G.R. No.
208170 August 20, 2014 Subsequently, Chau received an email from the purported kidnapper
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
PETRUS YAU a.k.a. "John" and "Ricky" and SUSANA YAU y SUMOGBA
a.k.a. "Susan", Accused-Appellants.
DECISION
MENDOZA, J.:
This is an appeal from the September 7, 2012 Decision1 of the Court of
Appeals (CA), in CA-G.R. CR-I-IC No. 03446, which affirmed the
December 14, 2007 Decision2 of the Regional Trial Court, Branch 214,
Mandaluyong City (RTC). in Criminal Case No. MC-04-7923. The RTC
found accused-appellant Petrus Yau (Petrus) guilty beyond reasonable
doubt as principal of the crime of kidnapping for ransom and serious illegal
detention, as defined and penalized in Article 267 of the Revised Penal
Code (RPC), as amended by Republic Act No. 7659, (R.A. No. 7659), and
convicted accused-appellant Susana Yau y Sumogba (Susana)as an
accomplice to the commission of the same crime.
The Facts
Petrus and Susana were charged with the crime of Kidnapping For
Ransom in the Information,3 dated February 13, 2004, the accusatory
portion of which reads:
That on or about January 20, 2004, at around 2:00 P.M. in the vicinity of
Shoemart Mega Mall, Mandaluyong City, the abovenamed accused,
conspiring, confederating and mutually helping one another, with the use of
a sleeping substance, did then and there, willfully, unlawfully and
feloniously kidnap and take away ALASTAIR JOSEPH ONGLINGSWAM
inthe following manner, to wit: while said ALASTAIR JOSEPH
ONGLINGSWAM was on board a white Toyota taxi cab with plate number
PVD-115 being driven by the above-named accused Petrus Yau a.k.a.
"John" and "Ricky" and the taxi cab was travelling along Epifanio Delos
Santos (EDSA) Avenue, he suddenly fell unconscious and upon regaining
consciousness he was already handcuffed and in chains inside a house
located at B23, L2, Ponsettia St., Camilla Sorrento Homes, Panapaan IV,
Bacoor, Cavite, where he was kept for twenty two (22) days, which house
is owned by accused Susana Yau y Sumogba and while therein he was
maltreated; that ransom in the amount of SIX HUNDRED THOUSAND
DOLLARS (US$600,000.00) and TWENTY THOUSAND PESOS
(Php20,000.00) for each day of detention was demanded in exchangefor
his safe release until he was finally rescued on February 11,2004, by
PACER operatives of the Philippine National Police.
CONTRARY TO LAW.
Version of the Prosecution
In the Appellees Brief,4 the Office of the Solicitor General (OSG) presented
the following narration of the kidnapping:
On January 20, 2004, at around 1:30 in the afternoon, private complainant
Alastair Onglingswam, who is a practicing lawyer and businessman from
the United States, went out of Makati Shangrila Hotel, where he was
billeted, and hailed a white Toyota taxi cab with plate number PVD-115 to
take him from the said hotel to Virra Mall Shopping Center in San Juan,
Metro Manila. While the said taxicab was plying along EDSA, and within
the vicinity of SM Megamall, private complainant received a phone call
from his associate Kelly Wei in Hong Kong. He noted that while he was on
the phone conversing with his associate, appellant Petrus Yau, whom he
noted to have short black hair, a moustache and gold framed eyeglasses,
would from time to time turn to him and talk as if he was also being spoken
to. Thereafter, he felt groggy and decided to hang-up his phone. He no
longer knew what transpired except that when he woke up lying down, his
head was already covered with a plastic bag and he was handcuffed and
chained.
When private complainant complained that the handcuffs were too tight, a
man who was wearing a red mask and introduced himself as "John"
approached him and removed the plastic bag from his head and loosened
his handcuff. John informed him that he was being kidnapped for ransom
and that he will be allowed to make phone calls to his family and friends.
Hours later, John returned with telephony equipment, tape recorder, phone
and a special antennae cap for the cellphone. With these equipment,
private complainant was allowed to call his girlfriend and father and asked
them for the PIN of his ATM cards and for money, however, with
instructions not to inform them that he was kidnapped. A day after, he was
told by his captor to call his girlfriend and father to tell them thathe was still
alive as well as to reveal to them that he was kidnapped for ransom and
his kidnappers were demanding Six Hundred Thousand Dollars
(US$600,000.00) as ransom and Twenty Thousand Pesos (Php20,000.00)
a day as room and board fee.
