invited the Mayor to a funeral
wake in the house of Ventura Hernandez, about 200 meters from the school. Mayor Uy obliged, and with
Councilor Manaligod, Mr. Tabije, Barangay Capt. Molina and other officials of the PTA, followed by the Mayors
civilian security men, proceeded to the wake, walking. Their vehicle, the NISSAN 4 x 4, was attended to by
Bunagan.
When the [m]ayor and Barangay Captain Veriato Molina arrived, Ruben Molina (another accused and uncle of
Veriato) was already there. He and the [m]ayor greeted each other before the [m]ayor entered the house
where the body of the girl was lying in state. When he came out, he (the [m]ayor) joined Ruben Molina. The
two conversed[;] Dreza heard Ruben Molinas remark: Pare, ang saya-saya ninyo sa eskwelahan, and the
[m]ayors answer, Ikaw kasi, wala ka roon. Dreza also heard Wala na bang natira from Ruben (which Dreza
assumed refer[red] to the drinks). To this the [m]ayor replied, If you want, lets buy some more (in Tagalog) but
Ruben assured he [would] take care, requested Veriato to buy. Veriato left and returned 30-40 minutes later,
with bottles. Veriato was seen whispering to Ruben before leaving the place.
Ruben opened the bottle, took one shot, followed by the [m]ayor who also took one shot. The conversation
grew heated, but Dreza opined it was because they (Ruben and the [m]ayor) had a previous standing grudge
against each other.
The further questions and answers, in the direct examination conducted by Private Prosecutor Mario Ongkiko
on [W]itness Rolando Dreza on January 8, 1992, follows:
Atty. Ongkiko:
Q And when the conversation became heated will you describe to the Honorable Court the
events that eventually followed?
A I heard Ruben Molina uttered to Mayor Uy, in Ilocano, Ukinam (Putang Ina mo).
Q And what was the reaction of Mayor Uy?
A Mayor Uy reacted immediately and he threw a kick at Ruben Molina.
Q And do you know if Ruben Molina was hit?
A I did not know if he was hit or not.
Q And what happened after Mayor Uy threw a kick at Ruben Molina?
A When I saw that, I brought the [m]ayor away from Ruben Molina.
Q And what happened next?
A When I was leading Mayor Uy away from Ruben Molina, that was the time when I saw Bgy.
Captain Veriato Molina approached [sic] with a gun (baril).
Q My question is, do you know what kind of gun Bgy. Captain Molina was carrying?
A Yes, sir.
Q What was it? A Yes, sir, short magazine.

A It was an M-14 folded, sir. Q And how long is the big magazine?

Q And what happened when Bgy. Capt. Molina approached with a folded M-14, did he utter any A The usual is a 20-round magazine, sir.
word or words?
Q And at the time that you saw the accused Veriato Molina, holding this type of firearm, do you
A What I heard was, Bgy. Capt. Molina uttered, Papatayin ko kayo. recall the color of the firearm he was carrying at that time?

Q Was this in Tagalog or in Ilocano? A It was camouflage green.

A It was in Tagalog. (TSN, January 8, 1992, pp. 47-48.)

Q And after you heard Bgy. Capt. Molina uttered those words, what happened? The above testimony was substantially corroborated by two other prosecution witnesses, Rodolfo
Bunagan[11] and Andres Figarola.[12] The latter -- whose left legwas wounded during the assault and later
A Tumakbo po ako. amputated -- added that, upon realizing he had been shot, he took off his belt and tied it around his wounded
leg. We quote this relevant portion of his testimony:
xxxxxxxxx
Q. After you tied the turniquet [sic] what happened next?
Q And did you hear anything while you were running?
A. After I tied the turniquet [sic] I looked around [and] the shooting has [sic] stopped. That was
A That was when I heard many shots. when I saw Veriato Molina approached [sic] Mayor Uy with a long firearm.
Q Do you know or did you see anyone firing any of those shots? Q. Was there any exchange of words between Mayor Uy and Veriato Molina?
A I only saw Bgy. Capt. Veriato Molina firing shots. A. When Mayor Uy saw Veriato Molina approaching, Mayor Uy uttered three (3) times in Ilocano
Madi kon which means in Tagalog Ayoko na.
(TSN, Jan. 8, 1992, pp. 35 to 36)
Q. And what was the reply of Veriato Molina, if any?
Atty. Ongkiko:
A. Gurgurik ti bagim which means in Tagalog Dudurugin ko ang katawan mo.
Q And do you recall what happened after you heard shots?
Atty. Ongkiko:
A After I heard the gun fire, I saw Mayor Uy clutching a post already weak (mahinang-mahina
na), and I concluded that he was hit. Q. And what happened next after Veriato Molina uttered th[ese] words?
(TSN, p. 37, Jan. 8, 1992) A. Then I heard that Veriato Molina shot him with an automatic rifle in 2 burst[s].
Atty. Ongkiko: Q. What did you do when you heard th[ese] 2 burst[s] of gun fire?
Q And when you saw the [m]ayor in a reclining position, his feet moving, what else did you see A. I immediately hid my face because I was afraid that I [might] be involved again.
or notice?
Q. And after th[ese] 2 burst[s], what else transpired if any?
A Then I saw Bgy. Capt. Veriato Molina returned [sic] and again open fire at the [m]ayor.
A. Afterwards, I saw and I heard Ruben Molina address Veriato Molina in Ilocano Siguradom
Q Do you know what weapon did Bgy. Capt. Molina use this time? nga patay [isuna sakbay mo nga] panawan which means in [T]agalog Bago mo iwanan,
siguraduhin mong patay.[13]
A He was using the same M-14 folded.
The prosecution evidence is further narrated by the trial court as follows:
Clarified by Fiscal Vibandor when he asked additional direct examination:

Fiscal Vibandor: After failure of NBI CAVRO to do its job, the head of the NBI Manila team, Agent Pedro Rivera brought his
NCR team members: Agent Ruel Lasala, Agent Villacarte, an NBI photographer, an NBI driver and [A]gent
Q Mr. Witness, you said that you saw accused Veriato Molina holding a firearm, and it was an Samuel Gumba to Isabela on August 28, 1989. In the morning of August 29, 1989, they went to the PC
M-14 firearm? Headquarters to request for assistance in the investigation. Col. Clyde Fernandez assigned one
Lt. Borromeo to assist the NBI Manila team x x x. The team submitted its report consisting of 11 pages (Exhs.
A Yes, sir. O to O-10) with annexes (Exhs. O-11 and O-12) to Regional Director Atty. Salvador Ranin.
Q Why do you know that the accused was holding an M-14 firearm?
NBI Ilagan received the recovered empty shells. Turned over to NBI Manila, the same were given to Ballistics
A Because I used to be with the [m]ilitary[;] that is why I know this type of firearm. for examination, with request (Exh. P).
Q And will you describe before this Court how long that firearm [was] which the accused was
carrying at that time? Agent Pedro Rivera made it clear before the Court during the trial that they were not able to interview any one
of the suspects because when a request was coursed to the provincial commander of Isabela to turnover the
A If it is folded, it is about this long. suspect Barangay Captain Veriato Molina who was then in his custody, to NBI Manila team, the PC
Commander, Clyde Fernandez, refused.Fernandez told the NBI team they will turnover [sic] the person of
(Witness indicating a length of about 2 feet). Veriato Molina under a court Order of Arrest.[14]
Q And have you seen the magazine of this M-14 firearm?
 Other witnesses presented by the prosecution were: (1) NBI Ballistic Examiner Brandeis C.
Flores,[15] who identified his three-page Ballistic Examination Report (Exh. R); (2) PO2 Ovidio Prudencio[16] of
PNP, Calamagui 1st, Ilagan, Isabela, who assisted in the preparation of the sketch of the crime scene; (3) Pat.
Renato Galapon,[17] also of PNP Ilagan, who conducted an investigation right after the incident and prepared
the sketch indicating the positions of the fatalities and of the firearms and empty shells recovered therefrom; (4)
Daniel Cuevas,[18] a photographer requested by the police to take pictures of the crime scene; (5) Dr. Ruben
Angobung,[19] who performed an autopsy on the body of the late mayor; (6) the widows [20] of the deceased
victims (Mayor Uy, Vargas and Estrada), who all related how their families experienced shock and grief over
the brutal incident, and how they managed to survive it; (7) Councilor Manaligods son [21] who testified on the
income of his late father; and (8) Sangguniang Bayan Member Adelaida Almachar,[22] who testified on the
possible political motive behind the slay of the late mayor.
The trial court dispensed with other prosecution witnesses after both parties agreed in open court on
some admissions and stipulations.[23] These witnesses included: (1) Peter Lao, the photographer who took the
pictures (Exhs. A to D) of the deceased mayor immediately after his death; (2) Dr. Conrado Gabriel who
conducted the post mortem examinations (Exhs. H to J) on the deceased victims except Mayor Uy; and (3)
Edwin Purificando, the forensic chemist who prepared a biological report (Exh. K).
Version of the Defense
[24]
The defense initially moved for leave to file a demurrer to evidence which, however, was denied by
the trial court. It later presented a total of seventeen witnesses, including seven physicians who testified on
medical findings on the injuries sustained by appellants, four witnesses before the actual shoot-out, two
investigating officers, one alleged eyewitness, the two accused-appellants, and a government employee who
testified on the pendency of an administrative complaint for illegal possession of firearms against the late
Mayor Uy.
The facts were recounted by the defense in this manner:[25]
On August 14, 1989, after attending, as inducting officer-guest speaker, the induction of officers of the Parents
Teachers Association of Isabela which started noontime with a luncheon and ended at 5:30 p.m., followed by
a drinking session which lasted up to about 10:30 p.m., Ilagan, Isabela Mayor Bonifacio Uy, together with
[M]unicipal [C]ouncilor Antonio Manaligod, the mayors three bodyguards, namely Jaime Vargas, Policarpio
Estrada and Rolando Dreza, DILG officer Potenciano Tabije, [b]arangay [c]aptain of Centro San Antonio,
Veriato Molina and others walked to the house of Ventura Hernandez which was about 200 meters away from
the school to attend the wake of Hernandez' deceased daughter Michelle.Another bodyguard of the mayor,
Rodolfo Bunagan, drove the mayor's Nissan pick-up to the [sic] Hernandez' residence.
On reaching Hernandez' house, the mayor greeted Ruben Molina, herein accused-appellant, who was then
seated, along with others, between Hernandez' house and that of the latter's brother-in-law Jerome
Rivero. The mayor then went inside the house to view the remains of the deceased after which he went out
and joined Ruben Molina.
While outside, the mayor and Ruben Molina drank liquor in the course of which, though they started with
cordiality, they later engaged in a heated argument which arose from the mayors accusation that Rubens jeep
was the vehicle used by the killers of his (mayors) aunt and that Rubens act in the previous elections was
suspect. One Moises de la Cruz, a pastor of the Iglesia ni Cristo, tried to pacify the mayor by suggesting that
he change the topic, he (de la Cruz) having become aware that people around were apprehensive and some
had in fact started leaving.
As the mayor repeatedly accused Ruben Molina, the latter suggested that he bring the matter to court drawing
the mayor to say Ukinam, and [to] kick Ruben who fell down. Not long after, shooting occurred and when it
ended, the mayor, the councilor and two of the mayors bodyguards, namely, Policarpio Estrada and Jaime
Vargas, were dead while the following were wounded: Ruben Molina, who had [a] gunshot wound below his
left knee, and Veriato Molina, a nephew of Ruben (Ruben and Veriatos father being brothers), who had thru
and thru gunshot wound at his right thigh.
Defense Witness Moises de la Cruz, who had been physically injured during the affray, was initially one
of the private complainants in the Information for multiple murder and multiple frustrated murder, but he later
testified for the defense instead. He affirmed his sworn statement (Exh. 1) taken by the NBI during the
investigation it had conducted in its office in Ilagan. He related therein, and likewise in court, the antecedents
of the shoot-out,[26] an account which was substantially the same as the narrations of the prosecution
eyewitnesses and the appellants. He added during his cross-examination that, while seeking cover after the
initial gunfire left him wounded, he continued to hear gunshots within the wake premises and saw Barangay
Captain Veriato Molina holding a long firearm.[27]
Five other witnesses were presented by the defense, but none of them gave any direct account of how
the shooting incident unfolded and transpired. They all admitted that they had left the crime scene prior to the
shoot-out.[28]
Ruling of the Trial Court
From the evidence on record, the court a quo concluded that conspiracy definitely existed between
Appellants Ruben and Veriato Molina. All their further acts after the shooting and the circumstances that
obtained, at their instance, are clear evidence of guilt and [are the] doings of guilty minds. Moreover, the two
connived to conceal the offense instead of revealing [it], to negate rather than cooperate.[29]
The trial court further concluded that the crime committed was multiple murder and frustrated murder
qualified by treachery, abuse of superior strength and use of armed men. That the intention of accused-
appellants was to kill the mayor and his bodyguards, including the councilor, was deduced by the trial judge
from the statement reportedly made by Appellant Veriato Molina: Papatayin ko kayo. The collective
pronoun kayo was used instead of its singular form, which Veriato could have used had he meant to kill the
mayor only.
The lower court also found both accused-appellants guilty of illegal possession of firearms and
ammunitions. Evidence recovered from the crime scene included a Smith and Wesson revolver (.38 caliber),
bearing SN (Serial Number) C617376, and six spent shells which were found by the NBI to have been fired
from the aforementioned revolver. The Firearms and Explosives Unit in Camp Crame, Quezon City, certified
that said revolver had been issued to Veriato Molina of Amulung, Cagayan; and that Ruben Molina was
likewise a licensed holder of a registered revolver, Orohm Caliber .22, with SN 232904. Neither appellant,
however, had a permit to carry any firearm outside his residence.[30]
With respect to the other individuals charged together with the Molinas, the court a quo sadly noted that
none of the prosecution witnesses -- vital and corroborative -- ever mentioned as present, during that fateful
incident, the names of Accused Gregorio Gajas, Casimiro Castillo and Jesus Ariola. During the cross-
examination of Defense Witness Oscar Malana, Private Prosecutor Ongkiko attempted to establish the
participation of these three accused, but in vain.[31] Thus, their acquittal.
Upon conviction by the trial court, Veriato and his uncle Ruben, both surnamed Molina, filed through
counsel[32] their Notice of Appeal[33] direct to this Court.
Assignment of Errors
In their 57-page Brief,[34] appellants assign the following errors:
A. On the Multiple Murder and Multiple Frustrated Murder Cases
I
The trial court erred in finding that prosecution witnesses, particularly Figarola, Bunagan and Dresa [sic]
positively identified Ruben and Veriato as two of those who held guns (a caliber .38 Smith & Wesson for
Ruben and an M-14 folded for Veriato) and who shot Mayor Bonifacio Uy and others.
II
The trial court erred in finding that the long firearm which Veriato was holding was used to kill the victims.
III
Even assuming arguendo that Accused-appellant Veriato Molina fired a shot at the mayor, the trial court erred
in finding him liable for his (mayors) death and the death and [the] wounding of the others.
IV
Even assuming arguendo that Accused-appellant Veriato Molina fired at the mayor, the trial court erred in
finding that treachery attended the shooting.
V
Even assuming arguendo that Accused-appellant Veriato Molina fired at the mayor, the trial court erred in not
appreciating self-defense and/or defense of a relative to free him of any liability.
VI
Even assuming arguendo that Accused-appellant Veriato Molina committed the acts attributed to him, the trial
court erred in finding Accused-appellant Ruben Molina to have conspired in the commission thereof.
VII
The trial court erred in convicting accused-appellants of the crimes charged despite failure to prove their guilt
beyond reasonable doubt.
B. On the Illegal Possession of Firearms Case
I
The trial court erred in finding accused-appellants guilty of illegal possession of firearms.[35]
In their 45-page Supplemental Brief,[36] appellants also submit the following issues for our resolution:
I
The trial court gravely erred in rendering a decision against the accused-appellants without the cold neutrality
of a disinterested trial judge; hence, her decision is absolutely null and void for lack of basic due process.
II.
The trial court gravely erred in convicting the accused[-] appellants and in not acquitting them for lack of proof
beyond reasonable doubt.
III.
The trial court gravely erred in appreciating the qualifying circumstances of treachery, abuse of superior
strength and aid of armed men.
IV.
The trial court gravely erred in sentencing the accused-appellants for the crime of illegal possession of
firearms.
V.
The trial court gravely erred in holding the accused-appellants liable for damages to the widows of the
victims.[37]
For clarity and simplicity, the related issues raised in appellants main and supplemental briefs will be
discussed jointly. In fine, there are seven principal issues, namely:
1. Credibility of prosecution witnesses
2. Sufficiency of prosecution evidence
3. Attendance of the qualifying circumstances of treachery, abuse of superior strength, and aid
of armed men
4. Presence of self-defense
5. Presence of conspiracy
6. Sufficiency of evidence for illegal possession and carrying of firearms
7. Liability for damages
The Courts Ruling
The appeal is partly meritorious. Appellants are guilty of murder aggravated by illegal
possession/carrying of firearms, for the killing of Mayor Uy only but not of the other alleged victims.
Preliminary Issue: Alleged Lack of Due Process
Appellants, in their Supplemental Brief, bewail the alleged bias of the trial judge against them. Quite
antithetically, appellants, while seeking nullification of the assailed Decision, do not pray for a new trial. They
believe that the records are sufficient for this Court to render a valid verdict of acquittal.
However, appellants fail to substantiate their allegations of bias and prejudice against the trial
judge. The latters occasional allusion to the criminal proclivity of accused-appellants cannot by itself warrant
the nullification of her entire decision. As will be discussed in more detail below, we find that the judges
conclusions and judgment were objective and backed by sufficient evidence.
First Issue:
Credibility of Prosecution Witnesses
Appellants impugn the credibility of Prosecution Eyewitnesses Rodolfo Bunagan, Rolando Dreza and
Andres Figarola. They claim that the first two were bodyguards of the late Mayor Uy and, therefore, their
loyalty obviously remained with him. They allege that Figarolas testimony has been described by the trial court,
in its resolution of the Motion for Bail, as lack[ing] the necessary details required of an eyewitness account of
the shooting incident;[38] and yet, they continue, the judge became inconsistent and manifest of bias when, in
her final resolution of the case, she made a sudden turnabout by giving credence to the same testimony. We
are not persuaded.
 The mere fact that Witnesses Bunagan and Dreza served as security aides of the late Mayor Uy does A: It was a gun, sir.
not by itself destroy their credibility. At the time they testified in court, years had passed since the killing of the
late mayor; and the defense has not given any basis for its claim that said witnesses unwavering loyalty Q: Will you tell the Honorable Court what kind of gun was it?
remained steadfast to the extent that they lied under oath. Other than their having been bodyguards of the late
mayor, no evidence appears on record indicating that Bunagan and Dreza were also politically motivated to A: A revolver, sir.
testify against the political adversaries of their former boss.
xxxxxxxxx
As regards Witness Figarola, the fact alone that the trial court found his testimony to be insufficient to
justify a denial of appellants motion for bail, which was actually granted, does not preclude a subsequent Q: Now, when you saw Ruben Molina dr[a]w a revolver from his waist, what did you do?
conclusion that said testimony is credible when taken in conjunction with other evidence on record. As the
A: I moved backward, sir.
solicitor general[39]points out, the courts earlier finding categorically stated that Figarolas testimony -- taken for
the mere purpose of determining the weight of prosecution evidence for the purpose of bail -- by itself lacked
Q: And when you moved backward, what did you see or what did you notice?
the necessary details. There was nothing wrong, however, in appreciating the same testimony later, when it
turned out to be substantially corroborated by other credible witnesses. A: I saw Veriato Molina with an M-14 firearm, sir.
Hence, in the instant case we find no reason to disturb the well-settled rule that the trial courts Q: And when you saw Veriato Molina with an M-14, tell the Honorable Court what happened.
evaluation and assessment of the credibility of witnesses deserve high respect. Having personally heard and
observed them when they testified, the judge, vis--vis the reviewing magistrate, is in a better position to pass A: Immediately thereafter, I hear[d] shots (nagkaputukan). Some were single, some were
judgment on their trustworthiness. Thus, his or her findings and conclusions are binding upon this Court in the automatic.
absence of a clear showing of arbitrariness or palpable error.[40] As the trial judge in the present case
perceived, the prosecution witnesses testified coherently, without reservation or fear. They are reliably credible xxxxxxxxx
witnesses entitled to be believed by the Court.
Q: All right. Incidentally, when you saw Veriato Molina with an M-14, will you demonstrate to the
Court how [he was] holding it when he was approaching Mayor Uy and Ruben Molina.

(At this juncture, witness is demonstrating).

Second Issue: Sufficiency of Evidence for Multiple Murder and Frustrated Murder
ATTY. ONGKIKO:

Holding the Mayor at the level of his breast in a pointing position.

Appellants contend that the prosecutions evidence is not sufficient to override the constitutional
presumption of their innocence; neither does it prove their guilt beyond reasonable doubt. xxxxxxxxx
We carefully reviewed the testimonies of the prosecution witnesses, who were perceived to be credible, COURT:
and found that their accounts of the shooting incident corroborated one another on material points. In any
event, based on the declarations in court of both prosecution and defense eyewitnesses, there is no real Q: To what direction?
dispute on the antecedents leading to the initial burst of gunfire. As to the actual participation of appellants,
Rodolfo Bunagan related thus: A: It was pointed to Mayor Uy.

ATTY. ONGKIKO: ATTY. ONGKIKO:

Q: And what happened next when Ruben Molina was off-balanced? Q: Did you hear Veriato Molina utter any statement before you heard the shots?

A: I came near Ruben Molina to help him. When I saw Ruben Molina dr[a]w something from his A: Before the shots, I did not hear any words.
waist ...
Q: All right. And when the shooting started, what did you do?
ATTY. ONGKIKO: (butt-in)
A: I was rattled and took cover.[41]
I will follow it up.
Q: Before you went out [of] the gate, will you tell this Honorable Court whether Veriato Molina
Q: Did you see what Ruben Molina was drawing from his waist? was anywhere around?

ATTY. BLANES: (Objecting) A: I saw Veriato [go] back to the place of Mayor Uy.

It was already answered -- something. Q: What did he do?

COURT: A: Binaril po.

That is vague. We know very well that something is not identifiable. If that is an objection, Q: How many shots did Veriato Molina fire?
that is [overruled].
A: I do not know, sir. I just heard the shots.
ATTY. ONGKIKO:
Q: And to whom were the shots directed?
Q: Did you see what Ruben Molina was drawing from his waist?
A: To Mayor Uy, sir.[42]
A: Yes, sir.
Rolando Dreza substantially corroborated Bunagans account in this manner:
Q: What was it?
Q: And when the conversation became heated, will you describe to the Honorable Court the
events that eventually followed.
A: I heard Ruben Molina [utter] to Mayor Uy, in Ilocano, Ukinam (Putang Ina mo).
Q: And what was the reaction of Mayor Uy?
A: Mayor Uy reacted immediately and he threw a kick at Ruben Molina.
Q: And do you know if Ruben Molina was hit?
A: I did not know if he was hit or not.
Q: And what happened after Mayor Uy threw a kick at Ruben Molina?
A: When I saw that, I brought the Mayor away from Ruben Molina.
Q: And what happened next?
A: When I was leading Mayor Uy away from Ruben Molina, that was the time when I saw Bgy.
Capt. Veriato Molina approached [sic] with a gun (baril).
Q: My question is, do you know what kind of gun Bgy. Capt. Molina was carrying?
A: Yes, sir.
Q: What was it?
A: It was an M-14 folded, sir.
Q: And what happened when Bgy. Capt. Molina [approach] with a folded M-14, did he utter any
word or words?
A: What I heard was, Bgy. Capt. Molina uttered, Papatayin ko kayo.
Q: Was this in Tagalog or in Ilocano?
A: It was in Tagalog.
Q: And after you heard Bgy. Capt. Molina [utter] these words, what happened?
A: Tumakbo po ako.
xxxxxxxxx
Q: And did you hear anything while you were running?
A: That was when I heard many shots.
Q: Do you know or did you see anyone firing any of those shots?
A: I only saw Bgy. Capt. Veriato Molina firing shots.
Q: To whom were the shots directed?
A: I did not notice, sir, because there were a lot of people already running in panic.
Q: And do you recall what happened after you heard [the] shots?
A: After I heard the gun fire, I saw Mayor Uy clutching a post already weak (mahinang-mahina
na), and I concluded that he was hit.
xxxxxxxxx
Q: And when you saw the Mayor in a reclining position, x x x what else did you see or notice?
A: Then I saw Bgy. Capt. Veriato Molina [return] and again, open [fire] at the Mayor.
Q: Do you know what weapon did Bgy. Capt. Molina use this time?
A: He was using the same M-14 folded.[43]
So did Andres Figarola corroborate Bunagans testimony, when he testified as follows:
ATTY. ONGKIKO: Mr. Figarola, when the shooting took place involving Bonifacio Uy[,] will you
tell this Court where were you?
A: That time I was inside the furniture shop and playing [cards].
Q: How far was Mayor Bonifacio Uy from you or from your group?
A: About 7 meters distance more or less.
ATTY. ONGKIKO: And from the time of [sic] the shooting started what was Bonifacio Uy doing?
A: Mayor Uy was in the presence of Molinas group and they were in a heated discussions
[sic]. While Councilor Tony Manaligod and his companions were pacifying the group.
Q: And what happened then?
A: I saw Veriato Molina [leave] the place and when he came back he was already carrying a gun.
xxxxxxxxx
Q: And after Veriato Molina returned with a long FAS[,] what happened next?
A: He pointed his long gun to Mayor Uy and uttered Babarilin ko kayo.
Q: Was Veriato Molina speaking in Tagalog or [an]other dialect?
A: In [T]agalog, po.
Q: And what happened next?
A: After that I heard one single shot and we stood up and the table was there and then I heard
successive shots.
Q: And when you stood up from the table[,] where did you go?
A: I [had] merely taken 3 steps and I stumble[d] and after a few moments I was hit.
xxxxxxxxx
Q: After you tie[d] your turnequet [sic] what happened next?
A: After I tie[d] the turnequet I look[ed] around because the shooting ha[d] stop[ped]. That was
when I saw Veriato Molina [approach] Mayor Uy with a long firearm.
Q: Was there any exchange of words between Mayor Uy and Veriato Molina?
A: When Mayor Uy saw Veriato Molina approaching, Mayor Uy uttered three (3) times in Ilocano
Madi kon which means in Tagalog Ayoko na.
Q: And what was the reply of Veriato Molina if any?
A: Gurgurik ti bagim which means in [T]agalog Dudurugin ko ang katawan mo.
Q: And what happened next after Veriato Molina uttered [these] words?
A: Then I heard that [sic] Veriato Molina shoot him with automatic rifle in 2 burst[s].[44]
When cross-examined, Defense Witness Moises de la Cruz could not deny the fact that Appellant
Veriato Molina was armed, as shown by this part of his testimony:
Atty. Ongkiko: Is it not correct to understand, that when you were seeking cover, these shots
were coming from one direction or it [was] coming [from] all direction[s]?
A: The shots came from the place of commotion, it [was] from the place of the incident.
 Q: Did you see anyone holding any gun whether [a] long or [a] short gun during the time that you
heard the firing?
A: There was, sir.
Q: Who was the one holding the gun whether [a] [l]ong or [a] short gun during that firing?
A: It was Captain Veriato Molina, sir.
Q: Captain Veriato Molina was holding what kind of gun? Was it [a] long or [a] short gun?
A: It was a long gun.[45]
Considering the above eyewitness accounts, Appellant Veriato Molina cannot deny his felonious
deed. He was positively seen pointing an M-14 rifle at Mayor Uy and, while in that position, he was heard
spewing upon his very victim the exact words of his ill design to snuff out the life of the latter. Almost
simultaneously, he fired at the mayor. Chaos within the premises ensued, followed by successive bursts of
gunfire. Veriato himself was shot on his right leg. Yet, upon seeing the mayor still alive, though barely, Veriato
-- doubtless determined to end the mayors life -- approached and fired his automatic weapon two more times
upon his unarmed victim, despite the latters pleas of surrender.[46]
Witness Rodolfo Bunagan also saw Appellant Ruben Molina draw a revolver from
his waist after being kicked by Mayor Uy. Although he was not seen actually aiming his gun at the mayor or
anyone else in particular, he was unmistakably heard to have impelled his co-appellant to make sure that the
mayor was dead.[47]
It is a legal truism that positive and forthright declarations of prosecution witnesses are worthier of
credence than the self-serving denials of accused-appellants.[48]
The contemptible, heartless and savage conduct of both appellants verily deserves condemnation and
the full imposition of the penalty that the law provides. Not even the alleged unruly conduct of the inebriated
mayor justifies or mitigates appellants felonious acts.
Worth further noting are the actuations of Appellant Veriato immediately after the shooting
incident. According to him, after summoning somebody to get a vehicle in which he could take his injured
uncle to the hospital and, after bringing his uncle in a jeep driven by a certain Alex Tumaliwan to the Isabela
Provincial Hospital, he himself left at once and proceeded to a neighboring town -- Cauayan, Isabela, which
was another hour[49] away -- to seek medical treatment for his own injuries.[50] He then proceeded to the
provincial governor to relate what had just transpired at Barangay San Antonio, Ilagan, Isabela. Strangely
thereafter, upon learning that Mayor Uy had expired during the affray, Appellant Veriato, upon the advice of
the governor, voluntarily sought protective custody at the PNP Provincial Directors Office.[51]
If Appellant Veriato, as he claims, had no hand at all in the shooting incident, why did
he immediately and voluntarily seek protective custody from the police, simply upon learning of the mayors
death during said occasion? At that time, he was not even a suspect. Neither were there, as yet, police reports
implicating him in the affray.Why would Appellant Veriato think that his mere presence during the incident was
reason enough for him to request police protection? Furthermore, while in the custody of the PNP, he refused
to give a statement regarding the incident. His actuations were glaringly inconsistent with innocence.
Moreover, although both appellants suffered injuries during the same shooting incident, they did not file
any complaint at all in any forum against those whom they believed were responsible therefor.
Considering all the foregoing, the Court believes beyond reasonable doubt that Appellants Veriato
Molina and Ruben Molina are responsible for the killing of Bonifacio Uy.
As regards the death and the wounding of the other victims, the Court has scoured the entire records
but found no evidence to hold either of the Molinas culpable therefor. While the witnesses clearly established
the culpability of the accused-appellants for the death of Mayor Uy, they failed to do the same with regard to
the complicity of the two in the other felonies. None testified that either or both of appellants shot any of the
other victims, or that they fired their weapons indiscriminately so as to be held responsible for all the
consequences of their acts.
Rather, it is apparent that there were other people within the premises who likewise participated in the
shoot-out. But whether these unidentified persons conspired with appellants was not positively
proven. Furthermore, it appears that at least one of the late mayors security aides was armed with a revolver,
which had been used earlier by the mayor when he proposed to play Russian roulette with Appellant Ruben
Molina. It is also a fact that both appellants sustained physical injuries, bolstering the probability that there was
an exchange of gunfire between the two camps.
On reasonable doubt, both appellants are acquitted of the killing of Antonio Manaligod, Policarpio
Estrada and Jaime Vargas; and the wounding of Andres Figarola.
Third Issue: Attendance of Treachery, Abuse of Superior Strength and Aid of Armed Men
In convicting accused-appellants of multiple murder and frustrated murder, the trial court ruled that the
crimes were qualified by treachery, abuse of superior strength and use of armed men. But, as the appellants
note, the said court did not explain its basis for appreciating the last two circumstances. Indeed, the records of
the case do not contain evidence sufficient to conclude that appellants took advantage of excessive force
notoriously out of proportion to the means of defense available to the persons attacked.[52] Neither is there
enough evidence to support, beyond reasonable doubt, a finding that appellants had purposely sought and
used the aid of armed men in attacking their victim. It is a settled rule that the circumstances qualifying a killing
to murder must be proven as indubitably as the crime itself.[53]
As regards treachery, the trial court found that the attacks were sudden and unexpected to insure
accomplishment. Alevosia is present when the offenders employ means, methods or forms in the execution of
a criminal act which tend directly and specially to insure its execution without risk to themselves arising from
the defense which the offended party might make.[54] The essence of treachery is the suddenness and
unexpectedness of the attack which, done without provocation, gives the victim no opportunity to defend
himself.[55]
At first glance, the circumstances immediately preceding the shoot-out seem to negate the presence of
treachery. Quite evident in the records is the fact that the victim, Bonifacio Uy, who was drunk at the time and
in a sardonic predisposition, engaged Appellant Ruben Molina in a heated argument, accusing him of
complicity in the killing of a relative. The drunk mayor even asked for a grenade which he threatened to
detonate in the premises. When no one gave him any, he took a gun from one of his bodyguards and
proposed to Appellant Ruben that they play Russian roulette. Said appellant, still unprovoked at the time,
calmly refused. Then the victim shouted invectives at Ruben and even kicked him. All in all, the victims acts,
done in the presence of several people who knew him and Ruben, constituted provocation sufficient to make
the latters blood boil. Within hearing and seeing distance was Rubens nephew Veriato who, in all likelihood,
also heard the threats and accusations hurled at his uncle, as well as witnessed the foul deeds done to him. A
reprisal from Ruben or his nephew was, therefore, not unexpected.
However, the subsequent acts of accused-appellants were definitely treacherous. After the initial shot,
Appellant Veriato, despite seeing his helpless victim on his last legs and pleading to be spared of any more
shooting, still cold bloodedly fired his automatic rifle at the unarmed mayor. The victim was already
defenseless when Veriato attacked him the second time. Treachery may also be appreciated even when the
victim was warned of danger or initially assaulted frontally, but was attacked again after being rendered
helpless and had no means to defend himself or to retaliate.[56]
Fourth Issue:
No Self-Defense or Defense of Relative
It is quite belated for appellants to plead self-defense and defense of a relative at the present stage of
the proceedings against them. The Court has carefully examined the records and found no such allegation
advanced by accused-appellants before the lower court.
Well-settled is the rule that, in pleading self-defense, appellants necessarily admit having shot and
killed their victim. It is then incumbent upon them to prove that justifying circumstance to the satisfaction of the
court, relying on the strength of their evidence and not on the weakness of the prosecutions. The reason is
that even if prosecution evidence were weak, such could not be disbelieved after appellants had already
admitted the killing.[57]
Moreover, in alleging that the killing arose from an impulse to defend oneself or ones kin, the onus
probandi rests upon accused-appellants to prove by clear and convincing evidence the elements thereof: that
there was unlawful aggression on the part of the victim, that there was reasonable necessity for the means
employed to prevent or repel it, and that there was lack of sufficient provocation on the part of the
defendant.[58] These the appellants miserably failed to prove.
 Fifth Issue:
Conspiracy Present
As earlier discussed, we find the concerted acts of Appellants Veriato and Ruben Molina to be
indubitable indications of criminal conspiracy. Appellants agreed plan to slay Mayor Uy need not be proven to
show conspiracy. Their express agreement and decision to commit the crime need not be affirmatively proven
either.[59] Their joint action sufficiently points to a common design[60] -- to end the life of their erstwhile political
adversary.
As the witnesses positively stated in court, Appellant Veriato shot the victim with an automatic rifle. Not
satisfied with merely wounding his prey, he went closer and even verbalized his intent to kill the mayor, who
was already on the verge of death and pleading for his life. At the same time, Appellant Ruben goaded him to
make sure that the mayor perished. Rubens armed presence and verbal incitement bared his complicity.[61] No
further proof is necessary to confirm appellants criminal collusion.
Sixth Issue:
Illegal Possession of Firearms
In crimes involving illegal possession of firearms, the prosecution has the burden of proving the
elements thereof: (1) the existence of the subject firearm and (2) the fact that the accused, who owned or
possessed the firearm, did not have the corresponding license or permit to possess or carry the same outside
his residence.[62]
Both elements have been indubitably proven by the prosecution. Witnesses categorically stated that
both appellants held firearms during the incident -- Veriato, an M-14; and Ruben, a handgun. Recovered from
the scene of the crime were a revolver,[63] which was later confirmed as registered in the name of Appellant
Veriato Molina,[64] and spent shells[65] expelled from it as well as from other high-caliber weapons. Neither of
the appellants, though both registered owners of handguns, was legally authorized to carry such gun outside
his residence, according to a certification issued by the PNP Firearms and Explosives Unit. [66] Neither was
Appellant Veriato authorized to possess an M-14 rifle, the weapon he used in killing Bonifacio Uy. Obviously,
the use of an M-14 rifle was unauthorized because this weapon cannot be licensed in favor of, nor carried by,
private individuals. With these pieces of evidence, appellants should be held liable for violation of Sec. 1[67] of
PD 1866. Under our ruling in People vs. Quijada, violation of PD 1866 is an offense distinct from
murder;[68] 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 aggravatingcircumstance in murder or homicide,[69] and not as a
separate offense. The intent of Congress to treat as a single offense the 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:
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 the unlicensed firearm, SUCH
USE OF AN UNLICENSED FIREARM SHALL BE CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE.
xxxxxxxxx
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 vs. 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 vs.
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 whether 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 as only one
offense but 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.[70]
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.[71] 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.
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 vs. Tac-
an[72] and People vs. Quijada:[73]
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
(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.
Moreover, 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 RA 8294:
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.
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 Bonifacio Uy may be appreciated as an aggravating circumstance in
imposing the proper penalty for murder.
All in all, appellants may be held liable only for murder with the special aggravating circumstance of
using unlicensed firearms. Nevertheless, the death penalty cannot be imposed upon appellants, since the
killing occurred in August 1989, when the imposition of the capital penalty was still proscribed by the
Constitution.
Seventh Issue: Damages
The Court affirms the grant of indemnity and moral damages to the family of the late Mayor Bonifacio
Uy. His widow amply attested to the proximate effects of his violent death: moral shock, mental anguish and
emotional suffering experienced by her and her children.[74] However, we find the moral damages granted by
the court a quo excessive. Thus, the Court, in the exercise of its discretion, reduces the same to P200,000.
WHEREFORE, the appeal is PARTLY GRANTED. Appellants Veriato Molina and Ruben Molina are
found GUILTY of MURDER for the death of Bonifacio Uy with the special aggravating circumstance of using
unlicensed firearms, and are each sentenced to reclusion perpetua and to pay, jointly and severally, P50,000
as indemnity and P200,000 as moral damages to the heirs of Bonifacio Uy.
For the deaths of Antonio Manaligod, Policarpio Estrada and Jaime Vargas, and for the wounding of
Andres Figarola, both appellants are ACQUITTED on reasonable doubt.
SO ORDERED.
[G.R. No. 84857. January 16, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO DELA ROSA Y AVILES, ANTONIO
DELA ROSA Y AVILES, and RODOLFO QUIMSON Y NAVA (At large), accused-appellants.
DECISION
PUNO, J.:
Rodolfo dela Rosa y Aviles appeals the decision of the Regional Trial Court, First Judicial Region,
Branch 38, Lingayen, Pangasinan, convicting him of illegal possession of firearms and explosives and
imposing the penalty of reclusion perpetua.[1]
On January 27, 1987, an information for illegal possession of firearms and explosives was filed against
RODOLFO DELA ROSA y AVILES, ANTONIO DELA ROSA y AVILES, CRESENCIO REYES y DELA CRUZ
and RODOLFO QUIMSON y NAVA, to wit:
"That on or about the 9th of December 1986, in sitio (sic) Kadampat, Barangay Bolo, municipality (sic) of
Labrador, province (sic) of Pangasinan, New Republic of the Philippines and within the jurisdiction of this
Honorable Court, the abovementioned accused, conspiring, confederating and helping one another, did then
and there wilfully (sic), unlawfully and feloniously have in their possession, custody and control three (3)
homemade gauge 12 shotguns and fourteen (14) pieces of dynamite explosives, without first securing the
necessary permit/license to possess the same.
"Contrary to Presidential Decree No. 1866."[2]
All accused pleaded not guilty when arraigned on February 3, 1987. On March 12, 1987, the four
accused withdrew their plea of not guilty and substituted it with a plea of guilt. After ascertaining that the plea
of guilt was not made improvidently, the lower court imposed upon them the corresponding penalty. [3] However,
on March 19, 1987, the four (4) accused filed a motion withdrawing their plea of guilt. [4] The lower court
granted the motion in a resolution dated March 25, 1987.[5] Thereafter, trial proceeded. However, accused
Cresencio Reyes changed his mind again and pleaded guilty to a lesser offense punishable under the last
paragraph of Section 1 of Presidential Decree No. 1866. The court accepted the plea and sentenced him
accordingly. He was utilized as a witness by the prosecution. The trial proceeded against the three remaining
accused.
The prosecution established that in the morning of December 9, 1986, Rodolfo dela Rosa, Antonio dela
Rosa, Cresencio Reyes and Rodolfo Quimson, surrendered to Kagawad Valeriano Rigor of Sitio Kadampat,
Bolo, Labrador, Pangasinan claiming they want to lead a new life. They informed him that Benjamin Nano,
alias Kumander Tamang, a member of the New People's Army (NPA), was shot by one of them. The four had
with them a short shotgun (Exhibit A) and a bag containing several sticks of dynamite (Exhibit C to C-
7).[6] Kagawad Rigor offered them breakfast and afterwards went to the police station to report the presence of
four (4) surrenderees in his house. At the police station, Patrolman Gasline Fernandez recorded the report in
the police blotter. Cpl. Crispin Cancino, the station commander, brought along several policemen and
proceeded to the house of Kagawad Rigor. When the group arrived, only Kagawad Rigor and Cpl. Cancino
entered the house. The other policemen stayed outside to secure the area. Inside the house, Kagawad Rigor
introduced the surrenderees to Cpl. Cancino and showed him the short shotgun(Exhibit A) and the bag
(Exhibit C to C-7) containing several sticks of dynamite. Then, all accused, except Rodolfo Quimson, who was
left behind to guide the police in recovering the body of Kumander Tamang, were brought to the Philippine
Constabulary (PC) Headquarters in Lingayen. In Lingayen, they proceeded at the municipal building and
called on Mayor Calixto Pancho. The surrenderees had their picture taken with Mayor Pancho and Kagawad
Rigor. Afterwards, they were brought to the police headquarters, where their statements were taken by Cpl.
Arsenio Paragas and Cpl. Cipriano Castillo.[7] Meanwhile, the charred body of Benjamin Nano was recovered
by the police in Sitio Tebel Patar.[8]
The following day, Cresencio Reyes informed the police that there were firearms left buried in
Sitio Tebel Patar. Reyes pointed to the hiding place which was covered by banana leaves. When the banana
leaves were removed, the police unearthed two (2) long barreled shotguns (Exhibits B and D).[9]
On the other hand, the three accused contend they were recruited by Kumander Tamang on different
dates. Accused Rodolfo dela Rosa testified that he first saw Kumander Tamang on October 28, 1986 at a
relative's wake. Kumander Tamang asked him whether he owned a piece of land. He said he did not, for he
was only a sawali maker. Kumander Tamang then convinced him to join the New People's Army (NPA). He
told Kumander Tamang he would think it over. On November 1, 1986, Kumander Tamang went to his house
and reiterated his offer to him. Cresencio Reyes was with Kumander Tamang at that time. Reyes was carrying
a bag (Exhibit C) while Kumander Tamang had a shotgun (Exhibit A). On November 10, 1986, Kumander
Tamang went to his house and succeeded in persuading him to join the NPA.Kumander Tamang brought him
at a hideout in the mountains of Sitio Tebel Patar, Labrador, Pangasinan.
On the evening of November 14, 1986, Rodolfo dela Rosa, Kumander Tamang and Cresencio Reyes,
descended the mountains and proceeded to the house ofAntonio dela Rosa, who was Rodolfo's cousin. At
that time, Kumander Tamang was carrying a shotgun (Exhibit A) while Reyes was carrying a bag (Exhibit
C). When they arrived at said place, Kumander Tamang and Reyes entered the house and stayed inside for
ten (10) minutes. When the two came out, dela Rosa was with them.All of them headed for the mountains
afterwards. On November 20, 1986, Rodolfo dela Rosa, Kumander Tamang Cresencio Reyes and Antonio
dela Rosa went to the house of Rodolfo Quimson. Again, only Kumander Tamang and Reyes entered
Quimson's house. They stayed inside for 15 minutes. When the two came out, Quimson was with
them. Afterwards, they returned to their hideout in the mountains.[10]
On December 8, 1986, at 10:00 o'clock in the morning, Kumander Tamang called them to a
meeting. Kumander Tamang took the bag (Exhibit C) which Reyes always carries and opened it. The bag
yielded several sticks of dynamite. Kumander Tamang told them that at five o'clock in the afternoon they would
go down Sitio Kadampat and assassinate Kagawad Rigor.[11] He then instructed them on how to use the
explosives. After the meeting, they returned to their hut and rested. At two o'clock in the afternoon, they heard
a gunshot from the hut of Kumander Tamang. They rushed outside and saw Reyes holding Kumander
Tamang's shotgun. He announced that Kumander Tamang was dead. He told them it would be better to
surrender themselves to the authorities. He ordered them to gather the shotgun and the sticks of dynamite
while he set on fire Kumander Tamang's hut. At five o'clock in the afternoon, they descended the mountains
and headed towards Sitio Kadampat. At 7:00 a.m., the following day, they reached the house of Kagawad
Rigor. They saw the Kagawad sitting by himself on a bench outside his house. Only Reyes approached the
Kagawad, so as not to frighten him. The three others waited by the roadside. After five (5) minutes, Reyes
signalled the three to approach the house.Kagawad Rigor let them inside the house and offered them
breakfast. Reyes placed the shotgun and the bag on top of the dining table. Kagawad Rigor then left the
house and went to the police station.[12] He returned with several policemen. At first, the policemen pointed
their guns at the accused but Kagawad Rigor told them there was no need for they were surrendering
themselves to the authorities. Kagawad Rigor then showed the policemen the shotgun and the bag containing
the sticks of dynamite. The policemen took all the surrenderees to the Municipal Hall, except Rodolfo Quimson,
who was left behind, to lead the police to Kumander Tamang's body.At the Municipal Hall, Mayor Calixto
Pancho greeted and congratulated them for coming back to the fold of law. They had their picture taken with
Mayor Pancho and Kagawad Rigor. Afterwards, they were brought to the police headquarters. When an
investigator started to question them, they asked for a lawyer to assist them but the investigator said they
would not need one for they were surrenderees and would soon be freed. Hence, they gave their subscribed
statements to the police. After their statements were taken, the police took them back to the police station in
Labrador, where they were detained. On January 5, 1987, they were transferred to the provincial jail in
Lingayen. They denied ever seeing the two (2) long firearms (Exhibits C and D) which were recovered in Sitio
Tebel Patar. They saw said firearms for the first time when the prosecution presented them as exhibits during
the trial.[13]
When trial concluded, the lower court convicted the three (3) accused. Antonio dela Rosa did not
appeal [14] while Rodolfo Quimson escaped[15] from the National Bilibid Prisons (NBP) where he was detained
after the lower court convicted him. Only Rodolfo dela Rosa appealed contending that:
THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT RODOLFO DELA ROSA GUILTY
BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND
EXPLOSIVES, DEFINED AND PENALIZED UNDER THE PROVISIONS OF PRESIDENTIAL DECREE NO.
1866.
We find merit in the appeal.
It is undisputed that accused-appellant Rodolfo dela Rosa and his companions were the ones who
surrendered the subject firearm (Exhibit A) and explosives (Exhibit C to C-7) to Kagawad Rigor. However,
Rodolfo dela Rosa denies that he was in possession of said ammunitions in the manner punishable by
law. According to him, his real intention was merely to turn over the ammunitions, which were owned by
Kumander Tamang, to the authorities. The trial court perceived otherwise. It declared that since Rodolfo dela
Rosa joined the New People's Army (NPA), there is reason to conclude that he provided himself with arms
such as Exhibits A, B, C to C-7 and D.[16] And since mere possession is sufficient to convict a person for
crimes which are malum prohibitum like illegal possession of firearms, appellant dela Rosa must be convicted.
It is of no moment that he surrendered the ammunitions to the authorities.
We fail to see how appellant dela Rosa could be convicted of illegal possession of firearms based on
the above reasoning. Section 1 of Presidential Decree No. 1866 punishes any person who shall "x x x
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."(Underscoring supplied) [17]
Broken down into its salient elements, illegal possession of firearms is committed when the holder
thereof:
(i) possesses a firearm; and
(ii) lacks the authority or license to possess it.[18]
In People v. de Gracia,[19] we clarified the meaning of possession for the purpose of convicting a
person under PD 1866, thus:
"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 for 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.
"When a 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 intended 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.
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 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."
In the early case of People v. Estoista,[20] we held that a temporary, incidental, casual, or
harmless possession of firearms is not punishable. We stated therein that:
"The terms "control" and "dominion" themselves are relative terms not susceptible of exact definition,
and opinions on the degree and character of control or dominion sufficient to constitute a violation
vary. The rule laid down in the United States courts - rule which we here adopt - is that temporary,
incidental, casual or harmless possession or control of a firearm is not a violation of a statute
prohibiting the possessing or carrying of this kind of weapon. A typical example of such possession is
where "a person picks up a weapon or hands it to another to examine or hold for a moment."
Also, in People v. Remereta,[21] where the question posed was whether an accused who stole a firearm
could simultaneously be prosecuted for theft and illegal possession of firearms, we held that transient
possession is not sufficient to convict one under the latter crime, thus:
"While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal
possession of firearms is not committed by mere transient possession of the weapon. x x x Thus, stealing a
firearm with intent not to use but to render the owner defenseless, may suffice for purposes of establishing a
case of theft, but would not justify a charge for illegal possession of firearm, since intent to hold and eventually
use the weapon would be lacking."
Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a
firearm either physically or constructively with animus possidendi or intention to possess the same.[22] It is
not enough that the firearm was found in the person of the accused who held the same temporarily and
casually or for the purpose of surrendering the same. Admittedly, animus possidendi is a state of mind. As
such, what goes on into the mind of an accused, as his real intent, could be determined solely based on his
prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his
possession.[23]
Thus, in People v. Leo Lian,[24] we rejected the argument of the accused that the charge against him
should be dismissed because there was no animus possidendi on his part. In said case, the accused
contended that he was on his way to the municipal hall to surrender the firearm when he met some of his
friends. He then forgot about the firearm, until the police officer unceremoniously seized the same from him,
affording him no chance to surrender it himself.
In rejecting accused-appellant's claim, Justice Regalado wrote that:
"x x x, the Court finds it hard to believe that appellant still had to hide the firearm in his waist before
setting out to surrender it to the authorities when he could have taken the gun to the town hall in the
same bag in which he found it, in which case it would have been safer and would have avoided
detection. In fine, the indispensable elements of possession without the necessary authority or license
and the corresponding attendance of animus possidendi have both been convincingly established by
the prosecution to warrant appellant's conviction x x x."
That animus possidendi is determinable from the prior and simultaneous acts of the accused is further
exemplified by People v. Lubo.[25] In this case, while accused-appellant pleaded lack of animus possidendi, his
conduct belied the same. Accused-appellant Lubo was found to have secured a "temporary license" for the
subject firearm. Under such circumstance, we held that accused-appellant intended to possess the subject
firearm beyond reasonable doubt.
Coming now to the case before us, it is undisputed that the police officers never really arrested Rodolfo
dela Rosa, for the truth of the matter was that there was no need for such arrest. Dela Rosa and his
companions had surrendered the ammunitions to Kagawad Rigor even before the police arrived. In fact, the
police learned of the surrender because Kagawad Rigor reported it to the police station in Labrador. This is in
contrast to People v. Leo Lian, where appellant Lian merely feigned intention to surrender the firearm which
the police found in his possession. In the case at bar, appellant dela Rosa's intention to surrender the
ammunitions was very clear from the beginning and he was able to execute the same.
Corollarily, the Office of the Solicitor General's contention that dela Rosa was in constructive
possession of the ammunitions is irrelevant for possession -whether physical or constructive- without animus
possidendi is not punishable. Dela Rosa's possession was harmless, temporary and only incidental for the
purpose of surrendering the ammunitions to the authorities. Consequently, the prosecution failed to establish
the first element of animus possidendi.
Similarly, the records are bereft of sufficient proof that Rodolfo dela Rosa possessed the ammunitions
without authority to do so. Except for the preliminaryexamination of Pfc. Cipriano P. Castillo conducted by
Municipal Circuit Trial Judge Benjamin N. Abella,[26] the prosecution offered no other evidence during the trial
which showed lack of license. In the preliminary examination, the only relevant question asked by the judge
was:
"JUDGE ABELLA
"Q: Did you or the Stn. Commander ask or verify whether any or all of the above-named suspects have any
license to possess the above-mentioned firearms and explosives?
"A: Yes, sir. But they stated that they have no license to possess any of the firearms and explosives which
were recovered from their possession, control and custody."
The Office of the Solicitor General offers the extrajudicial statement of accused Rodolfo dela