The private complainants family, girlfriend (Iris Chau) and friends received
a text message purportedly from the former informing them that he was
kidnapped and ransom for his liberty was demanded.
On January 21, 2004, the family of the victim informed the United States
Embassy in Manila about the situation and a meeting with the
representatives of the Philippine National Police was arranged.
demanding US$2,000.00. Chau then wired US$1,000.00, upon
instructions, to Ong Kwai Ping thru Metro Bank and Trust Company.
Likewise, private complainants brother Aaron Onglingswam made eight (8)
deposits to Ong Kwai Pings account in Metro Bank, amounting to Two
Hundred Thousand Pesos (Php200,000.00), to ensure his brothers safety
and eventual release.
During private complainants twenty-two (22) days of captivity, while he
was allowed to communicate with his family almost daily to prove that he
was still alive and was served with meals almost five times a day either by
John or the other accused Susan Yau, he was also maltreated i.e. beaten
with sticks, made to lay-down biting a piece of wood which was made as
target for a rifle.
On February 10, 2004, the PACER received information that a taxi with
plate number PVD 115 plying along Bacoor was victimizing passengers.
Upon instructions of P/Supt. Isagani Nerez, members of the Police Anti-
Crimeand Emergency Response Task Force (PACER) were ordered to
proceed to Bacoor, Cavite to look for Toyota Corolla White Taxicab with
Plate No. PVD 115. On February 11, 2004, at around 4:00 oclock in the
morning, the PACER group proceeded to Bacoor and positioned
themselves along Aguinaldo Highway under the overpass fronting SM
Bacoor. Not having caught sight of the taxi, after three hours, the group
moved to a different location along the Aguinaldo Highway where they
were able to chance upon the said vehicle. Thus, they followed it, then
flagged it down and approached the driver. The driver was asked to scroll
down his window and was told that the vehicle was being used to victimize
foreign nationals. Appellant did not offer to make any comment. Hence, this
prompted the officers to ask for his name and since he answered that he
was Petrus Yau, a British national, they asked him for his drivers license
and car registration but appellant was not able to produce any. Since he
could not produce any drivers license and car registration, they were
supposed to bring him to the police station for investigation, however, when
shown a picture of private complainant and asked if he knew him, he
answered that the man is being kept in his house. He was immediately
informed that he was being placed under arrest for kidnapping private
complainant Alastair Onglingswam after being informed of his constitutional
rights. Thereafter, appellants cellphones, a QTEK Palmtop and Sony
Erickson were confiscated. Upon instructions of P/Supt. Nerez, [appellant]
was brought to the parking lot of SM City Bacoor for a possible rescue
operations of the victim.
Appellant led the team to his house and after opening the gate of his
residence, hewas led back to the police car. The rest of the members of
PACER proceeded inside the house and found a man sitting on the floor
chained and handcuffed. The man later identified himself as Alastair
Onglingswam.
During the trial of the case, private complainant positively identified Petrus
Yau as his captor and the taxi driver. Test conducted by the United States
Federal Bureau of Investigation reveals that the DNA found in the mask
used by private complainants captor matched that of appellant Petrus
Yau.5
Version of the Defense
Petrus and Susana denied the accusation, and stated the following in their
Brief6 to substantiate their claim of innocence:
Accused Petrus Yau denied having committed the crime. He averred that
the supposed kidnap victim coordinated with the police to set up the
subject case against him and his family. He is a British national. He had
been in the Philippines for many times since he was 14 years old. He came
to the country in July 2001 for a vacation and had not left since then. On
September 2001, he got married to Susana Yau. Prior thereto, he was in
Singapore running some businesses. On January 20, 2004, at around 2:00
oclock in the afternoon (the date and time the victim was kidnapped),
Petrus Yau was at home sleeping.
On February 11, 2004 (the date the victim was allegedly rescued) at
around 8:30 9:00 oclock in the morning, he went to his wife Susana in
her shop and got money to be deposited to the Asia Trust Bank. He parked
his car outside the bank. After he alighted from his car, three (3) men
bigger than him held his hands: one (1) of them held his neck. They
pushed him inside their van. They tied his hands with packing tape,
covered his eyes with the same tape, and his head with a plastic bag. They
kicked and beat him until he became unconscious.