Rosa[27] that Kumander Tamang supplied him with explosives and dynamite in furtherance of subversive
activities.[28] According to the Solicitors, the extrajudicial statement is sufficient to prove that the firearms were
illegally possessed.The presumption is erroneous. Aside from the fact that dela Rosa repudiated the
extrajudicial statement because it was uncounselled,[29] the same did not contain any admission that he had no
license to possess the firearm. And, even if it had contained an admission that he had no license, it still would
not have sufficed.
In People v. Solayao,[30] the prosecution relied only on the testimonial evidence that accused-appellant
admitted before the police officer who accosted him that he did not have any authority or license to carry the
subject firearm when he was asked if he had one. In acquitting the accused-appellant, we stressed that the
prosecution has the burden of proving beyond reasonable doubt the lack of license which is a negative
averment.[31] The burden is in consonance with the evidentiary rule that "when a negative is averred in a
pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact
are equally within the control of each party, then the burden of proof is upon the party averring the
negative."[32] More importantly, the burden placed on the shoulders of the prosecution to prove beyond
reasonable doubt the lack of license is premised on the constitutional presumption of innocence of the
accused.[33] Thus, in People v. Solayao, this Court suggested that the prosecution could have, at the very
least, presented a certification from the Firearms and Explosives Unit that the accused did not have the
license to the gun. But, an extrajudicial admission of the accused, solely, will not suffice.
The Office of the Solicitor General contends that for accused-appellant to join the New People's Army
and stay in the mountains without arming themselves is highly improbable. Thus, there is reason to believe
that they illegally possessed the ammunitions to further their subversive activities even prior to surrendering
them to the authorities. We reiterate that mere suspicion will not prove the prosecution's case in court. In a
prosecution under Presidential Decree No. 1866, it is incumbent on the Government to prove both elements of
the crime: (1) that the accused possessed the firearm and (2) that he had not first obtained a license or permit
from the appropriate authorities.[34]
As always, mere speculations and probabilities cannot substitute for proof required to establish the guilt
of an accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the
Revised Penal Code which are mala in se or in crimes which are malum prohibitum by virtue of special
law.[35] We find that such quantum of proof was not adequately presented in this case.
IN VIEW WHEREOF, accused-appellant Rodolfo dela Rosa is acquitted in Criminal Case No. L-
3616. His immediate release from the National Bilibid Prisons (NBP) is ordered, except if charged
and detained for other offenses.
SO ORDERED.
G.R. Nos. 109131-33 October 3, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEONITO MACAGALING y ATILLANO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Sancho F. Ferancullo for accused-appellant.
REGALADO, J.:
On July 19, 1991, two separate informations were filed against accused-appellant Leonito Macagaling y
Atillano for the crimes of murder and homicide and, on October 29, 1991, for an additional charge of illegal
possession of a firearm and ammunition, which were docketed as Criminal Cases Nos. 1814, 1815 and 1834,
respectively, before the Regional Trial Court, Branch 81, Romblon, Romblon.1
Assisted by counsel de parte, appellant pleaded not guilty when arraigned in Criminal Cases Nos. 1814 and
1815 on August 28, 1991.2 Likewise, appellant pleaded not guilty when arraigned in Criminal Case
No. 1834 on May 28, 1992.3 The three cases were thereafter consolidated and jointly tried under the
continuous trial system.
On September 14, 1992, the lower court rendered its decision on the aforesaid three indictments with the
following dispositions:
WHEREFORE, this Court finds the accused LEONITO MACAGALING Y ATILLANO
GUILTY beyond reasonable doubt of the crimes of:
1) Homicide under the Information, dated July 19, 1991, in Criminal Case No. 1814,
and sentences him to an indeterminate prison term of from TEN (10) years and ONE (1)
DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS
AND ONE (1) DAY of reclusion temporal, as maximum, with the accessory penalties
therefor. The accused is ORDERED to pay the heirs of DENNIS MACAGALING then
following amounts:
 a) P50,000.00 as indemnity for death and
b) P34,000.00 as actual damages
without subsidiary imprisonment in case of insolvency, and to pay the costs.
2) Homicide under the information, dated July 19, 1991, in Criminal Case No. 1815,
and sentences him to an indeterminate prison term of from EIGHT (8) YEARS AND
ONE (1) DAY of prision mayor, as minimum, to FOURTEEN (14) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of reclusion temporal, as maximum, with the accessory
penalties therefor. The accused is ORDERED to pay the heirs of the deceased
TEOTIMO FAMERONAG the following amounts:
a) P50,000.00 as indemnity for death;
b) P64,000.00 as actual damages; and
c) P350,000.00 by way of lost earnings
without subsidiary imprisonment in case of insolvency, and to pay the costs.
3) Illegal Possession of Firearm and Ammunition under the Information, dated October
29, 1991, in Criminal Case No. 1834, and sentences him to suffer the penalty
of reclusion perpetua, and to pay the costs.
The .38 caliber revolver (Smith and Wesson original without serial number) (Exh. E);
the five (5) empty shells (Exhs. E-1 to E-5); and the live bullet (Exh. E-6) are
confiscated in favor of the government.
After the judgment has become final, the Clerk of Court is ordered to deliver and
deposit the foregoing Exhibits E, E-1 to E-6, inclusive, to the Provincial Director, PNP,
of the Province of Romblon properly receipted. Thereafter, the receipt must be
attached to the record of the case and shall form part of the record.
The period of preventive imprisonment the accused had undergone shall be credited in
his favor to its full extent and the penalties herein imposed shall be served
successively in accordance with Articles 29 and 70, respectively, of the Revised Penal
Code.4
The prosecution's version of the incident, as culled from the testimony of its witnesses in open court, is to the
effect that in connection with the barangay fiesta of Calabasahan, Concepcion, Romblon, a coronation ball
was held in the evening of May 2, 1991 at the public plaza. Present on said occasion, among others, were
Antonieto Fabella, barangay captain of San Pedro, Concepcion, Romblon; Anita Macagaling, mother of the
deceased Dennis Macagaling;
Pfc. Roque Fesalbon, investigator of the local police station; and Roger Lacambra, stepson of Teotimo
Fameronag.
At about 10:00 P.M., the aforesaid Antonieto Fabella, who was also the brother-in-law of Dennis Macagaling,
was watching the festivities when all of a sudden he noticed Leonito Macagaling point and then fire a gun at
his own nephew, Dennis Macagaling. The bullet missed Dennis but wounded Teotimo Fameronag on the right
chest causing the latter to collapse in front of Dennis. Dennis, on his part, tried to escape from Leonito by
running away from the scene.5
At this juncture, Anita saw that her son Dennis was running in a wobbly manner and she embraced him to
prevent him from falling. Leonito grabbed the hair of Dennis and yanked his head, pulling the latter away from
his mother. Anita pleaded to Leonito saying, "Don't, Leonito," but the latter pointed the gun at the temple of
Dennis and shot him point-blank. Dennis fell down ("sumubasob") on the cement floor. Leonito then shot the
prostrate Dennis three times successively on the neck, uttering the expletive "Putang ina mo," and then tried
to leave the vicinity.6
At that very moment, Pfc. Roque Fesalbon was at the barangay tanod outpost near the plaza, having been
dispatched by his station commander to maintain peace and order there. Hearing a gunshot, he immediately
went out to investigate and, on his way, he saw Teotimo Fameronag fall down on the floor of the plaza. He
proceeded to the place of the incident and saw Dennis Macagaling lying on the floor while Leonito Macagaling
was holding a firearm. At that time, he had with him his service pistol and he was also holding an M16 armalite
rifle. Sensing that Leonito was about to flee, he fired three warning shots to prevent him from doing so. Initially,
Leonito refused to hand over his gun but he later relented. Together with Pfc. Sofronio Fabregas, Fesalbon
arrested Leonito and took him to the latter's house which was near the scene of the incident. Fesalbon
inspected the gun which he had retrieved from Leonito and found five empty shells and one live bullet. The
serial number of the gun had been erased.7
Meanwhile, Roger Lacambra, a stepson of Teotimo Fameronag and a member of a dance group, also heard
the gunshots. He noticed that people were screaming and scampering away from the dance hall. Wanting to
know the cause of the commotion, he went near the dance hall and saw Fameronag staggering towards him.
Fameronag fell down on the floor and asked for his help. With the assistance of his co-dancers, he brought
Fameronag to a hospital in Pinamalayan, Oriental Mindoro and, later, to the provincial hospital of Calapan
where the latter expired.8
On the other hand, after talking to Leonito Macagaling in the latter's residence, Fesalbon decided to go back to
the crime scene to proceed with the investigation. He verified that Fameronag had one gunshot would while
Dennis was shot four times. He also found out that the motive of the killing might have been Leonito's
suspicion that Dennis was divulging information about the former's participation in illegal fishing. It appears
that Leonito was previously charged with illegal fishing but the case was later dismissed.9
According to Anita Macagaling, her family incurred funeral and burial expenses in the sum of P15,000.00. For
their trips to and from Corcuera, they spent P2,000.00 for herself and their witnesses' transportation, aside
from P19,000.00 incurred as litigation expenses. 10 On the other hand, Concepcion Vda. de Fameronag,
testified that she spent P40,000.00 for the burial and the wake of her deceased husband, and incurred
litigation, transportation and other incidental expenses in the sum of P31,500.00. 11
As was to be anticipated, the defense had a different account of the incident. Rosauro Fabreag, Jr. testified
that between 5:30 to 6:00 P.M. of the same day, he saw Dennis Macagaling, together with Nonoy Fabellon,
Roger Lacambra and two others whose names he does not know, drinking in a store near his house. Dennis
asked him to join them and he accepted the invitation. While they were drinking, Dennis showed him a gun
tucked on his waist. At about 6:00 P.M., after having taken a couple of drinks, he decided to leave the group
which appeared to be very drunk at that time. 12
William Ferrancullo, a barangay tanod of Calabasahan and a relative of appellant, was also called to testify for
the defense. He averred that in the evening of May 2, 1991, he and other barangay officials were assigned
by Barangay Captain Feras to oversee the proceedings and maintain peace and order at the plaza. At about
9:30 o'clock the evening, he was at the gate and there he noticed a group of five apparently drunken men
enter the dance hall. 13
Later, he decided to go to the barangay tanod outpost located a few meters from the gate. Abruptly, he heard
a gunshot coming from the direction where the intoxicated persons were seated. Rushing towards that area to
investigate, he met Teotimo Fameronag who appeared to have been shot. He saw Fameronag fall to the floor
and it was then that he noticed Dennis Macagaling holding a gun and threatening to shoot anyone who would
come near him. Frightened, he did not move from the spot where he was standing. 14
While all these things were happening, appellant Leonito Macagaling claims that he was in his residence at
Calabasahan, getting ready to rest for the night. He was startled when he heard a gunshot coming from the
direction of the plaza. Still in his short pants and undershirt, he hurried to the plaza and saw the group of
Dennis Macagaling, Willy Ferrancullo, Willito Bruit, and Carlito Macagaling. He approached them and when he
was about two meters from the group, he became aware of Dennis Macagaling who was intoxicated and
holding a gun. Leonito asked Dennis to drop the gun but the latter retorted, "Isa ka pa." Without warning,
Dennis fired at him but missed. Leonito dashed towards Dennis and tried to wrestle the gun away from him. A
struggle for the firearm ensued and they grappled for it on the floor. While they were thus wrestling for the gun,
it went off and hit Dennis. Leonito then stood up, went home, and informed his wife of what had just
happened. 15
Leonito's wife, after observing that he had some bruises, proceeded to clean them. Shortly thereafter,
policemen Roque Fesalbon and Sofronio Fabregas, together with Ferrancullo, arrived and inquired if the gun
was his. He denied ownership of the firearm. Informed by them that Dennis was dead, Leonito said it was not
his fault. The policemen then left. 16
Fesalbon, Fabregas and Ferrancullo thereafter went back to the crime scene and decided to bring Fameronag,
then still alive, to Pinamalayan for treatment. There being no doctor then available in the barangay, the body of
Dennis Macagaling was examined by a rural health midwife, Avemie F. Fabroa, who submitted her medical
findings. 17
Queried as to what might have motivated the deceased Dennis Macagaling to harbor any ill feelings against
him, Leonito recounted an incident that took place in October, 1990 when he slapped Diomedes, the younger
brother of Dennis Macagaling. It appears that Leonito and Diomedes had a previous agreement that the latter
would work in the former's fishing operations. Due to Diomedes' commitment to work for him, Leonito
advanced him some money but, much to his dismay, Diomedes decided to join another group. Leonito waited
for Diomedes along the shore to demand an explanation. An argument ensued and Leonito slapped Diomedes
when the latter cursed him. Having learned of the slapping incident ten days later, Dennis confronted Leonito.
There was a heated exchange of words between them, with Dennis later warning him, "You watch out." 18
Seeking to discredit Pfc. Fesalbon's testimony, Leonito told the court that Fesalbon had reason to hate him.
He claimed that in 1976, due to an incident in a dance hall at Sampong, Calabasahan, he filed an
administrative case against Fesalbon, Luvizmindo Fabroa and Sofronio Fabregas before the National Police
Commission. In retaliation, Fesalbon filed a criminal case for less serious physical injuries against him.
However, both cases were dismissed after they decided to settle the matter among themselves. 19 Appellant
opined that
Pfc. Fesalbon continued to hold a grudge against him.
1. In a long line of cases, it has been held that where the accused admits the killing of the victim but invokes
self-defense, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in
legitimate defense of himself. 20 As the burden of proof is shifted to him, he must consequently rely on the
strength of his own evidence and not on the weakness of that of the prosecution. Accordingly, the proverbial
bone of contention with respect to a killing under such circumstances, is whether or not the accused has
presented sufficient evidence to support him claim of self-defense.21
A careful analysis of appellant's version and a thorough evaluation of the evidence presented by the parties
fail to persuade this Court to rule in appellant's favor.
For one, Leonito's version of the incident appears to be too good to be true. Leonito was confronted by an
armed Dennis Macagaling who apparently was prepared to shoot him. In addition, he and Dennis did not
exactly part as good friends when they last saw each other. In fact, the latter had threatened him to "watch
out." Despite all these, Leonito is supposed to have nonchalantly directed Dennis to hand over his gun. Not
heeding his order, Dennis fired at him, whereupon Leonito heroically rushed towards Dennis and tried to
wrestle the gun away from him, seemingly unconcerned for his safety. And then, after Dennis was shot
"accidentally" while they were wrestling for the gun, Leonito just calmly got up and went home, as if nothing
had happened.
If, as Leonito asserted, he had tried to get Dennis to hand over the gun because he was even concerned that
an innocent bystander might be hurt, it baffles the Court why he did not immediately rush his own nephew
Dennis to the hospital for medical care and attention when the latter was shot. It is a most unusual reaction for
one who had accidentally shot another to just leave the vicinity with the victim unattended to or without even
making arrangements for his care. Furthermore, as will hereafter be discussed, the number of wounds
sustained by the victim completely demolishes this theory of accidental shooting.
Principal defense witness William Ferrancullo, who was presented in court obviously to corroborate the
version of appellant, miserably failed to do so. He is one witness the defense could have done without, for this
star witness could not seem to get his story straight, conveniently changing his testimony to suit his purpose at
the particular moment, without taking into consideration the statements he had previously made, some
instances of which we shall illustrate.
For example, Ferrancullo earlier testified that when he was asked by
Pfc. Roque Fesalbon as to who started the trouble, he pointed to Leonito Macagaling as the culprit. 22 Later,
however, he insisted that he did not inform the policemen as to what he knew, giving the flimsy reason that
"there was no chance for us to talk." 23 How he could justify that excuse is beyond comprehension since he
himself asserted that he was all the while with the policemen when they went to appellant's residence after the
shooting and he also tagged along when they went back to the scene of the crime where they conducted
further investigations.
Evidently, Ferrancullo had definite knowledge that Leonito was a suspect in these cases. His statements,
however, would show that he does not have the uncanny knack for lying and getting away with it. In an earlier
testimony, he said it was only on July 2 or 5, 1992, when so informed by the wife of Leonito, that he came to
know that Leonito was a suspect in the cases. 24 Yet, he subsequently admitted that as early as June, 1992,
he had visited Leonito at
the provincial jail where the latter was detained because of the killings in question.25
The trial court, posing clarificatory questions, asked Ferrancullo about the persons to whom he had confided
what he knew about the case. He said he first narrated the incident to his mother who lives in the mountains of
San Pedro on the morning of May 3, 1991. 26 Pressed further by the court, he amended that by saying that he
had informed his wife thereof after he left the dance hall of that fateful night. He also told Atty. Ferrancullo
about the incident in November, 1991 and, naturally, when he testified in court. Asked if he told any other
person, he said there was none. Later, he claimed that he also told Leonito's wife.27
The court, not satisfied with the answers it was getting from the witness, inquired why Ferrancullo, being
a barangay tanod, did not tell the barangay captain who had assigned him at the plaza as to what he knew.
This time, Ferrancullo suddenly recalled that, from Leonito's house, he did in fact go to the barangay captain's
house purposely to inform the latter of the incident.28
Ferrancullo's propensity for prevarication is further demonstrated by his varying accounts as to the wounds
sustained by the victim. First, he asserted that while Leonito and Dennis were grappling for the gun, he heard
only two shots 29 which meant that Dennis could have sustained only two gunshot wounds at the most.
Thereafter, he said that he was sure that the victim sustained one shot on the head and three on the neck,
having been present when the photographs of the cadaver of Dennis was taken. Later, he changed his mind,
stating that the victim suffered only one wound on the neck and one of the
head.30
This brings us to the matter of the number of wounds sustained by the victim, which physical evidence is vital
since it could lend credence to appellant's claim of self-defense. However, as earlier stated, appellant's
version and concomitant claim of self-defense is belied and negated precisely by the number of wounds
sustained by the deceased and the location thereof. Appellant maintains that while both he and Dennis were
struggling for control of the gun, the same accidentally fired, hitting the latter. If indeed the firing of the gun was
merely accidental and it fired only once, it would be impossible for Dennis to sustain four gunshot wounds, one
in the temple and three in the neck. 31 Furthermore, the number of wounds indicate that the act was no longer
an act of self-defense but a determined effort to kill the victim. 32 Such wounds are indicative of aggression
and confirm the theory of the prosecution that appellant assaulted the deceased.33
Considering the grave contradictions in Ferrancullo's testimony on issues of serious importance, this Court
agrees with the court a quo which, after chronicling twelve instances undermining the credibility of said witness,
trenchantly concluded that "the principal witness of the defense, William Ferrancullo, did not see the incident
that evening or if he did, he narrated it differently."34
In his brief, appellant makes an issue of the fact that although Antonieto Fabella categorically testified in court
that it was Leonito Macagaling who shot and killed Dennis Macagaling, he did not mention their specific
names in his affidavit. This argument is misleading and specious, to say the least. A careful perusal of said
affidavit shows that when asked to narrate what happened, Fabella indeed did not refer to the parties involved
by their given names. However, immediately after said narration, he was asked whether he knew their names
and he answered in the affirmative, giving their first and family names.35
Appellant, in his desperate bid for acquittal, even questions the fact that the lower court, instead of granting his
own counsel's motion for a postponement, appointed Atty. Cesar M. Madrona of the Public Attorney's Office
as counsel de oficio. Appellant asserts that, in doing so, the trial court deprived him of his constitutional right to
be represented by a counsel of his choice. We reject this pretension.
The records show that appellant was given the right to choose his own counsel. However, the court in its
desire to finish the case as early as practicable under the continuous trial system made appropriate
arrangements to avoid unnecessary delay and postponements of the trial in case of the absence of appellant's
counsel de parte. Thus, in its December 12, 1991 order, the trial court set out the specific dates for the
presentation of the prosecution witnesses, noting that the prosecution witnesses were all from the far-flung
island municipality of Concepcion in Maestre de Campo Island, Romblon, which is about seven hours away by
boat. It also advised appellant of the availability of Atty. Madrona as counsel de oficio any time Atty. Sancho
Ferancullo was not available. Appellant was properly forewarned that any legal maneuvers meant to unduly
delay these cases wound not be entertained by the court.
Furthermore, after the presentation of the prosecution witnesses,
Atty. Ferancullo took over the conduct of the defense of appellant. Thus, in all stages of the trial, his own
counsel was in charge except when the prosecution witnesses were testifying. The Court, after a review of the
records, agrees with the Solicitor General's position that "with the demonstrated strength of the prosecution
evidence, it is unlikely that Atty. Ferancullo's presence during the entire proceedings would have materially
affected the result of the cases."36
Appellant would discredit the prosecution witnesses by adverting to the fact that, except for Pfc. Roque
Fesalbon, they are all very close relatives of the victims. 37 A witness' relation to the victim does not
necessarily mean that he is biased. There is absolutely nothing in our laws to disqualify a person from
testifying in a criminal case in which said person's relative is involved, if the former was really at the scene of
the crime and was a witness to the execution of the criminal act. Precisely, being blood relatives of the
deceased, these witnesses would not just indiscriminately impute the crime to anybody but would necessarily
identify and seek the conviction of the real culprit himself to obtain justice for the death of their relative.
Still bent on assailing the credibility of the prosecution witnesses, appellant cites alleged inconsistencies in
their testimonies. Firstly, Antonieto Fabella had testified that when he heard the first gunshot, Leonito was
inside the dance hall of the barangay plaza. 38 On the other hand, appellant claims that Roger Lacambra
testified that he saw Leonito on the street at that time. This is, of course, not an inconsistency on the part of
Fabella since the supposed variant version was made by a different witness, Lacambra. Just to satisfy
appellant, however, we have verified from the transcripts that what Lacambra said was that he saw Leonito on
the street before the first shot was fired, to wit:
Q: If you heard the first shot while you were on your way, you
did not see Leonito before the first shot, am I correct?
A: I saw him.
xxx xxx xxx
Q: Where was Leonito?
A: He was in the street. 39
A second flaw, according to appellant, is the fact that Fabella testified that he heard Fesalbon fire two warning
shots, 40 whereas Fesalbon declared that he fired three times. 41 This is clearly an insignificant and minor detail
which would not affect the credibility of the witnesses' testimonies. As long as the witnesses concur on the
material points, slight differences in their remembrance of the details do not reflect on the essential veracity of
their statements, 42more so where the trivial issue is the number of shots one hears from rapid gunfire.
Thirdly, appellant insists that Fabella testified that when appellant was running away from the crime scene
after the incident, Fesalbon and Fabregas blocked his path while Fesalbon stated that he was alone when he
approached the suspect. However, nowhere in his testimony did Fesalbon state that he alone blocked the path
of Leonito. In fact, when queried as to what he did
with appellant after he got the gun from him, Fesalbon answered, "We arrested him," 43 thereby affirming the
fact that he was not alone at that time but that Fabregas was working in concert with him.
On the charge of homicide for the killing of Teotimo Fameronag, appellant did not offer any defense. When
Ferrancullo was asked if he knew who killed Fameronag, he said he did not know. 44 Neither did appellant
offer any explanation on the death of Fameronag despite the positive statements of the prosecution witnesses
that while trying to shoot Dennis, appellant instead hit Fameronag. The only defense, then, of appellant for the
death of Fameronag is a complete denial. Denial, like alibi, is inherently a weak defense and cannot prevail
over the positive and credible testimony of the prosecution witnesses that the accused committed the
crime, 45 especially where, as in these cases, such denial is unexplained and is contradicted by eyewitnesses.
For the death of Dennis Macagaling, although the information in Criminal Case No. 1814 charges the felony of
murder qualified by treachery and aggravated by evident premeditation, the People's evidence does not prove
the attendance of these circumstances. They cannot, therefore, be appreciated against appellant and the
lower court correctly convicted him of homicide in Criminal Case No. 1814.
For the killing of Teotimo Fameronag, the same cannot be said to be accidental as it was the result of
an aberratio ictus, or miscarriage of the blow. As a matter of law, since such death resulted from a
culpable aberratio ictus, appellant should be punished under Article 48, in relation to Article 4, of the Revised
Penal Code. Having committed attempted homicide as against Dennis Macagaling and consummated
homicide with respect to Teotimo Fameronag when he fired the first shot, appellant committed two grave
felonies with one single act and, accordingly, he would be liable for a complex crime in the nature of a delito
compuesto, or a compound crime. 46 However, not having been so charged, he cannot be convicted of a
complex crime, 47 hence the court below did not err in finding him guilty of simple homicide in Criminal Case
No. 1815.
2. The charge of illegal possession of a firearm and ammunition merits a more extended consideration. It will
be recalled that this third accusation was filed as Criminal Case No. 1834 on October 29, 1991, or more than
three months after the filing of the first two indictments in the same court, under an information which alleged
that during the same incident involved in Criminal Case Nos. 1814 and 1815 —
. . . the said accused, did then and there, without legal authority therefor, willfully,
unlawfully and feloniously have in his possession and under his custody and control
one Cal. 38 Revolver (Smith and Wesson without serial number) with one live bullet
and five empty shells which he used in shooting Dennis Macagaling and Teotimo
Fameronag.48
Prefatorily, we note from appellant's brief his position that the lower court erred in holding that the gun was
owned by him without being supported by convincing proof. He asserts that assuming arguendo that the gun
was handed by him to Pfc. Fesalbon immediately after the former arrived at the scene of the crime, this is not
sufficient proof that he owned the gun. 49 Appellant's theory is off-tangent.
Under Section 1 of Presidential Decree No. 1866, the gravamen of the offense is basically the fact of
possession of a firearm without a license, it being assumed that it was so possessed with animus possidendi.
We have heretofore explained that, in view of the text of said decree, the crime may be denominated as
simple illegal possession, to distinguish it from the aggravated form wherein such firearm is used in the
commission of a homicide or murder. 50However, to be liable for the aggravated form of illegal possession of a
firearm which entails the capital punishment, such illegal possession must be the specific and principal offense
charged, with the fact of killing being included in the particulars of the indictment.51
In either case, the offense is committed not on the basis of ownership but of possession of the firearm without
the requisite license or permit, and this disposes of appellant's objection on this score. What, however, is of
greater concern to the Court is whether the prosecution has discharged the burden of proof on this charge.
Corollarily, the inquiry should be whether there was sufficient identification of the firearm presented in the trial
court and, more importantly, whether there was sufficient evidence to establish the negative allegation that
appellant possessed the gun "without legal authority therefor."
On the identification of the gun, these exchanges in the courtroom during the cross-examination of Pfc.
Fesalbon, the lone prosecution witness on this issue, give us ground to pause and doubt:
Q — You also stated that this was the gun you got from Leonito
Macagaling that evening of May 2?
A — Yes sir, that is the gun.
Q — How did you know that this is the gun?
A — Because it was really the gun I took from him.
Q — How do you know that this is really the gun?
A — Because at the bottom of the bat (sic, should be butt) there
is a serial number and it was erased by grinding and the serial
number was erased.
Q — When did you discover that the serial number here was
erased?
A — Immediately after my inspection I discovered that there is
no serial number.
Q — When did you make your inspection?
A — Immediately after his arrest.
xxx xxx xxx
Q — But there were many guns like this whose serial number
has been erased, do you think serial number —
A — I don't know, that is the only gun I saw with erased serial
number, even paltik guns have serial numbers.
Q — So that is the only distinguishing mark that you can tell us
how you recognized this gun to be the gun which you took from
Leonito Macagaling that evening?
A — Not only that serial number but the whole body of the gun.
COURT:
Did you not place your own personal identification mark in
Exhibit E?
A — My personal identification is that I could identify paltik and
those genuine guns.
COURT:
You did not answer the question, answer the question.
A — I did not put any distinguishing mark.
COURT:
That should be answered that way. That can be answered by yes or no. Next tine
again you should place again your own identification in guns and even ammos. (I)n
Exhibits E-1 to E-6, did you place your own identification mark in each of them?
A — No, sir.
COURT:
Next time you place your own mark. Because from apprehension up to this very
moment, it is a long, long time, it crossed the very handle (sic) by many hands.
Proceed.
xxx xxx xxx
ATTY. MADRONA:
Q — What I mean with general appearance li(k)e this gun,
would you agree with me that there are thousands of (S)mith
and (W)esson guns with the general appearance like this?
A — Yes, sir. 52
It is a curious fact that although the incident took place on May 2, 1991, the information in Criminal Case No.
1834 for illegal possession of the gun was filed only on October 29, 1991. Pfc. Fesalbon testified thereon on
May 29, 1992 and yet, although the firearm was in the possession of the police for more than a year, there
was no attempt to ensure its positive identification through standard police procedure of which Pfc. Fesalbon,
as a police investigator, could not have been unaware.
For that matter, the efforts exerted to obtain evidence proving that appellant was not a licensed holder of the
firearm was lackadaisical at best. This is the prosecution's only evidence to prove the allegation in the
information that appellant's possession of a firearm was "without legal authority therefor," again through the
bare testimony of Pfc. Fesalbon:
Q — You made mention that you conducted an investigation
after taking Exhibit D (sic, should be E) from the accused, did
you find out whether that gun is licensed or not?
A — Yes, sir.
Q — What did you find out?
A — I found out that the gun has no license.
Q — Do you mean to tell this Honorable Court that the accused
Leonito Macagaling is not a firearm licensee of your town?
A — Yes, sir. 53
This is all. Nor did the witness deign to explain how he arrived at his conclusion. No other evidence was
presented on this serious charge which, in its aggravated form could, at the least, be punished by reclusion
perpetua due to the proscription against the death penalty.* Yet, despite the opportunity and intervening time
to do so, not even a certification that appellant was not a licensed firearm holder was obtained from the
Firearms and Explosives Office or the local command of the Philippine National Police. And this brings us to offense charged lies on the prosecution and that a negative fact alleged by the
the question of the necessity and the quantum of evidence for proving a negative allegation in an information, prosecution must be proven if "it is an essential ingredient of the offense charged", the
in this case the lack of a firearms license or permit. burden of proof was with the prosecution in this case to prove that the firearm used by
appellant in committing the offense was not properly licensed.

The evidentiary rule on negative averments in the 1940 Rules of Court 54 as adopted in the 1964 Rules of
Court 55 in criminal cases was as follows:
Sec. 2. Burden of proof in criminal case. — In criminal cases the burden of proof as to
the offense charged lies on the prosecution. A negative fact alleged by the prosecution
need not be proved unless it is an essential ingredient of the offense charged.
(Emphasis ours.)
While the italicized portion was not carried over to the revised Rules on evidence, there is no reason to believe
that such requirement for proof of a negative element of the offense charged has been dispensed with, since it
is specifically provided therein that the "(b)urden of proof is the duty of a party to present evidence on the facts
in issue necessary to establish his claim or defense by the amount of evidence required by law." 56
As applied to prosecutions for illegal possession of firearms and ammunition, the present rule on proving the
negative fact of lack of a license actually harks back to the case of People vs. Quebral, 57 where we find this
passage clarifying the seemingly contentious pronouncements on the matter:
The rule is, and has always been, that, if the subject of the negative averment, like, for
instance, the act of voting without the qualifications provided by law, inheres in the
offense as an essential ingredient thereof, the prosecution has the burden of proving
the same (Sec. 297, Act No. 190; U.S. vs. Tria, 17 Phil., 303, 306, 307). In view,
however, of the difficult office of proving a negative allegation, the prosecution, under
such circumstance, need do no more than make a prima facie case from the best
evidence obtainable. (U.S. vs. Tria, supra) It would certainly be anomalous to hold ". . .
that mere difficulty in discharging a burden of making proof should displace it; and as a
matter of principle the difficulty only relieves the party having the burden of evidence
from the necessity of creating positive conviction entirely by his own evidence so that,
when he produces such evidence as it is in his power to produce, its probative effect is
enhanced by the silence of his opponent" (22 C.J., pp. 81, 82).
xxx xxx xxx
Section 770 of the Administrative Code provides that "no person shall practice
medicine in the Philippine Islands without having previously obtained the proper
certificate of registration issued by the Board of Medical Examiners. . ." This provision
clearly includes the want of certificate as an essential element of the offense charged.
The negative fact is not separable from the offense as defined. It is, therefore,
incumbent upon the prosecution to prove that negative fact, and failure to prove it is a
ground for acquittal. (Emphasis in the original text.)
While the offenses involved or discussed therein were illegal practice of medicine without the certificate of
registration and the unlawful act of voting without the qualifications required by law, the rationale evidently
applies to illegal possession of firearms without a license. Thus, although there were some supervening
departures from the doctrine announced therein, the principle in Quebral was adopted in People vs.
Pajenado 58 where we held:
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 . . .
specifically alleged that he had no "license or permit to possess" the .45 caliber pistol
mentioned therein. Thus, is seems clear that it was the prosecution's duty not merely to
allege that negative fact but to prove it. . . . (Emphasis supplied.)
This doctrinal rule was reiterated in People vs. Tiozon, 59 People vs. Caling, supra, People vs. Ramos, et
al., 60People vs. Arce, 61 and People vs. Deunida, 62 and this constitutes the present governing case law on
this question. We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution
to prove all the ingredients of the offense as alleged against the accused in an information, which allegations
must perforce include any negative element provided by the law to integrate that offense. We have reiterated
quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense
charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged. 63
Applied to the cases at bar, we cannot conceive of how, under the demonstrated circumstances herein, we
can sustain a judgment of conviction on this particular charge. It may be well to recall that how the firearm
came into appellant's possession is a seriously contested issue, with the prosecution witnesses merely stating
that they saw the gun only when appellant aimed and fired at the victims, but with appellant contending that he
actually wrested it from Dennis Macagaling. As to who in truth was the possessor of the firearm prior to the
incident cannot be determined with certitude due to the paucity of the evidence thereon. In fine, since all that
can be deduced is that appellant was in possession of the gun only on that occasion for a transitory purpose
and for the short moment coeval therewith, it cannot be concluded that he had the animus possidendi which is
required for the offense charged.
The highly unsatisfactory identification of the gun, coupled with the intervening time between its retrieval from
appellant to its presentation in the court below, increases our misgivings on whether it was in fact the weapon
involved. Indeed, such lack of positive identification is virtually equivalent to the non-production of the real
firearm in court and is analogous to the situation in People vs. Caling, supra, where the rifle allegedly involved
in the case was not presented in evidence. We held that such failure effectively closed the door to any proof of
the negative fact that no license or permit therefor had been issued to the accused therein.
The foregoing disquisitions in Quebral, Pajenado and other cited cases have inevitably clinched the case for
herein appellant on this accusation, this time by reason of the abject failure of the prosecution to adduce the
requisite evidence on its negative averment. Even on the assumption that mere prima facie evidence of the
lack of a license or permit on the part of appellant would suffice, still the self-serving, unexplained and
undocumented conclusion thereon of Pfc. Roque Fesalbon could not even assume a rough approximation of
that evidential quantum.
WHEREFORE, the judgment of the trial court finding accused-appellant Leonito Macagaling y Atillano guilty of
the crime of homicide in Criminal Case No. 1814 and also of homicide in Criminal Case No. 1815 is hereby
AFFIRMED. However, its judgment in Criminal Case No. 1834 for illegal possession of a firearm and
ammunition is REVERSED and said accused-appellant is hereby ACQUITTED of the offense charged therein
on reasonable doubt, with costs de oficio.
SO ORDERED.