When he regained consciousness, he was inside an airconditioned room.
His hands were handcuffed and he felt very cold because his body was
wet. His head was still being covered. He shouted asking where he was.
People came in and he heard them talking in Tagalog. They kicked him for
about twenty (20) seconds. Later, he was made to sit, as he was lying on
the floor. He said that he could not see anything, thus, someone removed
the cover of his head. They accused him of being a kidnapper, to which he
replied that he was not. He pleaded to them to allow him to make a call to
the British Embassy, his friends and his wife, but to no avail.
When he was taken into custody, he had his wedding ring, watch and a
waist bag containing his British passport, alien certificate, drivers license,
Asia Trust bankbook in the name of Susana Yau, ATM Cards (in his name)
of Metrobank, PCI Equitable Bank and Banco de Oro, VISA Card, and
some cash given to him by his wife . He lost those personal properties.
After four (4) to five (5) hours, he was transferred to another room without
a window. The following day, he was brought to and detained at the
PACER Custodial Center.
Petrus Yau can speak English but he is better in the Chinese language,
both Mandarin and Cantonese. He bought the taxi he was driving in August
2003 for Eighty Five Thousand Pesos (Php85,000.00) for personal use
and/or for resale. It had a defective engine (usually overheats), without an
aircon and cannot travel for long journey. He does not drive a taxi to earn a
living. He had police friends who told him that he cannot drive a taxi as an
occupation since his drivers license is non-professional.
Sometime on June 2003, he and his wife Susana had a heated argument
over his womanizing. Hence, she decided to live separately from him
(though she was pregnant at that time) and moved to another house (Block
5, Lot 4, Tulip Street, Andrea Village, Bacoor, Cavite). Sometimes, she
would visit him.
Petrus claimed that his house does not have a basement, contrary to the
victims testimony that he was placed in the basement. He was not in his
house when the police officers allegedly rescued the kidnapped victim. He
left his house in good condition in the morning before his arrest. The white
Toyota Corolla taxi he was driving had markings of faded grey, not black,
as claimed by Alastair.
During the inquest proceedings, Petrus Yau was not assisted by a counsel
and was not informedof his constitutional rights.
Susana Sumogba Yau denied the accusation that she was in the company
of the kidnapper every time the latter served Alastairs food (lunch and
dinner). She is legally married to Petrus Yau. They have two (2) children
named Charlie and Vivian. On February 11, 2004, she lived at Block 5, Lot
4, Tulips Street, Andrea Village, Bacoor, Cavite, while Petrus Yau lived at
Block 23, Lot 2, Ponsettia Street, Sorrento Town Homes, Bacoor, Cavite,
with his girlfriend. Susana and Petrus were separated since June 2003.
On February 11, 2004, she called him to pick up the amount of
Php7,000.00 (earnings of her sari-sari store) and to deposit it in her
account at Asia Trust Bank. She would request Petrus to do such errand
for her as she does not trust her househelp. Petrus came to her at around
7:00 oclock in the morning. At around 11:00 oclock a.m. of the same day,
four(4) to five (5) policemen arrived at her residence and told her to come
with them to the hospital where Petrus was brought because he met a
vehicular accident along Aguinaldo Highway.
Susana, together with her children and helpers, went with them, and rode
in their van. They, however, were not brought to the hospital but to an
office. Thereat, Susana saw her husband (almost dead) inside a small
room with a one-way mirror. She was not able to talk to him. She, together
with her children and helpers, were detained for three (3) days inside a
small room. After three (3) days, her children and helpers were released
and they went home. At that time, she was not provided with the
assistance of a counsel.
Susana stated that her husbands name is Petrus Yau. He is not known
either as John or Ong Kwai Ping. He is engaged in the business of buying
cars for resale. They owned three (3) houses and lots, all registered in her
name. At the time she was taken into custody by the police, she had
withher Five Thousand Pesos cash, Allied Bank passbook and ATM Cards
(Allied Bank and Asia Trust Bank), VISA card, passport, wedding ring,
necklace and cellphone, which were taken away by persons whom she
does not know.7
The Ruling of the RTC
In its judgment, dated December 14,2007, the RTC convicted Petrus Yau,
as principal, of the crime of kidnapping for ransom and serious illegal
detention, and Susana Yau,as an accomplice to the commission thereof.
The RTC found the testimonies of the prosecution witnesses credible and
sufficient, with their versions of the incident dovetailing with each other
even on minor details. It observed that Petrus failed to rebut his positive
identification by the victim, Alastair and his brother Aaron John
Onglingswam (Aaron John), with whom he talked for several times over the
phone. It stated that the circumstantial evidence proffered by the
prosecution had adequately reinforced its theory that Petrus was the
perpetrator of the heinous act.
With respect to Susana, the RTC wrote that she was positively identified by
Alastair as the Filipino woman who fed him or accompanied Petrus in
bringing him food during his 22 days of captivity and, for said reason,
should be held liable as an accomplice.
The RTC rejected the twin defenses of alibi and frame-up submitted by
Petrus and Susana because the same were unsubstantiated by clear and
convincing evidence. The dispositive portion of the said decision states:
WHEREFORE, this court renders judgment finding the accused Petrus Yau
GUILTY BEYOND REASONABLE DOUBT as principal of the crime of
kidnapping for ransom and serious illegal detention and pursuant to
Republic Act No. 9346, he is hereby sentenced to suffer the prison term of
RECLUSION PERPETUA. The court also finds the accused Susana Yau
GUILTY BEYOND REASONABLE DOUBT as accomplice to the
commission of the crime of kidnapping for ransom and serious illegal
detention and applying to her the benefit of the Indeterminate Sentence
Law wherein her minimum penalty shall be taken from the penalty next
lower in degree of the imposable penalty of RECLUSION TEMPORAL
which is prision mayor, she is hereby therefore sentenced to suffer the
prison term of EIGHT (8) YEARS and ONE (1) DAY of PRISION MAYOR
MINIMUM AS MINIMUM to TWELVE (12) YEARS and TEN (10) MONTHS
of RECLUSION TEMPORAL MINIMUM AS MAXIMUM.Accused are
credited in full of the preventive imprisonment they have already served in
confinement.
Further, both accused are sentenced to pay, jointly and severally, the victim
ALASTAIR JOSEPH ONGLINGSWAM actual damages of Two Hundred
Seventy Three Thousand and One Hundred Thirty Two Pesos (273,
132.00) plus interest from the filing of the information until full payment,
moral damages of One Million Pesos (1,000,000.00), and exemplary
damages of Two Hundred Thousand Pesos (200,000.00).
SO ORDERED.8
Unfazed, Petrus and Susana appealed the RTC judgment of conviction
before the CA.
The Ruling of the CA
The CA affirmed the conviction of Petrus and Susana.9 The appellate court
likewise lent credence to the testimonies of the prosecution witnesses, who
were able to establish with certitude the commission of the crime and the
identities of the culprits thereof.
Hence, this appeal.
ASSIGNED ERRORS:
I
THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE
ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH,
THE PIECES OF OBJECT EVIDENCE ALLEGEDLY SEIZED ARE
INADMISSIBLE.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THERE WAS
POSITIVE IDENTIFICATION OF THE ACCUSEDAPPELLANT AS THE
ALLEGED KIDNAPPER.
III
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.10
Susana insisted that the trial court erred: 1] in not giving credence to her
claim that she was living separately with her husband, Petrus Yau; 2] in not
considering that she was not mentioned in the sworn statement executed
by Alastair, dated February 12, 2004, even when said victim was asked if
there was another person assisting Petrus in the perpetration of the crime;
3] in not considering the Resolution of the Department of Justice, dated
February 13, 2004, finding probable cause against her because she is the
registered owner of the house where Alastair was held captive and not
because she served food on the victim; and 4] in convicting her as an
accomplice.11
On September 11, 2013, the Court issued a resolution12 notifying the
parties that they could file their respective supplemental briefs if they so
desire. The People of the Philippines, represented by the OSG, opted not
to file any supplemental brief, maintaining its positions and arguments in its
brief earlier filed in CA-G.R. CR-H.C. No. 03446.13 Petrus filed his
Supplemental Brief14 on December 27, 2013 in amplification of his
arguments raised in his brief filed before the CA.