Upon the question of whether or not appellant should also be convicted of the crime of
illegal possession of a firearm, We agree with both appellant's counsel and the Solicitor
General that the appealed decision should be reversed.
[G.R. No. 104504. October 31, 1997]

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
PEDRITO PASTRANO, petitioner vs. HON. COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals, affirming the conviction
of petitioner Pedrito Pastrano of the crime of Illegal Possession of Firearms by the Regional Trial Court of
Oroquieta City, Branch 13.
The facts are as follows:
On February 13, 1989, a group of students went to see Capt. Rodolfo Maoza, then intelligence
operations officer of the Philippine Constabulary, at Camp Naranjo, at Oroquieta City. They reported having
seen Clyde Pastrano beaten up by his father, petitioner Pedrito Pastrano. The students were willing to testify
but expressed fear of the petitioner who, according to them, had firearms. Clyde Pastrano had died and it was
suspected he had been the victim of foul play.
On February 20, 1989, two sons of Pedrito Pastrano by his estranged wife - James Clement G.
Pastrano and Clinton Steve G. Pastrano - also saw Capt. Maoza, seeking his assistance in connection with
the death of their brother Clyde. The brothers reported that their father and his common-law wife were keeping
unlicensed firearms in their house. They executed a joint affidavit on February 20, 1989 in which they stated
that they had personal knowledge of the fact that their father Pedrito Pastrano was keeping three (3) firearms
of different calibers in the bedroom of his house.
On the basis of the affidavit of the Pastrano brothers, Capt. Maoza applied for a search warrant on the
same day.
After examining complainant and the two brothers, Judge Teodorico M. Durias of the Municipal Trial
Court of Oroquieta City (Branch I) issued a search warrant which Capt. Maoza and his men later served at the
residence of Pedrito Pastrano at Capitol Drive, Oroquieta City. Seized from petitioners dwelling was a sack
containing the following:
One (1) Revolver Cal. 22 Magnum with Serial No. 07345. Made in Germany ROHMGMBH
SONTHEM/BRENZ;
One (1) round ammunition for Cal. 22 Magnum;
One (1) Revolver Cal. 32 with Serial No. 233833 Colt Made in U.S.A.;
Six rounds of live Ammunition for Cal. 32 revolver.
On the basis of the evidence thus seized, petitioner Pedrito Pastrano y Capapas and his common-law
wife, Erlinda Ventir y Sanchez, were charged with Illegal Possession of Firearms and Ammunition as
penalized under P.D. No. 1866, 1. The information against them alleged:
That on or about the 20th day of February 1989 and during the period prior thereto, in Barangay Lower
Langcangan, Oroquieta City, Philippines and within the jurisdiction of this Honorable Court, the said accused
conspiring together and collaborating with each other, did then and there keep, possess and maintain at their
residence known as Door #1, Aguja Apartment, Capitol Drive, Lower Langcangan, Oroquieta City, the
following firearms:
One (1) Revolver Cal. 22 Magnum with Serial No. 07345, Made in Germany ROHM GMBH
SONTHEM/BRENZ;
One (1) round Ammunitions for Cal. 22 Magnum;
One (1) Revolver Cal. 32 with serial No. 233833 Colt. Made in U.S.A.;
Six (6) rounds live ammunition for Cal. 32 Revolver.
Without having the necessary license, authority and/or permit duly issued to or granted them by the proper
government agency/official as determined by law.
Contrary to law.
On January 14, 1991, the trial court rendered a decision finding petitioner guilty, even as it found his
common-law wife, Erlinda Ventir, innocent of the charge. The dispositive portion of its decision read:
WHEREFORE, this Court finds accused Erlinda Ventir innocent of the crime charged but finds accused
Pedrito Pastrano guilty beyond reasonable doubt of illegal possession of firearms and ammunitions for which
he is sentenced to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision mayor, as
minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS and ONE (1) DAY reclusion temporal, as
maximum. No pronouncement as to costs.
SO ORDERED.
On appeal, the Court of Appeals upheld the decision of the trial court. Hence, this petition for review.
Petitioner contends:
1. The Court of Appeals erred as a matter of law in affirming the findings of the trial court convicting the
accused of the crime of illegal possession of firearms despite clear and convincing proof that
accused is duly authorized to carry firearms per PTCFOR No. 40448 and Mission Order No. 01-06-
89.
2. The Search Warrant issued by Judge Teodorico Durias is invalid for failure to comply with the basic
requirements of the Constitution. Hence, the evidence obtained is inadmissible in court.
The first ground for the petition is without merit. P.D. No. 1866, 1 punishes 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. Section 2 of the Rules and Regulations Implementing P.D. No. 1866 provides that
Any person or entity desiring to import, manufacture, deal in, receive, acquire, buy, sell, dispose of or possess
any firearm, part of firearms, ammunition, or explosives or machi-nery, tool or instrument used or intended to
be used in the manufacture of any firearm, parts of firearm, ammunition or explosives shall first secure the
necessary permit/license/authority from the Chief of Constabulary, except that in the case of application to
manufacture firearms, ammunition or explosives, the corresponding permit/license shall be issued, only with
the prior approval of the President.
The possession of any firearm without the requisite permit/license is thus unlawful. In this case two
witnesses for the prosecution, both from the Philippine Constabulary, testified that petitioner had no license to
possess the firearms seized from him. Sgt. Eugenio Salingay, officer-in-charge of the licensing of firearms at
Camp Naranjo in Oroquieta City, testified that petitioner and his common-law wife Erlinda Ventir were not in
the list of registered firearm holders in Misamis Occidental.Neither did they have any pending application for a
gun permit.
Capt. Rodolfo Maoza, on the other hand, testified that he had made inquiries from the Southern
Command in Zamboanga City whether the firearms seized from petitioner were organic firearms of that
command and was informed that they did not belong to that command. He also inquired from the commanding
officer of the 55th Infantry Battalion whether Pedrito Pastrano and Erlinda Ventir were members of the Citizens
Armed Forces Geographical Unit (CAFGU) in Oroquieta City, and he found they were not.
Petitioner admitted ownership of the .32 cal. revolver bearing Serial No. 233833 (Exh. J) but claimed
that the .22 cal. magnum revolver with Serial No. 07345 (Exh. I) belonged to his cousin, a certain Luz Laspias,
who gave it to him merely for safekeeping. Petitioner claimed that he had bought the .32 cal. revolver in
January 1989 from the grandson of the late Atty. Felipe Tac-an who had a license to possess the
gun. Petitioner produced a Mission Order dated January 9, 1989 issued to him by Lt. Col. Celso A. Undag,
Philippine Army, Deputy Brigade Commander, and a Mission Order issued to Luz Laspias, also by Lt. Col.
Undag, as authority for them to possess the firearms in question. He also presented a Permit to Carry Firearm
Outside of Residence dated January 1, 1989 signed by Major General Ramon Montao, then chief of the
Philippine Constabulary, for the firearm he purchased and another Permit to Carry Firearm Outside of
Residence issued to Luz Laspias for the latters gun.
The trial court and the Court of Appeals both ruled that the Mission Orders and the Permits to Carry
Firearm Outside of Residence did not give petitioner authority to possess the firearms in question. We
agree. It is clear from P.D. No. 1866, 1 and the Implementing Rules, 2 that a license is necessary in order to
possess a firearm. A Permit to Carry Firearm Outside Residence does not render the license unnecessary
because its purpose is only to authorize its holder to carry the firearm outside his residence. A Permit to Carry
a Firearm Outside the Residence presupposes that the party to whom it is issued is duly licensed to possess
the firearm in question. This is clear from the following provision of the Implementing Rules:
3. Authority of private individuals to carry firearms outside of residence.
a. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of
registration or M/R) are prohibited from carrying their firearms outside of residence.
b. However, the Chief of Constabulary may, in meritorious cases as determined by him and under such
conditions as he may impose, authorize such person or persons to carry firearm outside [of] resi-dence.
c. Except otherwise provided in Secs. 4 and 5 hereof, station in pursuance of an official mission or duty shall
have the prior approval of the Chief of Constabulary.
For the same reason, a Mission Order cannot take the place of a license. As the trial court pointed out:
Sec. 1(d) of the implementing rules and regulations of P.D. No. 1866 defines a mission order as a written
directive or order issued by competent authority to persons under his supervision and control for a definite
purpose or objective during a specified period and to such place or places as therein mentioned which may
entitle the bearer thereof to carry his duly issued or licensed firearm outside of his residence when so specified
therein.
As in the case of Permit to Carry Firearm Outside the Residence, a Mission Order can only be issued to the
holder of a permit/license or authority to possess firearm.
Nor is there any merit in petitioners contention that since the .32 cal. revolver is covered by a license
issued to its former owner, petitioners possession of the same firearm is legal. The permit/license or authority
to possess firearm contemplated by P.D. No. 1866 and its Implementing Rules is one which is issued to the
applicant taking into account his qualifications. Contrary to petitioners contention, therefore, the possession of
firearms is unlike the registration of motor vehicles. A permit/license or authority to possess firearms is not
transferrable to the purchaser of the firearm.
The second ground for the present petition is that the evidence against petitioner was obtained through
illegal search. Petitioner cites the constitutional provision that
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.[1]
Petitioner contends that Capt. Rodolfo Maoza, who applied for the search warrant, did not have
personal knowledge of the facts on which the warrant was based.But the trial court actually examined the two
brothers, James Clement G. Pastrano and Clinton G. Steve Pastrano. These two were the ones who reported
the matter to Capt. Maoza. They gave information of the illegal possession of firearms by their father,
petitioner herein, on the basis of personal knowledge. Their testimonies, not that of Capt. Maoza, formed the
basis of the trial courts finding of probable cause for the issuance of a search warrant. As Capt. Maoza
testified:[2]
Q: When Clinton and James Pastrano went to your office on February 20, 1989, and told you
that their father and his paramour possessed some firearms, what steps did you take?
A: I applied for a Search Warrant and brought the two brothers before Judge Durias.
....
Q: What happen[ed] after that, when you filed this application for Search Warrant with the
Municipal Trial Court in Cities, Branch 1, Oroquieta City, what happen[ed] when you filed?
A: Judge Durias examined the two witnesses, the two brothers, and after that, he issued the
Search Warrant.
Petitioner finally assails the absence of a written deposition showing that the judge had examined the
complainant and his witnesses by means of searching questions in writing and under oath as required by Rule
126, 4 of the Rules on Criminal Procedure, to wit:
4. Examination of complainant, record. - The judge must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under oath the complainant and any witnesses he
may produce on facts personally known to them and attach to the record their sworn statements together with
any affidavits submitted.
Rule 126, 4 indeed requires the examination of the complainant and his witnesses to be put in writing
and under oath. But although this is a ground for quashing a search warrant in this case, petitioner did nothing
to this end. He did not move to quash the information before the trial court.[3] Nor did he object to the
presentation of the evidence obtained as being the product of an illegal search. In the case of Demaisip v.
Court of Appeals,[4] we held:
At any rate, objections to the legality of the search warrant and to the admissibility of the evidence obtained
thereby were deemed waived when no objection to the legality of the search warrant was raised during the
trial of the case nor to the admissibility of the evidence obtained through said warrant.
Petitioner thus waived any objection based on the illegality of the search. As held in People v.
Omaweng,[5] the right to be secure against unreasonable searches and seizures, like any other right, can be
waived and the waiver may be made either expressly or impliedly.
We find that the prosecution clearly established the elements of the crime charged and that the Court of
Appeals and the trial court correctly found petitioner guilty beyond reasonable doubt of the crime of Illegal
Possession of Firearms and Ammunition.
We hold, however, that the penalty imposed on petitioner should be modified by reducing it, in view of
R.A. No. 8294,[6] which took effect on July 6, 1997. Penal statutes are to be retroactively applied insofar as
they are favorable to the accused. Under the new statute, the penalty for Illegal Possession of Firearm has
been reduced to prision correccional maximum and a fine of not less than P15,000.00 with respect to the
possession of the .32 cal. revolver and to prision mayor minimum and a fine of P30,000.00 with respect to the
possession of the .22 cal. Magnum revolver. Additional benefit would redound to petitioner because the
Indeterminate Sentence Law will have to be applied.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner
is hereby SENTENCED to 4 years, 2 months, and 1 day of prision correccional maximum, as minimum, to 6
years and 8 months of prision mayor minimum, as maximum, and a fine of P30,000.00, for his illegal
possession of the .22 cal. Magnum revolver; and to 2 years, 4 months, and 1 day of prision correccional, as
minimum, to 4 years, 9 months, and 11 days of prision correccional, as maximum, and a fine of P15,000.00 for
his possession of the .32 cal. revolver.
SO ORDERED.
G.R. No. L-27586 June 26, 1970
ERNESTO CUENCA Y CUEVAS, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
Arsenio O. de Leon for petitioner..
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C. Borromeo and Trial
Attorney Josefina Domingo-De Leon for respondents..
CONCEPCION, J.:
Appeal, by certiorari, taken by defendant Ernesto Cuenca y Cuevas, from a decision of the Court of Appeals
affirming that of the Court of First Instance of Manila, convicting him of the crime of illegal possession of a
firearms and seven rounds of ammunition and sentencing him to imprisonment for one year and to pay the
costs, as well as directing the confiscation and forfeiture of said firearm and ammunition.
The facts, as found by the trial court, and adopted by the Court of Appeals, are as follows:
The accused was a special watchman and security guard of the Bataan Veterans
Security Agency. In that agency, they were more than forty security guards. It was the
practice in the agency that when the security guards reported for work, they were
provided with firearms and ammunition, which they would return after their tour of duty.
On January 3, 1963, the accused was detailed at the Philippine Savings Bank as
security guard. He was wearing the uniform of the agency and was armed with a pistol,
Ithaca, .45 cal., with Serial No. 1009738, which had a magazine containing seven
rounds of ammunition. The firearm and the ammunition were provided by the agency.
The firearm was not always used by him alone, as at other times the same firearm was
used by the other security guards. On the date and the place mentioned, Pat. Paul
Sabate, who was stationed at Plaza Miranda as security officer of the stage show,
arrested the accused for illegal possession of the said firearm and ammunition. When
asked to produce his license to possess the firearm and ammunition, the accused told
him that he was a special watchman and security guard of the Bataan Veterans
Security Agency to which the firearm and ammunition belonged, and the license to
possess the same was in the office of the agency. The accused told Pat. Sabate that
the owner of the agency was one Mr. Forbes, who had the license for the said firearm
and ammunition. According to Pat. Sabate, the agency was under the supervision of
the Manila Police Department.
It appears that the agency has no license to possess the firearm and ammunition in
question; hence, neither the accused nor the agency is a licensed possessor of said
firearm and ammunition. The accused claimed that he was made to believe in the
agency that Mr. Forbes had license to possess them.
The issue in this case is whether appellant is guilty of the offense charged, considering that, at the time above-
mentioned, he was a regular security guard of the Bataan Veterans Security Agency, which was duly licensed
to operate as such security agency; that, in the course of its regular operation, the same provides its security
guards, who are in the discharge of their duties as such, with the usual firearms and ammunitions, which, at
the end of their respective shifts, are either kept in the proper locker or returned to the agency and then
delivered by the latter to the security guards assigned to the next shift; that the firearm and ammunitions in
question were found in appellant's possession at the time when, and at the place where, he was actually
discharging his duties, wearing the corresponding uniform, arm band and badge; that upon being asked by
Patrolman Paul Sabate to produce the requisite license, appellant stated that the same was in the possession
of Jose Forbes, the owner and operator of the Bataan Veterans Security Agency, of which he (appellant) is,
and has been, since April, 1961, one of its approximately forty (40) security guards; and that, soon thereafter,
Jose Forbes confirmed, in the police station, the statements made by appellant, but added that he (Forbes)
was still in the process of getting the said license.
The trial court and the Court of Appeals convicted appellant herein, despite his protests of good faith, upon the
ground that the crime of illegal possession of a firearm and ammunition is not malum in se, but malum
prohibitum and that it, accordingly, requires neither malice nor evil purpose or intent. It should be noted,
however, that the Bataan Veterans Security Agency is duly licensed to operate as such. Consequently, it may
legally engage the service of competent persons to discharge the duties of special watchmen and security
guards, and provide them, as such, with the corresponding firearms and ammunitions. The agency is thus
supposed to obtain the license necessary therefor. Had it done so, there would be no question about the
absence of any criminal liability on the part of appellant herein for the possession of the firearm and
ammunition in question, even though the license were not in his name, but in that of the agency or its owner
and operator, Jose Forbes. Hence, the query boils down to whether or not appellant is guilty of the crime
charged owing to the failure of Jose Forbes to comply with his duty to obtain such license, before he got said
firearm and ammunition and delivered the same to his aforementioned employee.
Upon mature deliberation, the Court feels and so holds that the answer must be in the negative. The reason is
that appellant was entitled to assume that his employer had the requisite license to possess said firearm and
ammunition and to turn them over to him while he was on duty as one of the regular security guards of the
Bataan Veterans Security Agency, the same being a duly licensed security agency. As such, those dealing
with it, either as clients or as employees thereof, are entitled to presume, in the absence of indicia to the
contrary — and there were none in the present case — that it has complied with pertinent laws, rules and
regulations. What is more, Jose Forbes had told appellant that the firearm and ammunition in question were
duly licensed, and, as an employee of the agency, appellant could not be expected to demand from his
employer proof of the veracity of the latter's assertion before relying thereon.
We are not unmindful of the danger posed by the possibility or probability of abuse or misuse of the license of
security agencies to operate as such. The danger arises, however, when said license is granted improvidently,
without taking the necessary precautions therefor — prior to and subsequently to the issuance of said license
— in terms of adequate measures to see it, inter alia, that the agency is a trustworthy and responsible one;
that it is properly managed by persons possessed of the moral character necessary therefor; that only those
having the requisite qualifications are engaged as security guards; that suitable rules are adopted and
enforced governing their discipline, and the assignment, care and custody of firearms and ammunitions, as
well as the keeping of registers and the entry therein of annotations or memoranda setting forth, at all times,
the locations and/or disposition of each one of the aforementioned firearms and ammunition that the operation
of the agency is effectively supervised by the Government.
Needless to say, this decision must be deemed restricted in its application to duly licensed security agencies
and to regular security guards thereof. Moreover, the owner, manager and/or operator of the security agency,
who failed to secure the requisite license — in the case at bar, Jose Forbes, as the owner and operator of the
Bataan Veterans Security Agency — should be prosecuted for illegal possession of firearms and/or such other
crime as may have been committed in consequence of the breach of the laws and regulation above referred to.
WHEREFORE, the decision appealed from is hereby reversed and herein appellant, Ernesto Cuenca y
Cuevas, accordingly, acquitted, with costs de officio. Let a copy of this decision be served upon the City Fiscal
of Manila for appropriate action in accordance with the preceding paragraph, with due advise to this Court of
the action taken hereon. It is so ordered.
[G.R. Nos. L-13983-85. December 31, 1960.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PERLITO SOYANG and CRESENCIO
SOYANG, Defendants-Appellants.
Assistant Solicitor General Jose P. Alejandro and Solicitor Hector C. Fule for Appellee.
Alberto T. Aguja for appellants.
SYLLABUS
1. CRIMINAL LAW; ESTABLISHED FACTS SHOWING ACCUSED’S RESPONSIBILITY FOR DEATH OF
VICTIM. — The accused’s responsibility for the death of the victim in the case at bar is duly established as it is
shown that upon being arrested and placed on board the boat to be taken to P the accused must have
immediately hatched the plan to kill their captors in the process to free themselves which they succeeded
when they grappled with M when the latter tried to again tie their hands and after depriving him of his carbine
the two, or one of them, made use of it to kill him.
2. EVIDENCE; TESTIMONY OF WITNESSES WHEN GIVEN CREDENCE. — The trial court was justified in
finding that the two witnesses for the prosecution were trustworthy and creditable for there is nothing in the
evidence to show that they had any evil motive to prejudice the two accused other than to tell the truth and
vindicate their victim.
3. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; EXTENT AND SCOPE. — The possession of a
firearm which is punishable by law covers not only physical possession, but also one that is constructive
provided the element of animus possidendi is present.
DECISION
BAUTISTA ANGELO, J.:
Brothers Cresencio and Perlito Soyang were charged with murder and direct assault upon a person in
authority in two separate informations filed before the Court of First Instance of Zamboanga del Sur (Case Nos.
L-13983 and L-13984). Cresencio was further accused before the same court also in a separate information of
the crime of illegal possession of firearm and ammunition (Case No. L-13985). Upon agreement of the parties
because the offenses charged arose from related incidents, the three cases were tried jointly.
After trial the lower court found the two brothers guilty of the offenses charged and were convicted as follows:
In the murder case, they were sentenced each to suffer reclusion perpetua and to indemnify jointly and
severally, the heirs of the deceased in the sum of P3,000.00; in the case of assault, they were sentenced each
to suffer an indeterminate penalty of 4 months and 1 day of arresto mayor as minimum to 4 years 9 months
and 10 days of prision correccional as maximum, and to pay a fine of P500.00, with the corresponding
subsidiary imprisonment in case of insolvency; and in the case of illegal possession of firearm, Cresencio was
sentenced to suffer an indeterminate penalty of from 1 year as minimum to 1 year and 8 months and 1 day as
maximum. They were sentenced to pay costs in the three cases. The pistol found in possession of Cresencio
was ordered confiscated.
Not satisfied with this decision, the two brothers interposed the present appeal.
The version of the prosecution, as narrated in the brief of the Solicitor General, is as-follows: On August 1,
1957, Philippine constabulary soldiers Silvestre Bagumba and Rustico Mercoleta of the 67th company
stationed at Tacloban City departed from their camp to escort a prisoner detainee Leonardo Malinao to the
Court of First Instance of Pagadian, Zamboanga del Sur. The boat taken by them first touched Ormoc, then
Cebu, and arrived at Malangas, Zamboanga del Sur on August 6, 1957. While the boat was docked at
Malangas, soldier Mercoleta went to the market to buy fish and on his return he brought along Perlito Soyang
for whom a warrant of arrest had been issued. Perlito was placed under custody by the two soldiers and was
questioned about the whereabouts of his brother Cresencio whose apprehension was also sought by the
authorities. On being informed that Cresencio was in Tigbalogo, the two soldiers left for that place aboard the
launch "Mercedita" belonging to the Soyang brothers, which they had also been ordered to confiscate. On
failing to locate Cresencio at Tigbalogo, the two soldiers extended their search to Gapi, and on finding that
Cresencio was not to be found in that place, they returned once more to Tigbalogo. This time their search was
fruitful because Perlito was able then to lead them to his brother Cresencio who was at once placed under
arrest. When the latter was searched by the two soldiers, one Colt automatic, caliber 38, serial No. 67240, with
one ammunition, was found in his possession.
From Tigbalogo, the two soldiers proceeded back to Malangas with their prisoners and on their arrival they
went immediately to the police station with the intention of lodging their prisoners in the town jail for the night.
The police of Malangas, however, denied their request because, according to them, their jail was not safe, and
to better safeguard the prisoners, the soldiers brought them back to the launch "Mercedita." At dawn of the
following day, at three o’clock, the two soldiers, together with their prisoners, set sail for Pagadian aboard the
family launch. Before starting on their journey, however, the soldiers tied the hands of the Soyang brothers
with rope for security reasons and placed them on the prow of the boat. At about five o’clock in the morning of
August 8, 1956, prisoner detainee Malinao noticed that the Soyang brothers were already untied and so he
immediately informed soldier Bagumba about it, who immediately tried to apprise his companion, Mercoleta,
who was supposed to be watching the prisoners, but at this very instant the two brothers grappled and pushed
Mercoleta to the water, the three falling together. Bagumba at once turned the boat but before being able to do
so he heard a shot. At a distance of 50 yards from the place of the incident, Bagumba saw the Soyang
brothers, but Mercoleta has disappeared. Perlito who was then in possession of Mercoleta’s carbine fired at
the approaching boat, which Bagumba answered back with his own pistol. The latter’s firearm, however, got
jammed at the fifth shot forcing him to discontinue the fight and go to the shore of Panubigan and Pitogo
where he asked the help of the people there to look for Mercoleta and apprehend the two brothers. Among the
persons who answered the request for help were Geronico Malinao, a farmer from Pitogo, Dimataling,
Zamboanga del Sur, and Lope Velencio, a policeman from the same municipality.
On being informed of the incident, the aforesaid persons immediately boarded a small vinta and proceeded at
once to the place indicated by soldier Bagumba at the scene of the crime. On arriving at the place indicated,
Malinao and Velencio saw a man (who turned out to be Perlito) at a distance of about 50 yards swimming
towards them. The man begged to be permitted to board the boat saying that "he is the soldier and the
robbers are already dead and could not be seen." Almost at the same time, the other escapee, Cresencio,
moved stealthily towards the edge of the boat and on reaching it, capsized the same. Immediately thereafter,
the two brothers wrestled with policeman Velencio while Malinao took hold of a paddle and struck with it
Perlito on the head. As soon as both were able to free themselves from the clutches of the two brothers, the
former swam towards the shore while the latter boarded the vinta and paddled towards the opposite shore.
This untoward event, however, did not deter the police from searching for soldier Mercoleta. For three
successive days the surrounding area was meticulously combed for some traces of the missing soldier, but all
efforts exerted in this direction proved in vain.
In the meantime, Cresencio and Perlito Soyang were apprehended by the police authorities after overcoming
some difficulty. Sometime thereafter, Perlito gave a written statement before Sgt. T. S. Castro of Philippine
constabulary stationed at Pagadian, Zamboanga del Sur, which was subscribed and sworn to before Judge
Purisima of the same municipality on August 19, 1957. On the same date, Cresencio Soyang also gave a
written statement before Sgt. Rodolfo Diaz of the municipal police of Margosatubig, which was also sworn to
on August 20, 1957 before Justice of the Peace Benito P. Cinco.
The version given by the defense in exculpation of appellants appears narrated in the decision of the trial court
as follows:jgc:chanrobles.com.ph
"They are natives of Gayad, Capoocan. Leyte. They are engaged in the fishing industry. Their father owns the