The Courts Ruling
The appeal is bereft of merit.
Encapsulated, the issues herein focus on: (a) the credibility of the
prosecution witnesses; (b) the sufficiency of the prosecution evidence to
prove the commission of kidnapping for ransom and the identity of the
culprits thereof; and (c) the degree of responsibility of each
accusedappellant for the crime of kidnapping for ransom.
Worth reiterating on the issue of the credibility of the witnesses is the ruling
of the Court in People v. Maxion15that:
The issue raised by accused-appellant involves the credibility of witness,
which is best addressed by the trial court, it being in a better position to
decide such question, having heard the witness and observed his
demeanor, conduct, and attitude under grueling examination. These are
the most significant factors in evaluating the sincerity of witnesses and in
unearthing the truth, especially in the face of conflicting
testimonies.Through its observations during the entire proceedings, the
trial court can be expected to determine, with reasonable discretion, whose
testimony to accept and which witness to believe. Verily, findings of the trial
court on such matters will not be disturbed on appeal unless some facts or
circumstances of weight have been overlooked, misapprehended or
misinterpreted so as to materially affect the disposition of the case.16
It has been an established rule in appellate review that the trial courts
factual findings, such as its assessment of the credibility of the witnesses,
the probative weight of their testimonies, and the conclusions drawn from
the factual findings, are accorded great respect and have even conclusive
effect. Such factual findings and conclusions assume even greater weight
when they are affirmed by the CA17
In the case at bench, the RTC gavemore weight and credence to the
testimonies of the prosecution witnesses compared to those of the
accusedappellants. After a judicious review of the evidence on record, the
Court finds no cogent reason to deviate from the factual findings of the
RTC and the CA, and their respective assessment and calibration of the
credibility of the prosecution witnesses.
In every criminal case, the task ofthe prosecution is always two-fold, that
is, (1) to prove beyond reasonable doubt the commission of the crime
charged; and (2) to establish with the same quantumof proof the identity of
the person or persons responsible therefor, because, evenif the
commission of the crime is a given, there can be no conviction without the
identity of the malefactor being likewise clearly ascertained.18 Here, the
prosecution was able to satisfactorily discharge this burden.
Victim Alastair positively identified Petrus as the driver of the white Toyota
Corolla taxicab with Plate No. PVD 115 which he boarded before he lost
consciousness on the afternoon ofJanuary 20, 2004. He claimed that while
he was conversing with his business associate Kelly Wei over his phone
inside the taxicab, Petrus would turn his face towards him, from time to
time, and would talk as if he was being spoken to. Alastair claimed that he
had a good look and an ample opportunity toremember the facial features
of the driver as to be able to recognize and identify him in court. It is the
most natural reaction for victims of crimes to strive to remember the faces
of their accosters and the manner in which the craven acts are
committed.19
Alastair also recognized the voice behind the red mask used by his
kidnapper as belonging to Petrus. It was established that from the first to
the twentieth day of Alastairs captivity,his kidnapper would meet him five
times a day and would talk to him for an hour, thus, enabling him to
remember the culprits voice which had a unique tone and noticeable
Chinese accent. Alastair declared with certainty that it was the voice of
Petrus. Witness Aaron John insisted that the person who introduced
himself as Ong Kwai Ping and with whom he had talked over the phone for
three weeks, demanding necessity money and ransom for the release of
his brother Alastair, was Petrus because of the distinct tone of his voice
with Chinese accent. There was no showing that Alastair and Aaron John
had any ill motive to falsely testify against Petrus. As a rule, absent any
evidence showing any reason or motive for prosecution witnesses to
perjure, the logical conclusion is that no suchimproper motive exists, and
their testimonies are, thus, worthy of full faith and credit.20
Further, the prosecution presented credible and sufficient pieces of
circumstantial evidence that led tothe inescapable and reasonable
conclusion that Petrus committed the crime charged. The settled rule is
that a judgment of conviction based on circumstantial evidence can be
upheld only if the following requisites concur: (1) there is more than one
circumstance; (2) the facts from which the inferencesare derived are