equipment, like the fishnets, takle. A fast inboard motor named ‘Mercedita’ which they use in fishing belongs to
Perlito Soyang. In March, 1967 a brother of theirs, a certain Vivencio Soyang, visited them in Gayad. He came
from Margosatubig and Malangas, this province where they are residing; and he has seen the rich fishing
grounds and the profitable fishing industry thriving hereabouts. He told them of these possibilities and invited
them to come to Mindanao. So, they came — some in the FS boat and others in the motorboat ‘Mercedita’.
They are Perlito, Cresencio, Antonio Soyang, their wives, Arnulfo Soyang and members of the crew. They
arrived in Margosatubig this province in May, 1957. Perlito Soyang with his launch formed his fishing outfit.
Cresencio worked in another outfit.
"On August 6th, 1957 Perlito was in the public market of Malangas early in the morning selling fish. This was
his catch in the preceding evening. At about eleven o’clock in the morning he saw Rustico Mercoleta and
asked him why he was in Malangas. To the query the latter answered that he and his companions (another P.
C. soldier) was escorting a prisoner from Leyte to Pagadian. Mercoleta learned from Perlito that he was
returning to Margosatubig after selling the fish; and so, he asked the latter to let him ride the launch so that he
could visit an aunt of his. This was agreed. Perlito then hurried his sale, collected proceeds from his customers,
leaving those which he could not collect. He realized some P100.00 including credits. They then went to the
motorship ‘Don Sulpicio’ by which Mercoleta, his companion, a certain Silvestre Bagumba, and the prisoner,
one Leonardo Malinao came. There after the usual introduction, the soldiers and the prisoner disembarked
from the boat. Perlito even helped carry their baggages and transferred them to his launch ‘Mercedita’. They
left Malangas in the afternoon and proceeded to Margosatubig for the visit to the aunt of Mercoleta. Upon
arriving at their destination, and, after making inquiries from some persons, they were able to locate the house
of the aunt. They were treated to a light refreshment, as it was afternoon. While they were in the house of the
lady, Mercoleta called Perlito to the balcony and there the former told the latter that they brought a warrant of
arrest directed at him (Perlito) and his brother, Cresencio, for robberies committed in Calubian and Maripipi,
Leyte and Masbate, in which they were involved; but assured him, however, that they could be left unmolested
provided they paid them (soldiers) eight hundred pesos. Perlito was at first taken aback but after some
reflection, he told him (Mercoleta) that he could discuss the proposition alone without waiting for his brother.
(By the way, Mercoleta insisted in seeing Cresencio first before closing the deal with Perlito.) The latter then
said that he could raise only seven hundred pesos as that was the only amount he had. Without reaching any
decision, they left for Tigbalogo, a barrio of Margosatubig, where the Soyangs are staying. A sister, Panfila
Soyang who is married to one Cosme Espinosa, has been residing there for some time already. Cresencio
was not there. They learned that he was in Gapi, another barrio, visit a cousin, a certain Basiong or Ambrosio.
They waited for him but until evening he did not arrive. So, Vivencio was sent to Gapi in the early morning of
August seventh to fetch Cresencio. He came back at about eleven o’clock that same morning. Vivencio was
the first one to get off from their vinta to the land. Cresencio was behind because he had to put on his trousers.
Vivencio brought along the pistol which Cresencio had deposited with him since he had arrived in Malangas. It
is the same pistol which Lucilo Bracamonte gave him in Biliran for safekeeping. Thus, when Vivencio saw
Cresencio in Gapi and informed the latter that Mercoleta desired to see him, he (Cresencio) was reminded of
the pistol and thought that it was about it that he had sent for him.
"So, Vivencio delivered the pistol to Mercoleta as soon as he met him in the yard of the house of his sister,
Panfila, in Tigbalogo. Mercoleta took it apart and cleaned it and then reassembled it. He then kept it.
Cresencio followed Vivencio to the house and as he was hungry he went to the dining room and there met
Bagumba who was still eating his lunch. He joined him at the table and ate his lunch too. Bagumba asked him
if it was the pistol that Bracamonte had deposited with him and he answered in the affirmative.
"After lunch, they went to Malangas to conduct the soldiers and prisoner Leonardo Malinao in order to enable
them to get transportation to Pagadian. Their companions were, besides Perlito and Cresencio, Vivencio,
Cosme Espinosa, and others. Cresencio went because the regular pilot of the launch ‘Mercedita’ was absent
and he had to act as the latter’s replacement. Vivencio went because he was returning home to Malangas.
Cosme brought the seven hundred pesos to be given to the P.C. soldiers.
"They arrived at Malangas at two or three o’clock in the afternoon. They accompanied the soldiers and the
prisoner to the municipal building. The soldiers intended to deposit their prisoner in the local jail for
safekeeping. They were, however, told that the jail was not safe; hence, the policeman guard refused to
receive him. So, they all went to the house of Vivencio. The soldiers, Perlito, Cresencio, Cosme and Vivencio
went inside a room in the house. There, Cosme gave the seven hundred pesos to Perlito. Vivencio also gave
one hundred pesos to Perlito, thereby-completing the eight hundred pesos which was the irreducible amount
demanded by the P.C. soldiers for not arresting and taking the Soyangs to Leyte, or divulging their
whereabouts. Perlito then counted the money in the presence of the soldiers and after doing so, he gave it to
Mercoleta who in turn gave it to Bagumba. This proceeding commenced in the late afternoon and was
completed in the evening. So, before breaking up, Bagumba invited the conferees to have dinner with them at
the public market. The invitation was readily accepted; so, they went to the public market. Near the close of
the dinner Bagumba ordered beer and they started drinking. They finished three cases of beer. The P.C.
soldiers drank heavily. It was nearly midnight when they finished. Bagumba paid the bill.
"Upon inquiry, Bagumba learned that the FS Don Sulpicio had already gone and there was no other available
transportation to this Capital town of Pagadian. So, Bagumba asked Perlito to conduct them in the launch
‘Mercedita’ to Pagadian. The latter at first excused himself, saying that he had to return to Tigbalogo to fish
and it was already late. But Bagumba insisted and he would not even allow him (Perlito) to wait for the first
catch of fish, before starting for Pagadian. So, he had to go reluctantly. But before they started on the trip, two
cans gasoline and two liters of lubricating oil were purchased from the local store. It was still low tide and the
launch was aground. At about three o’clock in the dawn, the launch was afloat. The P.C. soldiers and their
prisoner who slept in the house of Vivencio nearby, went to the launch and boarded it. Cresencio was at the
steering wheel while Perlito was at the motor. Mercoleta maneuvered the boat so as to put it on its course
towards the sea. He had a pole to achieve this. They thus started on that fateful voyage in the early dawn of
August 8, 1957.
"At about five-thirty o’clock in the morning Mercoleta who was sitting on the roof of the engine cabin, called
Perlito. When the latter was before him, Mercoleta told him to accelerate the speed of boat. This was done.
Again, Perlito was called. This time Bagumba gave Mercoleta a piece of rope and ordered him to tie Perlito’s
hands. This was happening outside, on the deck of the bow of the boat. Perlito and Mercoleta were on one
side or edge of the boat. When Mercoleta thus approached Perlito with the rope, the latter was surprised at the
sudden turn in the attitude of the soldiers; and in a tone of rebuke, he told them that it was not in accord with
their previous agreement in accordance with which they already received full satisfaction of their demand.
Mercoleta replied that he could not disobey the command of Bagumba because the latter was his superior. As
he (Perlito) pulled his hand from the grip of Mercoleta both of them fell overboard because at that very
moment the boat pitched on account of the waves and they were thus thrown off balance. Mercoleta carried
his carbine, slung at his shoulder. When they were already in the water Mercoleta shouted at him to stay near
him and not to separate. However, as he (Perlito) had his regular clothes on which obstructed his swimming,
he tried instead to stay apart from the soldier; and, when he heard bullets falling around him, evidently fired
from either the boat or Mercoleta, he dove and swam on the surface alternately until he was far from
Mercoleta. He did not see him any more. The launch made two circlings in the area where they had fallen, and
then turned towards the shore. He did not know what was happening to his brother, Cresencio, in the
meantime. He continued swimming towards the shore.
"As for Cresencio, when Mercoleta and Perlito fell overboard, Bagumba went up and stood on the top of the
roof of the engine room. He then faced him and levelled his pistol at him. Thinking that Bagumba intended to
shoot him, he jumped into the sea and swam away from the launch which circled twice and then made for the
shore. He continued swimming for two hours until he heard the shout of a man calling for help; and when he
looked around, he saw a vinta with two men aboard. He swam towards it. As he approached it, he noticed for
the first time that there was also another man swimming. At a distance of some thirty brazas or less he
recognized the individual to be Perlito. Perlito was nearer the vinta than he. He heard the men aboard the boat,
calling Perlito as one of the tulisanes or bandits. One of them with a gun was levelling it at his brother but
fortunately it did not fire, notwithstanding the fact that he was pressing its trigger. The boat was being carried
by the current towards Perlito. It was then when the other passenger struck him with a paddle, hitting him in
the head. Perlito sank under water and when he surfaced, he was near the boat inside the outrigger. He was
wounded on the head and was bleeding. The man with the gun then thrust at him with the muzzle of the gun;
but before he could harm him (Perlito), held its barrel and supported himself with it, for he was fatigued and
could no longer endure the ordeal of swimming. While thus holding the barrel of the gun, the man fell
overboard, evidently carried by his (Perlito’s weight.) The man swam to the far side of the boat. By this time
Cresencio was on the other side opposite Perlito. The boat had been carried by the current towards him.
When the other passenger saw his co-passenger in the water already, he jumped into the sea and swam
towards his companion. Both of them swam towards the shore, leaving the vinta. Cresencio then got on board
and helped Perlito to get aboard also. As the latter was exhausted and could not sit erect, he lay at the bottom
of the boat at the bow. Cresencio then paddled the boat towards the mangrove swamp nearby.
"By this time the outboard motor in which Bagumba and companions were riding, raced towards them. But
they were able to reach shore first; and as it was low tide and the water was shallow, Bagumba could not
overtake the small vinta. Cresencio then ran towards the mangrove and hid himself among the trees while
Bagumba fired shots in the air. About the same time Perlito left the boat and walked towards the mangrove
and at a distance of some twenty brazas he fell to the ground, as he was still weak. While thus lying prostrate,
he heard Bagumba calling to him: ‘Dong, you surrender’ (Dong, refering to Perlito.) The latter answered: ‘Yes.
But come along. I cannot stand. Let us talk about this matter.’ Instead of capturing him or firing at him,
Bagumba got the vinta and towed it to the outboard motor boat. Then, they left.
After they had gone, he (Perlito) called his brother to help him. Cresencio came out of the mangrove and
helped him walk towards the interior of the swamp; and when they found a hallow tree, Perlito went inside and
rested there. He was able to sleep until about three o’clock in the afternoon. (Parenthetically, it should be
stated that in swimming for several hours Perlito completely shed off his clothes so that he was entirely naked,
while Cresencio also took off his clothes except his drawer. They had to do this in order to lighten themselves
and thus remain afloat for several hours.) They were feeling hungry; so, they started moving in search of food.
They followed a stream in its upper course. It led them to a patch of banana clump. They saw ripe bananas.
They wanted to get them with which to satisfy their hunger; but before doing so, Perlito told his brother to go to
a nearby house and ask its occupant to give or lend them clothes. As Cresencio approached the house, its
occupant — a man — sounded a horn (a big shell or mollusk), as if to call Moros or some people. They were
afraid. Coincidentally a woman appeared and warned them of the approach of armed people who were after
them. They then ran but before doing so, Cresencio took two pieces of sugarcane nearby and gave one to
Perlito. Perlito being still weak and unable to run, lay in a nearby mud to hide or elude the search. The men
chased Cresencio. They passed by him without seeing him. When they were gone, he stood up and chewed
the sugarcane. He waited for the men to return, with the intention of surrendering to them, if they caught
Cresencio alive. When they came, he noticed that his brother was not among them; and fearing that they
might harm him if he would surrender, he hid behind a fallen log and thus succeeded in eluding them. From
then on he did not see his brother again except in jail. Being alone, he hid in the mangrove. It rained; so, he
sought cover under a big bacauan tree and waited until evening. When it was already dark he went to a
ricefield and there found an uninhabited house. He went there to sleep. At dawn he noticed the presence of
several houses in the surrounding area. So, he left the house and went to the cogon grasses to hide. He
stayed there until dark. He then stepped out from the cogon grasses and gathered some young coconuts
which he broke and then drank the coconut water. Thus freshened, he started walking along the road until he
reached some houses and the wharf of Dimataling. Then he was looking for the municipal building, thinking
that it would be safer for him to go there and surrender than to remain in hiding. He did not find the place. On
the way he met some people who remarked: ‘That man is naked (pointing to him). What is he doing?’ At dawn
he followed the road and came near a house from which he could hear people conversing in Cebuano dialect.
Covering his private parts, he approached the house and there found an old man who took pity on him. He
was given a pair of patched trousers which he then put on. He asked to be taken to the barrio teniente —
which was done. The latter after investigating him and finding that he was one of those involved in the incident
of the drowning of the soldier, conducted him to the municipal building of Dimataling, together with some
companions. But before going to the town he (Perlito) asked the teniente to tie his hands.
"When they reached the municipal building he was placed immediately in the cell of the municipal jail. The
Mayor who was there went inside the jail and boxed him and even struck him with his revolver or pistol. Then,
the Sergeant of Police took turn to give him more punishment. Both investigated him and asked him about his
brother, Cresencio. He told them that they were separated in the swamp and he did not know where he went
after that. He was asked to confess by the Sergeant and his hands were tied. He (Perlito overheard some
people say: ‘If Lope (Velencio, the policeman) will arrive, he will cut your ears; we will cut your ears; we will
shoot you.’ Lope Velencio, however, did not come.
"The Chief of Police, a certain Cuevas, came to visit him in jail. He was friendly; they conversed with each
other and found out they have a common relative in Bogo, Cebu — a certain Panday Flores (blacksmith). So,
he was somewhat relieved, for here he found a friend to protect him. He also met Justice of the Peace,
Purisima, in the morning. He too was sympathetic towards him. He said he would introduce him to Attorney
Zulueta of Pagadian to be his lawyer. So, he wrote the latter. He (Perlito) wanted to write his brothers and
sister in Margosatubig but he had no money with which to buy writing materials. Upon knowing his need, the
Chief of Police gave him a piece of writing paper and an envelope. He wrote a letter and requested the Chief
to mail the same and to put the corresponding stamp. However, the latter never reached the hands of the
addressee. When a doctor came to treat him, he asked for a medical certificate but he not only refused but
was mad at him.
"On August 18th he was brought to the P.C. headquarters in Pagadian where he was investigated by a certain
Sergeant Castro in the afternoon. Bagumba was present during the investigation. Castro told him to state in
the affidavit that it was his brother (Cresencio) who killed Mercoleta, thus saving not only himself but also
Bagumba. Before his affidavit was taken in the afternoon he was placed in the stockade where he met other
prisoners, among them, Moros. They told him that Sergeant Castro is a cruel and sadistic investigator and he
always made the subject sign the confessions. They then taunted him to show if he (Perlito) could resist the
persuasive methods of the Sergeant. So, before noon of the 19th of August, he was taken to the residence of
Justice of the Peace Purisima in Pagadian. He was accompanied by Sergeant Castro and Corporal Bagumba.
Purisima then asked him if he would sign the affidavit (Exh. E). He answered in the negative, saying that some
of the facts narrated are not true. So, they left the Judge’s residence. Then, Sergeant Castro told Bagumba to
fetch Attorney Zulueta in his residence. When the latter arrived, they went back to Purisima’s residence. When
they were there, Zulueta asked for a copy of the affidavit so that he might read and study its contents before
Perlito would sign it. Castro replied that Attorney Zulueta could have a copy after Perlito should sign the
affidavit. The lawyer was disgusted at Castro’s proposition and left the residence of Purisima in a huff. Nothing
could be done as Perlito would not sign. So, they left again. While waiting at the road for transportation to the
P.C. headquarters, he heard Sergeant Castro remark that he was disgusted with him (Perlito) and that his time
was wasted in typewriting the affidavit and that for all of these he would let him (Perlito) pay at the
headquarters. Bagumba also observed that he too knew how to kill. After hearing these threats, he
remembered what the Moros and his other companions in jail told him about the methods of persuasion
employed by Castro, like inserting a piece of coconut midrib into one’s penis or putting paper into the urethra,
both of which operations are painful; or even submerging one into the septic tank up to one’s mouth or face —
which is just as unendurable. His resistance began to weaken and finally he surrendered and told his escorts
that he was already persuaded to sign the affidavit. So, for the third time they went back to the residence of
the Justice of the Peace Purisima. When the latter saw him he asked if he was ready to sign, to which query
he answered in the affirmative. So, without even reading the affidavit he signed it on an arm of an armchair.
Purisima did not ask him to raise his right hand as a sign of swearing to the truth of the facts stated in the said
affidavit. So, they returned to the headquarters.
"As for Cresencio, when he was pursued by the armed men, he ran into the mangrove and then climbed a tall
tree to hide. He thus eluded the pursuit. After his pursuers had gone, he looked for Perlito but after searching
for him, he could not find him. So, he moved shorewards in the hope of finding a house so that he might obtain
food. When he reached shore, he followed its course until at about eleven to midnight he reached a place
called Panaga. He awakened the occupants of a house. They opened the door and received him. He related
the incident involving him, his brother, and the P.C. soldiers. One of them offered to take him to Dimataling. He
declined the offer but instead requested them to conduct him to a place called Lunib, for from there he could
go to his brothers and get clothes. So, he was taken to Lunib; and before leaving, his Moro host even gave
him twenty centavos with which he bought bread. From there he took a trail to Gabay where his brother,
Vivencio, used to dry his fishing net. Arriving at Gabay, he waited for him; and sure enough he arrived with his
companions from fishing. He told them of his desire to go to Margosatubig to surrender to the authorities; but
he was advised against it, for the said authorities had received a telegram from Dimataling, telling them to
capture him (Cresencio) or to shoot him on sight. So, another brother, Arnulfo Soyang, conducted him to a
place called Colot in Margosatubig where he remained in hiding for three days. An old woman, a certain
Rosales, gave him food. Then he went to Gapi by water. There he stopped at his cousin’s house, a certain
Ambrosio or Bosiong. The latter was afraid to harbor him in his house. So, he made him (Cresencio) stay in a
hut in the middle of a ricefield. There he remained until he was arrested by a police patrol from Margosatubig
in the early morning of August 19th. He was taken to Margosatubig and from six o’clock in the evening he was
investigated by Sergeant Diaz of the police force of the said municipality. After the completion of the affidavit,
he was made to sign it; but before doing so he asked the Sergeant to read its contents to him, but the latter
told him that it was not necessary to do so. In the following morning he was taken to the office of the Justice of
the Peace, Attorney Benito Cinco. The Judge read it and did not bother to ask him about the said affidavit (Exh.
F). He simply signed it. He came to know of the contents of the affidavit when Attorney Fausto read it to him.
Some of the facts therein stated are not true, since the truth is the one he declared in Court. He does not know
how to read English, his attainment being only second grade in the primary school. After completing his
second grade, he ran away from his parents and went to Manila and stayed there until he was old enough and
returned to Leyte when he married in Burabud, Biliran, Leyte where he and his family resided before coming to
Mindanao.
"As for the pistol Ex. A and the ammunition (Exh. B, B-1) it was given to him by P. C. agent Lucilo Bracamonte
in Burabud, Biliran, Leyte, for safekeeping until he would come and get it back. Before coming to Mindanao,
he looked for him in order that he might return it to him (Bracamonte) but he did not find him then. And as he
was instructed by him not to deliver or surrender it to anyone, he carried it until his arrival in Malangas. There,
he met his brother, Vivencio, and placed it in his hands for safekeeping. It remained in the possession of the
latter until the morning of August 7th, when Vivencio fetched him in Gapi on request or order of Mercoleta; and,
remembering about the pistol of Bracamonte, he thought that it was for its recovery or surrender that the
soldier had sent for him. So, Vivencio brought the pistol along to Tigbalogo where Mercoleta and his
companion were; and, upon arriving there, Vivencio gave it to Mercoleta in the yard."cralaw virtua1aw library
There can be no doubt that soldier Mercoleta met death on the occasion when he and his companion
Bagumba were taking the two Soyang brothers on board the launch "Mercedita" to Pagadian, Zamboanga del
Sur in order to surrender to the authorities of that place detainee Leonardo Malinao who was then under their
custody and the two brothers after untying the rope with which their hands were tied grappled and pushed
Mercoleta to the water causing the three of them to fall at which occasion Perlito wrested the carbine which
Mercoleta had then in his possession and with it fired a shot that must have hit fatally Mercoleta who
immediately sank and disappeared. Their intention to kill did not end there for soon thereafter another shot
was heard intended for Bagumba who at the time turned the boat they were riding in order to extend succor to
his companion but missed and in order to save himself he left the two and headed for the shore where he
asked the people there to help him look for Mercoleta and apprehend the two prisoners.
That Mercoleta received a fatal shot and went to the bottom of the sea dead cannot also be doubted, for,
notwithstanding the efforts made by the local authorities to search for him for three successive days, their
efforts proved in vain. And it cannot be doubted that the ones responsible for Mercoleta’s death are the two
brothers for, upon being arrested and placed on board the boat to be taken to Pagadian, they must have
immediately hatched the plan to kill their captors in the process to free themselves which they succeeded
when they grappled with Mercoleta when he tried to again tie their hands and after depriving him of his carbine
the two, or one of them, made use of it to kill him. We have arrived at this conclusion considering that the
same finds support not only in the testimony of soldier Bagumba, who saw actually how the incident occurred,
but also in the testimony of detainee Leonardo Malinao who also witnessed the incident and who, as a matter
of fact, is the one who called the attention of Bagumba to the fact that the hands of the two prisoners had
already been untied. The trial court found these two witnesses trustworthy and creditable for there is nothing in
the evidence to show that they had any evil motive to prejudice the two brothers other than to tell the truth and
vindicate their victim.
The defense tried to show that the Soyang brothers were not under arrest; that they were merely conducting
the soldiers from Malangas to Pagadian as a favor they extended to the latter because the boat they were
riding on belonged to the Soyangs; that the soldiers for a consideration of P800.00 which they received from
the Soyang family with the understanding that they would be set free and would be allowed to escape to
Borneo, had in fact agreed to leave them, and so it cannot be pretended that on that occasion they would for
no reason grapple with soldier Mercoleta and deprive him of his life as the prosecution tried to establish. But
this claim was stubbornly denied by soldier Bagumba who considers it to be a last minute concoction to lay the
blame for the happening on the soldiers who took the Soyang brothers under arrest to the town of Pagadian.
We agree with the trial court that such attempt is of no avail for if it were true that the soldiers had actually
received the sum of P800.00 with the condition to set them free and allow them to escape, we find no valid
reason why the soldiers would still hold them under arrest and bring them to Pagadian, together with their
detainee Leonardo Malinao. It is true, as admitted by Corporal Bagumba, that the family of Soyang made an
attempt to offer money to them to settle the case of the two brothers and in order not to discourage and
disillusion them he pretended to have an open mind to give them the impression that he was amenable to the
proposal, but the corporal explained why he adopted that attitude. He said that he acted as though he was
receptive to the proposal merely as a scheme to induce the family of Soyang to take them to the place where
Cresencio was then residing to place him under arrest, and this explanation must be true as confirmed by the
subsequent conduct of the two soldiers when not only they placed the two brothers under arrest once they
were produced but had their hands tied at the back and placed on board the launch "Mercedita" when they
proceeded to Pagadian to deliver them to the authorities thereat.
The defense, however, calls the theory of the prosecution unnatural and improbable pointing out certain
portions of the testimony of the witnesses for the prosecution which, according to it, are inherently
unbelievable. For instance, the defense claims that as Perlito was arrested on sight "he would not be so stupid
as to go to a distant place in order to bring back his brother for the purpose of having him placed under arrest,
especially when he knew for a fact that said wanted brother had been eluding the authorities for a long time
already." It appears, however, that Perlito did not of his own volition undertake to lead the soldiers to the
hideout of his brother but was rather prevailed upon to do so by the two soldiers who arrested him. The record
is silent as to how the soldiers were able to persuade Perlito to lead them to his brother’s hiding place, but the
latter must have been made to realize that to continue eluding the authorities under the circumstances would
be futile as sooner or later the law will catch up with them. And, then, we have the explanation given by
Corporal Bagumba when Panfila Soyang broached to him the proposition to settle the case of her brothers by
offering him certain amount of money, that he made her understand that he had an open mind with regard to
that proposition merely to induce them to produce the person of Cresencio Soyang. This is another
circumstance that must have induced Perlito to lead the soldiers to the hideout of Cresencio hoping that once
he is produced the case of the two brothers may be amicably settled.
The defense also impugns the finding of the trial court that while the hands of the two brothers were tied by the
soldiers before they set sail to Pagadian, the hands of the other prisoner, Leonardo, Malinao, who was fetched The Solicitor General for plaintiff-appellee.
from Leyte, were not ordered tied in like manner, alleging that such act is discriminatory and unbelievable
because said detainee appears to be more dangerous than the Soyang brothers because he is a known killer.
In the first place, there is nothing in the record to show that detainee Malinao was a known killer. In the second Arturo de Leon for accused-appellants.
place, if said detainee had been accorded a different treatment by the soldiers they must have their reasons
for doing so one of them being his good behavior and deportment while he was being taken from their camp at
Ciriaco S. Cruz & Florencio Alvarez for Rolando Verchez.
Tacloban, Leyte to the municipality of Malangas, Zamboanga del Sur, which must have convinced them that
he is not a dangerous prisoner.

The defense also claims that the body of the deceased has not been recovered and so there is no clear and
positive evidence that he actually died. We cannot give much weight to this contention for the reason that,
according to the evidence, the local authorities had made every effort to search for the body of the deceased QUIASON, J.:
in the surrounding place where he sank and disappeared for a period of three days and their effort, had been
of no avail. This evidence is more than enough to prove that the unfortunate soldier had indeed died when he
was shot by the accused and disappeared in the bottom of the sea. This is an appeal from the Decision of the Regional Trial Court, Branch 19, Bacoor, Cavite in Criminal Cases
Nos. B-85-213 to B-85-216.
The defense assails the finding of the lower court that appellants are guilty of direct assault by contending that
"the grabbing and pulling of the rifle by Perlito is not the kind of force contemplated by Article 148 of the
We affirm with modification the decision of the Regional Trial Court.
Revised Penal Code." To meet this point, suffice it to quote what the trial court said on this
matter:jgc:chanrobles.com.ph
I
"Again, the version of the prosecution is more worthy of credit than that of the defense. Policeman Lope
Velencio testified that in answer to the call for help of Corporal Bagumba, he and a companion, Geruncio
Malinao, rode in a small vinta with a capacity for only two passengers; that they started from shore (barrio The Information in Criminal Case No. B-85-213, for murder reads as follows:
Pitogo) and paddled in the direction of the place indicated by the P.C. soldier where his companion and the
prisoners fell; that at about eight to nine o’clock in the morning they saw one of them (whom they later
identified to be Perlito) swimming towards them and supporting himself with a floating log; that upon being The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y
asked by the policeman who he was, he answered that he was the soldier who was dragged into the sea by BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO
the tulisanes or robbers and that he had killed both of them; that he begged to be allowed to get on board MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA and GILBERT ANG Y TAN
because he was very weak from utter exhaustion; that, however, not being sure of the identity of the swimmer, of the crime of Murder, committed as follows:
he (policeman) levelled his carbine at him and even pressed its trigger to shoot him because he kept on
coming towards them, but it would not fire; that, without warning and being unnoticed, another individual That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province
surfaced at the other side of the boat; that the latter then held the outrigger on his side and they (he and his of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-
companion) capsized it, throwing the policeman and his companion into the sea; that when they were already named accused, conspiring together, acting jointly and mutually aiding each other, with
in the water, the first one (who begged to be allowed to get on board) attacked the policeman and was joined intent to kill with treachery and evident premeditation, armed with assorted firearms,
in the assault by the other and both of them pushed him (policeman) under the water — the first even choking did, then and there, willfully, unlawfully and feloniously attack, assault and fire upon a
him; that, as he had his uniform and shoes on as well as the carbine which he was carrying, he swam deeper group of PC/INP soldiers, hitting Sgt. Monico Norcio, on different parts of his body
under the water, thus freeing himself from his enemies; that he then shed off his clothes, dropped his gun, causing his instantaneous death, to the damage and prejudice of his family (Rollo, p.
thereby lightening himself, and emerged on the surface at some distance from them; that he was joined by his 45).
companion who during the fight struck one of his attackers — the first one — on the head with a paddle; that
both of them then swam towards the shore, leaving the capsized vinta to his assailants; that the accused then
floated it and rode on it towards the shore; that they (policeman and companion) were picked up by fishermen The information in Criminal Case No. B-85-214 for frustrated murder, reads as follows:
at about eleven o’clock in the morning."

Finally, we find untenable the claim of appellant Cresencio that he cannot be held guilty of illegal possession
of firearm because the firearm found in his possession did not belong tb him but to an agent of the Philippine
constabulary named Lucito Bracamonte and he merely kept it for safekeeping, for even if the same were true it
will not exculpate him from liability. The possession of a firearm which is punishable by law covers not only
physical possession but also one that is constructive provided the element of animus possidendi is present.
The absence of this element must be clearly established and here appellant Cresencio failed to do so.
It appearing that the decision of the trial court is in accordance with law and the evidence, we are persuaded
to affirm the same, with costs against appellants.
Wherefore, the decision-appealed from is affirmed, with costs.
G.R. Nos. 82729-32 June 15, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO VERCHEZ Y BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA,
ALFREDO MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA, & GILBERT ANG Y TAN, accused.
The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y
BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO
MAMUNTAG Y ZUNIGA AND GILBERT ANG Y TAN of the crime of FRUSTRATED
MURDER, committed as follows:
That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province
of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring together, acting jointly and mutually aiding each other, with
intent to kill, with treachery and evident premeditation, armed with assorted firearms,
did then and there, willfully, unlawfully, and feloniously attack, assault and fire upon a
group of PC/INP soldiers, hitting P/Cpl. David Noora, on different parts of his body,
accused having performed all the acts of execution which would produce the crime of
MURDER as a consequence but which did not produce it by reason of causes
independent of his will, that is due to the able and timely medical assistance rendered
to him which prevented his death, to the damage and prejudice of said P/Cpl. David
Noora (Rollo, p. 44).
The Information in Criminal Case No. B-85-215, for frustrated murder, reads as follows:

ROLANDO VERCHEZ y BALANE and ROMEO ALDAVE y TATAD, accused-appellants.

 The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y
BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO
MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA AND GILBERT ANG Y TAN
of the crime of FRUSTRATED MURDER, committed as follows:
That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province
of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring together, acting jointly and mutually aiding each other, with
intent to kill, with treachery and evident premeditation, armed with assorted firearms,
did, then and there, willfully, unlawfully and feloniously attack, assault and fire upon a
group of PC/INP soldiers, hitting PFC Wilfredo Pagsanjan, on different parts of his
body, accused having performed all the acts of execution which would produce the
crime of MURDER as a consequence but which did not produce it by reason of causes
independent of his will, that is due to the able and timely medical assistance rendered
to him which prevented his death, to the damage and prejudice of said PFC Wilfredo
Pagsanjan (Rollo, pp. 44-45).
The Information in Criminal Case No. 85-216, for illegal possession of firearms and ammunitions, reads as
follows:
The undersigned Assistant Provincial Fiscal accuses ROLANDO VERCHEZ Y
BALANE, ROMEO ALDAVE Y TATAD, VIRGILIO BALANE Y ZAPANTA, ALFREDO
MAMUNTAG Y CRUZ, HECTOR MAMUNTAG Y ZUNIGA AND GILBERT ANG Y TAN
of the crime of ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS,
committed as follows:
That on or about the 15th day of August, 1985, in the Municipality of Bacoor, Province
of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring together, acting jointly and mutually helping each other, did,
then and there, willfully, and unlawfully and feloniously have in their possession,
custody and control the following firearms to wit:
1. One (1) Armalite Rifle M16 with SN-041868
2. One (1) Baby Armalite Rifle M16 with SN-123658
3. One (1) Cal. 45 Pistol Remington with SN-2228779
4. One (1) Revolver Cal. 38 Remington with defaced serial number
5. One (1) Shotgun CA12 Squire Bingham with defaced serial number without first
securing and obtaining the necessary licenses and permits from competent authority,
to the damage and prejudice of the government.
A shoot-out between elements of the Special Operations Group of the Philippine
Constabulary and suspected bank robbers on August 15, 1985 in Bacoor, Cavite,
resulted to the death of a police officer and injuries to two other officers (Rollo, pp. 45-
46).
Upon arraignment, all the accused pleaded not guilty to the crimes charged. Trial then ensued.
The trial court rendered a decision on December 28, 1987, disposing as follows:
WHEREFORE, foregoing considered, the Court finds:
1. In Crim. Case No. B-85-213, accused ROLANDO VERCHEZ and ROMEO ALDAVE,
beyond reasonable doubt GUILTY of the crime of MURDER for the death of Sgt.
Monico Norcio and after considering the aggravating circumstance in disregard of the
respect due the offended party on account of his rank hereby sentences said accused
to a penalty of reclusion perpetua and to indemnify the heirs of Sgt. Monico Norcio in
the amount of Thirty Thousand (P30,000.00) Pesos, moral damages of Ten Thousand
(P10,000.00) Pesos and exemplary damages of Five Thousand (P5,000.00) Pesos;
2. In Crim. Case No. B-85-214, accused ROLANDO VERCHEZ and ROMEO ALDAVE,
beyond reasonable doubt GUILTY of the crime of FRUSTRATED MURDER and after
considering the aggravating circumstance in disregard of the respect due the offended
party on account of his rank, hereby sentences said accused to a penalty ranging from
8 years of prision mayor as minimum to 14 years, 10 months and 21 days of reclusion
temporal as maximum;
3. In Criminal Case No. B-85-216, accused ROLANDO VERCHEZ and ROMEO
ALDAVE beyond reasonable doubt GUILTY of VIOLATION of SECTION 1 OF
PRESIDENTIAL DECREE NO. 1866 resulting to Murder and hereby sentences said
accused to suffer a penalty of reclusion perpetua;
4. In Criminal Case No. B-85-215, accused ROLANDO VERCHEZ and ROMEO
ALDAVE are ordered ACQUITTED;
5. Accused VIRGILIO BALANE, HECTOR MAMUNTAG and ALFREDO MAMUNTAG
in Crim. Cases Nos. B-85-213 (Murder); B-85-214 and 215 (Frustrated Murder) and B-
85-216 for Illegal Possession of Firearms are ordered ACQUITTED of the charge.
Accused VERCHEZ and ALDAVE are ordered to pay the proportionate cost.
The promulgation of judgment of the charge against GILBERT ANG considering his
absence today, notice duly served personally by the process server of this Court and
on January 29, 1988 is ordered cancelled and to be included in the calendar of the
Court soon (sic) upon his arrest or when he submits to the jurisdiction of the Court.
The firearms involved are ordered confiscated in favor of the government and to be
disposed of in accordance with law. The car (Toyota) confiscated from accused Romeo
Balane (sic) is ordered returned to the lawful owner (Rollo, pp. 84-85).
Defendants Rolando Verchez and Romero Aldave interposed the instant appeal, assailing the trial court’s
decision in Criminal Cases Nos. B-85-213 (Murder), B-85-214 (Frustrated Murder) and B-85-216 (Violation of
P.D. 1866) (Rollo, pp. 165-187, 217-304).
II
On August 15, 1985, Capt. Raul Castaneda and Lt. Marcelo Garbo of the Special Operations Group (SOG) of
the Central Organized Crime Task Force of the Philippine Constabulary/Integrated National Police (PC/INP)
led a team of government agents in conducting a surveillance operation on a house reported to be the hideout
of a gang of suspected bank robbers at Queen's Row Subdivision, Barangay Molino, Bacoor, Cavite. When a
blue Toyota car came out of the subdivision, the government agents stopped it and introduced themselves to
the driver of the car as police officers. Virgilio Balane, the driver, identified himself as a member of the PC.
Balane was prevailed upon into accompanying the government agents to the house where his companions
were staying (TSN, February 12, 1986, p. 4). The government agents, together with Balane, then proceeded
to the house in four cars. In the first car were Sgts. Sangel and Monico Norcio followed by the car driven by Lt.
Marcelo Garbo. The third car was driven by Capt. Castaneda while the fourth car was occupied by Sgt. Gana,
Cpl. David Noora and Balane. When the first car approached the house, the lawmen were met by a heavy
volley of gunfire. The police disembarked from their vehicles and after seeking cover, shouted to the
occupants of the house that they were members of the PC. The occupants of the house responded with
another barrage of bullets. As the government agents returned fire, a fire fight ensued. Three of the lawmen
were hit. Sgt. Norcio died on the spot, while Cpl. Noora and Pfc. Wilfredo Pagsanjan sustained injuries but
survived.
Lt. Garbo sought reinforcement from the Bacoor Police Department upon instructions of Capt. Castaneda. He
returned with about ten lawmen, who were deployed around the hideout. The fire fight resumed. With Balane
in tow, Capt. Castaneda then approached the house, and negotiated for the surrender of its occupants.
The men inside the house eventually surrendered, throwing their firearms outside the gate (TSN, January 14,
1986, p. 6). They were later identified as Rolando Verchez, Romeo Aldave, Alfredo Mamuntag, Hector
Mamuntag and Gilbert Ang. Confiscated from them were one (1) baby Armalite rifle (Serial No. 123658), one
(1) Armalite rifle (Serial No. 041868), one (1) cal. 45 Remington Pistol (Serial No. 222879) with ammunition,
one (1) revolver, cal. .38 Squire Bingham (with defaced serial number) and empty shells of a .38 caliber pistol,
one (1) shotgun 12 gauge (with defaced serial number) and five cartons of M-16 ammunitions. The police,
likewise, recovered 114 empty shells of Armalite rifle bullets.
The accused were brought to the SOG headquarters at Camp Crame, Quezon City for investigation. With the
assistance of Atty. Leopoldo de la Rosa, they executed their respective sworn statements (TSN, March 21,
1986, pp. 4-5). Verchez, Aldave and Balane admitted being involved in several bank heists. They, likewise,
admitted that Verchez fired the first shot at the policemen, which triggered the gun battle (Exhs. "J" - "L"). All of
them were then subjected to paraffin tests, the results of which (Exh. "P") showed Balane, Aldave and
Verchez to be positive for nitrates while there were no traces of nitrates found from Ang, Alfredo and Hector
Mamuntag.
The Firearms and Explosives Unit of the PC issued a certification (Exh. "F") to the effect that the confiscated
firearms were unregistered and unlicensed. The firearms were likewise submitted to the PC Crime Laboratory
for ballistics examination. The report of the examination concluded that:
xxx xxx xxx
1. The .223 cal. fired cartridge cases marked "EM-1" to "EM-73" were fired from the
above-mentioned .223 cal. Armalite Rifle with Serial No. 041868, while those marked
"EM-79" to "EM-114" were fired from .223 cal. Armalite Rifle with Serial No. RP-123658.
2. The .45 cal. fired cartridge cases marked "EM-1" to "EM-5" were fired from the
above-mentioned .45 cal. Remington Rand Pistol with Serial No. 2228779 (Rollo, p.
334).
Dr. Desiderio Moraleda of the PC Crime Laboratory, who conducted an autopsy on the cadaver of Sgt. Norcio,
found the latter's cause of death as "cardio-respiratory arrest due to shock and hemorrhage as a result of
gunshot wound of the trunk" (Exh. "W").
III
According to the defense, Verchez invited Balane on August 15, 1985 to visit his brother, who was then living
in Queen's Row Subdivision, Bacoor, Cavite. On their way, the two chanced upon Aldave, a "compadre" of
Verchez' brother, who joined them. They arrived at their destination at about 2:30 P.M. but found that Verchez'
brother was not at home. However, they saw Alfredo Mamuntag, the caretaker of the house, Alfredo's son,
Hector, and Gilbert Ang, who were then visiting with Alfredo.
Verchez decided to wait and drink liquor at the yard. At about 3:00 P.M., Balane drove away to buy cigarettes
and "pulutan." He had not driven far when a car blocked his way, with the occupants pointing their firearms at
him. Then another car arrived. One of the passengers from the second car approached Balane and frisked
him. Thereafter he was dragged out of the car, handcuffed and blindfolded. After he was boxed on the face
and stomach, he was pushed inside a car.
Verchez saw several cars stop in front of the house. Men in civilian clothes with firearms alighted from the cars.
One of the men ordered him to open the door. Suddenly, he heard a gunshot and Aldave, who was then at the
back of the house, shouted that someone took a shot at him. After the two ran inside the house, they heard
more gunshots.
Verchez got a loaded M-16 Armalite rifle from one of the rooms and fired back at his attackers. Aldave looked
around and found an Armalite rifle. He also fired back.
Balane, still blindfolded and handcuffed, was ordered by Capt. Castaneda to advise his companions to
surrender. Hence, he shouted, "Sumuko na kayo si Vic ito." However, someone also shouted "Huwag na
kayong sumurender, papatayin nalang namin kayo."
The firing continued for 15 minutes, after which the police were able to enter the house. Verchez and Aldave,
together with the other occupants of the house, surrendered and were brought to Camp Crame.
Verchez and Aldave claimed that at Camp Crame, they were tortured into admitting participation in several
bank robberies. They were forced into signing a prepared statement confessing their illegal activities, including
having engaged the police officers in a fire fight on August 15, 1985.
In assailing the judgment convicting them, appellants contend that the court a quo erred in: (1) giving faith and
credence to the testimonies of Capt. Castaneda, Lt. Garbo and Sgt. Norcio regarding the encounter between
the government agents and appellants; (2) admitting in evidence these extrajudicial statements in violation of
Section 12(3), Article III of the Constitution; and (3) considering against them the aggravating circumstance of
disregard of respect due the offended party on account of his rank.
Well-settled is the rule that findings of the trial court pertaining to the credibility of a witness are entitled to
great respect since it had the opportunity to examine his demeanor as he testified on the witness stand.
Therefore, it could discern if such witness was telling the truth or not (People v. De Guzman, 216 SCRA 754
[1992]).
In giving faith and credence to the version of the police officers, the trial court held:
On the other hand, the evidence against accused Rolando Verchez and Romeo Aldave
was sufficient to hold both accused liable of the crimes imputed against them. The
Court cannot give credence to their claim that when the car of the lawmen stopped in
front of the house and without warning, the lawmen fired the initial volley of fires which
were directed at the house occupants. In the first place, there is no showing that Capt.
Raul Castaneda saw the persons inside the house in order to be sure of their target.
Secondly, Capt. Castaneda and his men were not definite (sic) of the identity of the
persons in the house; and thirdly, there was no motive, reason or justification for Capt.
Castaneda, an experienced military combat officer having been assigned in the
battlefronts in Mindanao and in the province of Cagayan, to order his men to discharge
their firearms indiscriminately (Rollo, pp. 227-228).
To our mind, the issue of whether or not the extra-judicial confessions of appellants are admissible against
them is not material. As the trial court correctly ruled, there is sufficient evidence, independent of their
confessions, to hold appellants guilty beyond reasonable doubt for the death of Sgt. Norcio and for the injuries
sustained by Cpl. Noora.
Anent the claim of appellants that they were tortured and maltreated by the apprehending lawmen, as well as
by the crime investigators, no evidence was ever presented by appellants to support it.
However, while we are adopting the factual findings of the court a quo, we are not inclined to agree with its
conclusions.
In convicting appellants of murder, the trial court ruled that the killing of Sgt. Norcio was qualified by treachery
as the firing of the guns was sudden and unexpected (Rollo, p. 39). We find, however, that treachery was not
sufficiently established.
For the qualifying circumstance of treachery to be present, two conditions must concur: (a) the employment of
means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) that
said means of execution was deliberately or consciously adopted (People v. Dela Cruz, 207 SCRA 632 [1992]).
The lawmen, knowing that they were dealing with a gang of bank robbers, were prepared for any resistance
that may possibly be put up. They even brought along with them Balane to facilitate the surrender of
appellants. The casualties on the lawmen's side were suffered only after the first volley of fire came from the
side of appellants and after the lawmen had left their vehicles and taken cover. In short, Sgt. Norcio was killed
and Cpl. Noora was wounded during, and not before the gun battle.
There is no showing that appellants deliberately and consciously adopted their mode of attack. Neither is there
any showing that they planned to ambush the lawmen, much less that they knew that the lawmen were
coming. What is apparent is that appellants were caught by surprise by the lawmen, hence, acting on the spur
of the moment, they fired back.
Absent the qualifying circumstance of treachery, appellants can only be convicted of homicide for the death of
Sgt. Norcio and frustrated homicide for the wounding of Sgt. Noora.
The aggravating circumstance of disregard of the respect due the offended party on account of his rank is,
likewise, unavailing. There is no showing that appellants deliberately intended to offend or insult the rank of
the victim, which is the essence of said aggravating circumstance. This is so because the raiding police
officers were not even in uniform.
The penalty for homicide is reclusion temporal (Revised Penal Code, Art. 249) which should be imposed in its
medium period since neither aggravating nor mitigating circumstances were proven in this case. Applying the
Indeterminate Sentence Law, appellants shall suffer the penalty of twelve (12) years of prision mayor as
minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum.
Following recent case law, the indemnity for Sgt. Norcio's death should be P50,000.00 (People v. Simon, 209
SCRA 148 [1992]).
For committing frustrated homicide, appellants should be meted a penalty one degree lower than that
prescribed by law for the consummated homicide (Revised Penal Code, Art. 250) or prision mayor medium,
there being no aggravating or mitigating circumstances attendant in the commission of the crime. With the
application of the Indeterminate Sentence Law, the proper penalty should be six (6) years of prision
correccional as minimum to ten (10) years of prision mayor as maximum.
Appellants' contention that the trial court erred in convicting them of illegal possession of firearms must also
fail. Their contention is premised on the allegations that: (1) they used the firearms in legitimate self-defense;
and (2) they did not own the firearms and their possession of the same "was for a fleeting moment only and
the firearm was not subject to his control and management" (Rollo, pp. 215-218).
Section 1 of P.D. No. 1866 states that:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunitions 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.
This provision of law is clear. What is penalized in the first paragraph is the act of a person who shall, among
others, "unlawfully possess any firearm . . . (or) ammunition . . . " The possession of a firearm becomes
unlawful when there is no permit or license for its holding. The law does not prescribe a minimum period of
time for the holding of the firearm before its possession can be illegal.
Appellants' allegation that they did not have control or management of the firearms is without merit. The
records show that they knew where to find the firearms. Both Verchez and Aldave testified that they sought
cover inside separate bedrooms when the lawmen fired at them. Thereafter, they retrieved the firearms from
the cabinet in their respective rooms. Their story that their finding of firearms in the cabinets was a
happenstance is simply incredible and not deserving the slightest consideration of this Court.
However, the trial court erred in finding appellants guilty of violating of Section 1 of P.D. No. 1866 "resulting to
murder," and in sentencing said accused to suffer a penalty of reclusion perpetua (Rollo, p. 84).
It is true that under paragraph 2 of Section 1 of P.D. No. 1866, the penalty of death shall be imposed if
homicide or murder is committed with the use of an unlicensed firearm. This qualifying circumstance must,
however, be alleged in the information, which was not done in Criminal Case No. B-85-216.
In People v. Tiozon, 198 SCRA 368 (1991) we held that because homicide or murder is a circumstance which
increases the penalty under Section 1 of P.D. No. 1866, said crime qualifies the offense. The Court added:
. . ., 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."
The law imposes the penalty of reclusion temporal maximum or 17 years, 4 months and 1 day to reclusion
perpetuafor the unqualified offense of illegal possession of firearms. There being neither aggravating nor
mitigating circumstances, the penalty which shall be imposed is the medium period or 18 years, 8 months and
1 day to 20 years of reclusion temporal (Revised Penal Code, Arts. 64 and 65). Applying the Indeterminate
Sentence Law, the minimum penalty that can be imposed is from 17 years, 4 months 1 day to 20 years
of reclusion temporal. Under the said law, as amended by Act. No. 4225, "if the offense is punished by any
other law (than the Revised Penal Code or its amendments), the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same."
WHEREFORE, the appealed Decision is AFFIRMED, with the following modifications:
1. In Criminal Case No. B-85-213, appellants are found GUILTY beyond reasonable doubt of Homicide and
are SENTENCED to ten (10) years of prision mayor as minimum to fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal as maximum.
Appellants shall jointly and severally indemnify the heirs of Sgt. Monico Norcio in the amount of fifty thousand
pesos (P50,000.00).
2. In Criminal Case No. B-85-214, appellants are found GUILTY beyond reasonable doubt of Frustrated
Homicide and are SENTENCED to three (3) years of prision correccional as minimum to eight (8) years and
one (1) day ofprision mayor as maximum.
3. In Criminal Case No. B-85-216, appellants are found GUILTY of Violation of P.D. 1866 (Illegal Possession
of Firearms) and are SENTENCED to seventeen (17) years, four (4) months and one (1) day as minimum to
twenty (20) years of reclusion temporal as maximum.
These penalties shall be served by appellants in accordance with Article 70 of the Revised Penal Code.
SO ORDERED.
[G.R. No. 131592-93. February 15, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN CASTILLO y LUMAYRO, accused-
appellant.
DECISION
PUNO, J.: JPUNO
With the passage of Republic Act No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or
homicide is now considered, not as a separate crime, but merely a special aggravating circumstance.
In the case at bar, appellant JULIAN CASTILLO y LUMAYRO was charged with Murder and Illegal
Possession of Firearms in two (2) separate Informations, thus:
Criminal Case No. 45708:
"That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and
within the jurisdiction of this Court, armed with a handgun, with deliberate intent and
without justifiable motive, with evident premeditation, by means of treachery and with a
decided purpose to kill, did then and there wilfully, unlawfully and criminally shoot, hit
and wound Rogelio Abawag with the said gun, with which herein accused was then
provided at the time, thereby causing upon said Rogelio Abawag bullet wounds on vital
parts of his body, which caused his instantaneous death.
"CONTRARY TO LAW."[1]
Criminal Case No. 45709: HTML
"That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and
within the jurisdiction of this Court, said accused, with deliberate intent and without
justifiable motive, have in his possession and control one (1) Homemade .38 caliber
revolver without serial number (and) three (3) live ammunitions without the authority
and permit to possess or carry the same.
"CONTRARY TO LAW."[2]
The scene of the crime was the then on-going construction site of Gaisano Building in Lapaz, Iloilo City. On
November 14, 1995, at about 8 a.m., ROBERTO LUSTICA, a construction worker, was on the last rung of the
stairs on the third floor of the Gaisano building when he saw his co-worker ROGELIO ABAWAG being closely
pursued by accused JULIAN CASTILLO, a lead man in the same construction site. During the chase, the
accused pointed a gun at Abawag and shot him. Abawag, then about a half meter away from the accused, fell
on his knees beside a pile of hollow blocks.[3]
FRANKLIN ACASO, a mason working on the third floor of the Gaisano building, heard the first shot. Initially,
he did not pay attention to it as he thought that the sound came from one of their construction equipments.
Seconds later, he heard a second shot and a person screaming: "Ouch, that is enough!" When he looked
towards the direction of the sound, he saw the accused in front of Abawag, about a meter away, pointing a .38
caliber revolver at the latter. Abawag was then leaning on a pile of hollow blocks, pleading for mercy. The
accused shot Abawag a third time despite the latter's imploration. The accused then fled, leaving Abawag
lifeless.[4]
The management of Gaisano reported the shooting incident to the police authorities who immediately rushed
to the scene of the crime. JUN LIM, alias "Akoy," brother-in-law of the victim and also a construction worker at
the Gaisano, volunteered to go with the police and assist them in locating the accused. yacats
The police, accompanied by Akoy, proceeded to Port San Pedro where they saw the accused on board a
vessel bound for Cebu. When they boarded the vessel, Akoy positively identified the accused to the police as
the assailant. The accused attempted to escape when the police identified themselves but the police caught
up with him. Upon inquiry, the accused denied complicity in the killing of Abawag. The police found in his
possession a .38 caliber handmade revolver, three (3) empty shells and three (3) live ammunitions. Further
inquiry revealed that the accused owned the gun but had no license to possess it. The police then took the
accused into custody and charged him for the murder of Abawag and for illegal possession of firearm.[5]
The self-defense theory hoisted by the accused who testified solely for the defense was not given credence by
the trial court. Thus, he was convicted of Homicide, as the prosecution failed to prove the alleged qualifying
circumstances of evident premeditation and treachery, and of Illegal Possession of Firearm, aggravated by
homicide. The trial court disposed as follows:
"WHEREFORE, premises considered and finding the accused guilty of the crimes of
homicide and illegal possession of firearm aggravated by homicide beyond the shadow
of the doubt, he is hereby sentenced as follows:
"1) For the crime of homicide, he is sentenced to an
indeterminate penalty of imprisonment of Twelve (12) years
of prision mayor, as minimum, to Seventeen (17) years and
Four (4) months of reclusion temporal, as maximum;
"2) For illegal possession of firearm which is aggravated by
homicide, he is sentenced to a penalty of death;
"3) To pay the family of his victim P50,000.00 as indemnity and
another P50,000.00 as moral damages; and
"4) To pay the cost.
"SO ORDERED."[6] (emphasis supplied)
On automatic review by this Court, appellant impugns solely his conviction for illegal possession of firearm for
which he was sentenced to the supreme penalty of death.
Prefatorily, we stress that although the appellant himself does not refute the findings of the trial court regarding
the homicide aspect of the case, the Court nevertheless made a thorough examination of the entire records of
the case, including the appellant's conviction for homicide, based on the settled principle that an appeal in
criminal cases opens the entire case for review. Our evaluation leads us to conclude that the trial court's ruling
on the homicide aspect is clearly supported by the records. Thus, we shall concentrate on the appellant's lone
assignment of error with respect to his conviction for the crime of illegal possession of firearm. olanski
P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by
Republic Act 8294. 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.[7] 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.[8]
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.[9] 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 is homicide, 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.
The appellant anchors his present appeal on the assertion that his conviction was unwarranted as no proof
was adduced by the prosecution that he was not licensed to possess the subject firearm. In their Manifestation
and Motion in lieu of Appellee's Brief, the Solicitor General joined cause with the appellant.[10] haideem
We agree.
Two (2) requisites are necessary to establish illegal possession of firearms: first, the existence of the subject
firearm, and second, the fact that the accused who owned or possessed the gun did not have the
corresponding license or permit to carry it outside his residence. The onus probandi of establishing these
elements as alleged in the Information lies with the prosecution.[11]
The first element -- the existence of the firearm -- was indubitably established by the prosecution. Prosecution
eyewitness Acaso saw appellant shoot the victim thrice with a .38 caliber revolver.[12] Appellant himself
admitted that he did not turn over the gun to the security guards in the building after the shooting.[13] The same
gun was recovered from the appellant and offered in evidence by the prosecution. However, no proof was
adduced by the prosecution to establish the second element of the crime, i.e., that the appellant was not
licensed to possess the firearm. This negative fact constitutes an essential element of the crime as mere
possession, by itself, is not an offense. The lack of a license or permit should have been proved either by the
testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused was
not a licensee of the subject firearm[14] or that the type of firearm involved can be lawfully possessed only by
certain military personnel.[15]Indeed, if the means of proving a negative fact is equally within the control of each
party, the burden of proof is on the party averring said negative fact. As the Information alleged that the
appellant possessed an unlicensed gun, the prosecution is duty-bound to prove this allegation. It is the
prosecution who has the burden of establishing beyond reasonable doubt all the elements of the crime
charged, consistent with the basic principle that an accused is presumed innocent until proven guilty.[16] Thus,
if the non-existence of some fact is a constituent element of the crime, the onus is upon the State to prove
this negative allegation of non-existence.[17] kirsten
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 appellant's lack of license or permit to possess the gun. In People vs.
Solayao,[18]we expounded on this doctrine, thus:
"x x x (b)y 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 but does not stand as proof of the fact of absence or lack of a
license." (emphasis supplied) CODES
Additionally, as pointed out by both the appellant and the Solicitor General, the extrajudicial admission was
made without the benefit of counsel. Thus, we hold that the appellant may only be held liable for the crime of
simple homicide under Article 249 of the Revised Penal Code.
We come now to the penalty. The crime of homicide is penalized by reclusion temporal.[19] There being no
aggravating or mitigating circumstance attendant to the commission of the crime, the penalty of reclusion
temporal shall be imposed in its medium period, i.e., from fourteen (14) years, eight (8) months and one (1)
day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, the imposable
penalty shall be within the range of prision mayor, i.e., from six (6) years and one (1) day to twelve (12) years,
as minimum, to reclusion temporal in its medium period of from fourteen (14) years, eight (8) months and one
(1) day to seventeen (17) years and four (4) months, as maximum.
IN VIEW OF THE FOREGOING, the assailed Decision is MODIFIED. Appellant Julian Castillo y Lumayro is
found guilty of Homicide. He is sentenced to imprisonment of from nine (9) years and four (4) months of
prision mayor as minimum to sixteen (16) years, five (5) months and nine (9) days of reclusion temporal as
maximum. However, the civil indemnity and moral damages awarded by the trial court to the heirs of the victim
in the total amount of one hundred thousand (P100,000.00) pesos are affirmed.
SO ORDERED.
G.R. No. 96177 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.
ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990,1 of the
Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of
Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of
1972.
The information filed on December 15, 1989 against the appellant reads:
That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully,
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing
dried marijuana leaves, knowing the same to be a prohibited drug.
CONTRARY TO LAW.2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics
Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made
against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who
was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document
Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional Command (RECOM) 9. The
evidence of the prosecution was summarized by the trial court as follows:
Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus
Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian,
Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a
certain Mari Musa of Suterville, Zamboanga City. Information received from civilian
informer was that this Mari Musa was engaged in selling marijuana in said place. So
Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a
NARCOM civilian informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried
marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned
over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga
inspected the stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt.
Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00
(with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali
Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh.
"L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up security. A pre-
arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he
had succeeded to buy the marijuana. The two NARCOM teams proceeded to the target
site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader,
Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest
of the NARCOM group positioned themselves at strategic places about 90 to 100
meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani
and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out
of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani
gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa
went back to his house and came back and gave Amado Ani two newspaper wrappers
containing dried marijuana. Ani opened the two wrappers and inspected the contents.
Convinced that the contents were marijuana, Ani walked back towards his companions
and raised his right hand. The two NARCOM teams, riding the two civilian vehicles,
sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his
house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later
came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team
returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife,
slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the
P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and
he told the NARCOM team he has given the money to his wife (who had slipped away).
Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in
the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM
office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped
marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari
Musa gave his true name — Mari Musa. T/Sgt. Jesus Belarga turned over the two
newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped
marijuana (bought at the test-buy) and the plastic bag containing more marijuana
(which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime
Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana
specimen to the PC Crime Laboratory was by way of a letter-request, dated December
14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory
(Exh. "B-1") on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her three tests. All
submitted specimens she examined gave positive results for the presence of marijuana.
Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-
89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5"). Mrs.
Anderson identified in court the two newspaper wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight of each specimen
written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the
one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989,
through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report
(Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his
initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on
Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked money (with
SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to
the PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the
stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").4
For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R.
Musa, his wife. The trial court summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at
Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his
one-year old child, a woman manicurist, and a male cousin named Abdul Musa. About
1:30 that afternoon, while he was being manicured at one hand, his wife was inside the
one room of their house, putting their child to sleep. Three NARCOM agents, who
introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari
Musa's house whose door was open. The NARCOM agents did not ask permission to
enter the house but simply announced that they were NARCOM agents. The NARCOM
agents searched Mari Musa's house and Mari Musa asked them if they had a search
warrant. The NARCOM agents were just silent. The NARCOM agents found a red
plastic bag whose contents, Mari Musa said, he did not know. He also did not know if
the plastic bag belonged to his brother, Faisal, who was living with him, or his father,
who was living in another house about ten arms-length away. Mari Musa, then, was
handcuffed and when Mari Musa asked why, the NARCOM agents told him for
clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at
Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by
one NARCOM agent which investigation was reduced into writing. The writing or
document was interpreted to Mari Musa in Tagalog. The document stated that the
marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa
refused to sign because the marijuana did not belong to him. Mari Musa said he was
not told that he was entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and
his fingers were pressed which felt very painful. The NARCOM agents boxed him and
Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was
outside the NARCOM building. The very day he was arrested (on cross-examination
Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by
three NARCOM agents. The fiscal asked him if the marijuana was owned by him and
he said "not." After that single question, Mari Musa was brought to the City Jail. Mari
Musa said he did not tell the fiscal that he had been maltreated by the NARCOM
agents because he was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had given to
his wife. He did not sell marijuana because he was afraid that was against the law and
that the person selling marijuana was caught by the authorities; and he had a wife and
 a very small child to support. Mari Musa said he had not been arrested for selling
marijuana before.5
After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt
of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is
sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed
without subsidiary imprisonment.6
In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the
credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the
buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or
vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of marijuana by the
appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-
buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter.7 He
reported the successful operation to T/Sgt. Belarga on the same day.8 Whereupon, T/Sgt. Belarga conducted
a conference to organize a buy-bust operation for the following day.9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and
a certain Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian
Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members
were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be
used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places.11 Sgt. Ani
approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him
for some more marijuana.12 Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house
and brought back two paper wrappers containing marijuana which he handed to Sgt. Ani.13 From his position,
Sgt. Ani could see that there were other people in the house.14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of
raising his right hand.15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the
arrest. The agents searched the appellant and unable to find the marked money, they asked him where it was.
The appellant said that he gave it to his wife.16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust
operation, which resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be
direct, lucid and forthright. Being totally untainted by contradictions in any of the material points, it deserves
credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not know each
other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the
appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter
to sell more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has
held that what matters is not an existing familiarity between the buyer and the seller, for quite often, the parties
to the transaction may be strangers, but their agreement and the acts constituting the sale and delivery of the
marijuana.17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant
to sell marijuana while his wife, cousin and manicurist were present. But the place of the commission of the
crime of selling prohibited drugs has been held to be not crucial18 and the presence of other people apart from
the buyer and seller will not necessarily prevent the consummation of the illegal sale. As the Court observed
in People v. Paco,19 these factors may sometimes camouflage the commission of the crime. In the instant
case, the fact that the other people inside the appellant's house are known to the appellant may have given
him some assurance that these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The
appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the
appellant, he could not have possibly witnessed the sale. The appellant invokes People v.
Ale20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between
marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt.
Belarga allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani
can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his companion
were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the
appearance of the cigarette sticks. The Court rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the prosecution witnesses
marked as they are with contradictions and tainted with inaccuracies.
Biñan testified that they were able to tell that the four cigarettes were marijuana
cigarettes because according to him, the rolling of ordinary cigarettes are different from
those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done on
those cigarettes from the distance where they were observing the alleged sale of more
or less 10 to 15 meters.21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over
marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The
relevant portion of T/Sgt. Belarga's testimony reads:22
Q Now, do you remember whether Sgt. Ani was able to reach
the house of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt.
Lego, Sgt. Biong were boarded, I saw that Sgt. Ani proceeded
to the house near the road and he was met by one person and
later known as Mari Musa who was at the time wearing short
pants and later on I saw that Sgt. Ani handed something to him,
thereafter received by Mari Musa and went inside the house
and came back later and handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a
distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former
"something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the
appellant was marijuana because of the distance, his testimony, nevertheless, corroborated the direct
evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the following material points:
(1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at
Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office
and reported a successful operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt.
Belarga then organized a team to conduct a buy-bust operation the following day; 25 (4) on December 14,
1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City;26 (5) T/Sgt.
Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the
arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant
while some agents stayed in the vehicles and others positioned themselves in strategic places;28 the appellant
met Sgt. Ani and an exchange of articles took place.29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally,
the Court has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to
see exactly what the appellant gave the poseur-buyer because of their distance or position will not be fatal to
the prosecution's case30 provided there exists other evidence, direct or circumstantial, e.g., the testimony of
the poseur-buyer, which is sufficient to prove the consummation of the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which
the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged
signal to the other NARCOM agents, the latter moved in and arrested the appellant inside the house. They
searched him to retrieve the marked money but didn't find it. Upon being questioned, the appellant said that he
gave the marked money to his wife.31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed
what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging at the corner of the
kitchen."32 They asked the appellant about its contents but failing to get a response, they opened it and found
dried marijuana leaves. At the trial, the appellant questioned the admissibility of the plastic bag and the
marijuana it contains but the trial court issued an Order ruling that these are admissible in evidence.33
Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches
and seizures by providing in Article III, Section 2, the following:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witness he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares
inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures.35
While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions
to this rule are recognized. Thus, in Alvero v. Dizon,36 the Court stated that. "[t]he most important exception to
the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest." 37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a
lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. — A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to
make a search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer
making an arrest may take from the person arrested any money or property found upon his person which was
used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the
means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . . "38 Hence, in a buy-
bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money
found on the person
of the pusher immediately after the arrest even without arrest and search warrants.39
In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house
but found nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag
hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person
of the one arrested to include the premises or surroundings under his immediate control.40 Objects in the "plain
view" of an officer who has the right to be in the position to have that view are subject to seizure and may be
presented as evidence.41
In Ker v. California42 police officers, without securing a search warrant but having information that the
defendant husband was selling marijuana from his apartment, obtained from the building manager a passkey
to defendants' apartment, and entered it. There they found the defendant husband in the living room. The
defendant wife emerged from the kitchen, and one of the officers, after identifying himself, observed through
the open doorway of the kitchen, a small scale atop the kitchen sink, upon which lay a brick-shaped package
containing green leafy substance which he recognized as marijuana. The package of marijuana was used as
evidence in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was
challenged before the U.S. Supreme Court, which held, after observing that it was not unreasonable for the
officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emerge therefrom, that "the
discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed
before him in full view.43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal
on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the
prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures
nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view"
doctrine is usually applied where a police officer is not searching for evidence against the accused, but
nonetheless inadvertently comes across an incriminating object.45 Furthermore, the U.S. Supreme Court
stated the following limitations on the application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of them had a prior justification
for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the
accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object,
hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected
with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of
the original justification is legitimate only where it is immediately apparent to the police that they have
evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from
one object to another until something incriminating at last emerges.46
It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not
justify the seizure of the object where the incriminating nature of the object is not apparent from the "plain
view" of the object.47 Stated differently, it must be immediately apparent to the police that the items that they
observe may be evidence of a crime, contraband, or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve
the marked money which they hoped to find, the NARCOM agents searched the whole house and found the
plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the
appellant as to justify its seizure. The NARCOM agents had to move from one portion of the house to another
before they sighted the plastic bag. Unlike Ker vs. California, where the police officer had reason to walk to the
doorway of the adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this
case went from room to room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no
clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to
respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to
the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of
the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents
inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the
object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the
contents of the plastic bag was not immediately apparent from the "plain view" of said object. It cannot be
claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, its
transprarency, or otherwise, that its contents are obvious to an observer.48
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the
marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to
Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the
other pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation
of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt.
Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other
pieces of evidence, the guilt of the appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.
SO ORDERED.
G.R. No. 97949 February 1, 1995
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARMANDO GIRENG y PINTO, alias "Mandy", accused-appellant.
BELLOSILLO, J.:
Accused-appellant Armando Gireng y Pinto was charged with violating Sec. 4, Art. II of R.A. 6425,1 as
amended, before the Regional Trial Court of Cabanatuan City in an information dated 25 May 1989 alleging
that about the 24th of May 1989 he unlawfully and willfully sold to another four (4) plastic tea bags of
marijuana dried leaves with seeds and had in his possession one (1) piece of marijuana cigarette roach.
The evidence shows that at around ten o'clock in the morning of 24 May 1989 Philippine Constabulary (PC)
soldier Romeo de Jesus of the Narcotics Command (NARCOM) Office at Cabanatuan City received an
information from a confidential informant that there was a suspected pusher of prohibited drugs at DS Garcia,
Cabanatuan City. He notified his superior, a certain Lt. Macusi, about the information. A plan was then set for
a buy-bust operation to entrap the suspect. Sgt. Teofilo Solis was designated as poseur-buyer and was given
by de Jesus two marked P10-bills2 while the latter was assigned to act as "back-up." Sgt. Solis placed a dot
inside the number "0" on the upper right hand corner of each bill.
At around one o'clock in the afternoon of the same day, de Jesus, Sgt. Solis and the informant proceeded to
the aforementioned address. Upon reaching the place, de Jesus positioned himself about fifteen (15) to twenty
(20) meters from the house of the suspect while Sgt. Solis and the informant went to the house and knocked
at the door. Accused-appellant went out of the house. After a brief conversation, appellant handed four (4)
plastic tea bags to Sgt. Solis. In turn, the latter gave the former the two (2) P10-bills. Thereupon, Sgt. Solis
gave the pre-arranged signal by scratching the back of his head, signifying that the deal was completed.
Immediately, de Jesus approached appellant, introduced himself as a NARCOM agent and placed the
accused under arrest. De Jesus recovered the marked bills from the right front pants pocket of the appellant.
The object of the transaction was already in the possession of Sgt. Solis.
Thereafter, accused Gireng was brought to the NARCOM Office. The confiscated items, which consisted of
four (4) tea bags of marijuana and a short roach of marijuana, were examined at the chemical laboratory of the
NARCOM headquarters and found positive for marijuana.3 Later, the items were sent to Camp Olivas,
Pampanga, for another laboratory examination. The technical report, as attested to by the forensic chemist,
showed that the specimens were indeed positive for marijuana.4
Only appellant testified in his defense. According to him, on 24 May 1989, while he was sleeping near the
window of his house, de Jesus and Sgt. Solis awakened him. They were looking for a certain "Larry." Since he
did not know the whereabouts of "Larry," he was dragged outside of his house and brought to the NARCOM
Office. His mother, who was also in the house, tried to prevent the policemen from taking him with them.
Pitted against the shaky defense of accused-appellant, the trial court found the testimony of de Jesus
supported by the prosecution's documentary evidence. The court was convinced in the veracity of his
testimony. Thus on 18 march 1991 judgment was rendered finding accused-appellant Armando Gireng y Pinto
alias "Mandy" guilty as charged and sentencing him to life imprisonment and to pay a fine of P20,000.00.5
In this appeal, accused-appellant disputes the finding of the trial court that his guilt has been proved beyond
reasonable doubt. He argues that the essential element of sale of marijuana was not established with the
requisite quantum of evidence. He emphasizes that the poseur-buyer and the informant were not presented to
buttress the seemingly weak cause for the prosecution, and that the marijuana was not identified in court by
de Jesus. Furthermore, appellant posits that the prosecution's documentary evidence is inadmissible because:
(a) the marked bills were not identified as Sgt. Solis who allegedly was the one who placed the dot in the
number "0" on the upper right hand corner of each bill was not presented in court; (b) neither was the
certificate of field test identified because the person who issued it was not presented; and (c) the
"pagpapatunay" was signed by accused-appellant during custodial investigation without assistance of counsel
of his choice and without having been informed of his constitutional right to remain silent and to counsel. He
still further argues that apart from the foregoing considerations, the filing of the Information on 25 May 1989
violated procedural orderliness. He claims that the prohibited items were endorsed to Camp Olivas only on 29
May 1989, and that the NARCOM officers did not even bother to wait for the final result of the laboratory
examination before charging him with the offense.
The submission of proof that the sale of the illicit drug took place between the poseur-buyer and the seller
thereof is indispensable in every prosecution for illegal sale of marijuana, coupled with the presentation of
the corpus delicti as evidence.6 In the case at bench, the prosecution has proved with certainty all the
elements necessary for the offense of illegal sale of marijuana which are: the identity of the buyer as well as
the seller, the object and consideration of the sale, and the delivery of the thing sold and the payment
therefor.7 PC soldier de Jesus narrated in detail the transaction which he observed from a distance of fifteen
(15) to twenty (20) meters from Solis, the informant and appellant:
FISCAL AGAPITO:
Q Upon arrival of (sic) the place, what happened now Mr.
Witness?
A The informant together with Sgt. Solis went to the house of
the pusher suspect, sir.
xxx xxx xxx
Q What happened after that? After Sgt. Solis is knocking (sic)
the door?
A Somebody went out, sir . . . I saw them talking but I cannot
(sic) hear their conversation because of my distance, sir . . . I
saw the pusher handing something to Sgt. Solis, sir.
xxx xxx xxx
Q After that, did you approach Sgt. Solis?
A When the suspect handed something to Sgt. Solis, then Sgt.
Solis handed something to the suspect, I approached them, sir.
Q After Sgt. Solis handed something to that person, what did
you do?
A I waited (for) Sgt. Solis to scratch the back of his head, sir.
 Q Is (sic) Sgt. Solis scratched (sic) the back of his head?
A I saw him scratched (sic) the back of his head?
Q What did you do after that?
A When I saw Sgt. Solis scratched (sic) the back of his head, I
ran towards them to apprehend the suspect, sir.
Q Were you able to apprehend or arrest the suspect? The
pusher?
WITNESS
A Yes, sir.
FISCAL AGAPITO
Q How did you arrest the suspect?
A When I reached them, I introduced myself as a NARCOM
agent and I apprehended him (the suspect) for selling
marijuana, sir.
Q Were you able to seize the marijuana which he was selling at
that time?
A When I apprehended him, the marijuana is (sic) already in the
possession of Sgt. Solis, sir.
Q How about the payment which (was) handed by Sgt. Solis to
the pusher?
A I got the money from the right front pocket of his light blue
corduroy pants, sir.8
Quite understandably, de Jesus was not able to see the object of the transaction due to the considerable
distance between him and the parties to the sale, but when he went near them the marijuana was already in
the possession of Sgt. Solis. The government agents then caused the drug to be examined on the same day
at the chemical laboratory of the NARCOM headquarters and latter turned it over to the PC Crime Laboratory
at Camp Olivas for another examination. 9 The items, weighing 3.8 grams, were tested positive for marijuana.
The chemistry report attested to by the forensic chemist thus conclusively established the corpus delicti of the
crime. 10
The testimony of the poseur-buyer or of the confidential informant is no longer material considering the
accused-appellant's drug pushing was positively attested to by de Jesus. 11 Moreover, informants are
generally not presented in court because of the need to hide their identity and preserve their invaluable service
to the police. 12
The marked bills were properly identified by de Jesus because he was the one who gave them to Sgt. Solis
who placed a dot inside the number "0" on the upper right hand corner of each bill and which he later
recovered from appellant. Even assuming that the bills were not properly identified, this Court has already
ruled that the absence of the marked money does not create a hiatus in the evidence for the prosecution
provided that the sale is adequately proved by the prosecution. 13
The omission to present in court the person who issued the certificate of field test did not result in weakening
the case against appellant since the omission was rectified by the forensic chemist who testified on the
certificate that she issued.
We concede to the argument of appellant that the "pagpapatunay" is inadmissible in evidence against him for
having been obtained in violation of his rights as a person under custodial investigation for the commission of
an offense. The records show that he was not informed of his right not to be compelled to sign the document;
neither was he informed of his right to counsel and the fact that the document may be used as evidence
against him. 14Nevertheless, his exoneration will not follow as a causatum since the other evidence on record
is more than adequate to warrant his conviction. 15
As regards the last argument of accused-appellant, we are in conformity with the observation of the Office of
the Solicitor General that —
The laboratory examination result of the confiscated items is not an indispensable
requirement before filing an information for the violation of the provisions of RA 6425,
as amended . . . . To require the Narcom agents (to) await the result of the laboratory
examination, which usually takes weeks or months, before haling the suspects to court
would make said agents liable under Art. 125 of the Revised Penal Code. 16
A fastidious scrutiny of the records of this case provides no reason to deviate from the findings of the trial court
regarding the culpability of the witnesses for the prosecution, specially since they are police officers who are
presumed to have regularly performed their official duties, the contrary not having been proved. 17
In People v. Ale, 18 this Court recognized that by the very nature of anti-narcotics operations, the need for
entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or
grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy the
inevitably shrouds all drug deals, the possibility of abuse is great. However, accused-appellant in this case has
failed to convince us that de Jesus and Sgt. Solis are unscrupulous policemen engaged in mulcting activities
who, either motivated by the desire to extort money or exact personal vengeance, nabbed him in lieu of a
certain "Larry." If he were really innocent, as he professes, he should have substantiated his defense by the
testimony of his mother who was allegedly with him during his arrest 19 or by other weighty evidence. Frame-
up, like alibi, is a defense that has been invariably viewed by courts with disfavor for it can just as easily be
concocted and is a common and standard line of defense in most prosecutions arising from violations of The
Dangerous Drugs Act. 20
Pursuant to Secs. 4 and 20 of R.A. 6425, as amended by R.A. 7659 in relation to the directive of People
v. Simon, 21if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision
correccional. Considering that in this case only 3.8 grams of marijuana are involved, the proper imposable
penalty is prision correccional in its medium period absent any mitigating or aggravating circumstance.
Applying the Indeterminate Sentence Law, the maximum shall be taken from the medium period of prision
correccional, which is two (2) years, four (4) months and one (1) day, to four (4) years and two (2) months,
while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor, in any of its
periods, the range of which is one (1) month and one (1) day to six (6) months.
WHEREFORE, the decision appealed from finding accused-appellant ARMANDO GIRENG y PINTO guilty
beyond reasonable doubt of violating Sec. 4, Art. II of R.A. 6425, is AFFIRMED with the modification that he is
sentenced to suffer an indeterminate prison term of six (6) months of arresto mayor maximum as minimum, to
four (4) years and two (2) months of prision correccional medium as maximum.
It appearing that accused-appellant has been detained since 24 May
1989, 22 or already beyond the period of his maximum sentence, his immediate release from custody is
ordered unless he is lawfully held for another cause.
SO ORDERED.