proven; and (3) the combination of all the circumstances is such as to
produce conviction beyond reasonable doubt.21 The corollary rule is that
the circumstances proven must constitute an unbroken chain which leads
to one fair and reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person.22
The combination of the following established facts and circumstances
affirm the findings of guilt by the RTC and the CA:
1] The victim was rescued by the police inside the house owned by Petrus
and Susana, located at Block 23, Lot 2, Ponsettia St., Camella Sorrento
Homes, Bacoor, Cavite;
2] The Toyota Corolla white taxicab bearing Plate No. PVD 115, which the
victim recalled boarding in going to Virra Mall Greenhills Shopping Center
on the afternoon of January 20, 2004 and where he lost consciousness,
was found in the possession of the accused-appellant Petrus on February
11, 2004;
3] The drivers license of Petrus and an ATM card in the name of Ong Kwai
Ping were recovered inside the Toyota Corolla taxicab of Petrus Yau;
4] In the house where the victim was rescued, the following evidence were
found: one (1) chain with padlock; handcuffs; short broken chain;
checkered pajama; black blazer; one (1) Onesimus black coat; two (2)
video camera cartridges, one showing the victim in lying down position and
family footages, and the other one labeled "sex scandal"; eight (8) pieces
of cellphones; notebook; two (2) Talk n Tex SIM cards; Globe SIM card; two
(2) Transfer Certificates of Title for two pieces of land in Bacoor, Cavite,
under the name of Susana Sumogba; original copy of the OfficialReceipts
and Certificate of Registration of a Suzuki 1993 motorcycle bearing Plate
No. 2M9748; business license and mayors permit issued to Susana Yau;
marriage contract of Petrus Yau and Susana Yau; birth certificate of
Susana Sumogba; birth certificates of their children; ACR of Petrus Yau;
Meralco bills; Asia Trust deposit slips; five ATM deposit slips; and PLDT
bills;
5] Two (2) cellphones, a QTEK Palmtop and a Sony Erickson were found in
the possession of Petrus. Incidentally, it was reported that the owner ofthe
QTEK Palmtop cellphone was a certain Jasper Beltran, also a kidnapped
victim whose whereabouts had not been known yet; and
6] The DNA examination on the red mask worn by the kidnapper that was
recovered inside the house and on the buccal swab taken from Petrus
showed that both DNA profiles matched.23
The Court agrees with the findings of the RTC and the CA that the
foregoing pieces of circumstantial evidence, when analyzed and taken
together, definitely lead to no other conclusion than that Petrus was the
author of the kidnapping for ransom. When viewed as a whole, the
prosecution evidence effectively established his guilt beyond reasonable
doubt.
The elements of Kidnapping For Ransom under Article 267 of the RPC, as
amended by R.A. No. 7659, are asfollows: (a) intent on the part of the
accused to deprive the victim of his liberty; (b) actual deprivation of the
victim of his liberty; and (c) motive of the accused, which is extorting
ransom for the release of the victim.24
All of the foregoing elements were duly established by the testimonial and
documentary evidences for the prosecution in the case at bench. First,
Petrus is a private individual. Second, Petrus kidnapped Alastair by using
sleeping substance which rendered the latter unconscious while inside a
taxicab driven by the said accused-appellant. Third, Petrus took and
detained Alastair inside the house owned by him and Susana Yau in
Bacoor, Cavite, where said victim was handcuffed and chained, and hence,
deprived of his liberty. Fourth, Alastair was taken against his will. And fifth,
Petrus made demands for the delivery of a ransomin the amount of
US$600,000.00 for the release of the victim.
Anent the criminal liability of eachaccused-appellant, there is no doubt that
Petrus is liable as principal of the crime of kidnapping for ransom. Susana,
on the other hand, is liable only as an accomplice to the crime as correctly
found by the lower courts. It must be emphasized that there was no
evidence indubitably proving that Susanaparticipated in the decision to
commit the criminal act. The only evidence the prosecution had against her
was the testimony of Alastair to the effect that he remembered her as the
woman who gave food to him or who accompanied his kidnapper
whenever he would bring food to him every breakfast, lunch and dinner.
Jurisprudence25 is instructive of the elements required, in accordance with
Article 18 of the RPC, in order that a person may be considered an
accomplice, namely, (1) that there bea community of design; that is,
knowing the criminal design of the principal by direct participation, he
concurs with the latter in his purpose; (2) that he cooperates in the
execution by previous or simultaneous act, with the intention of supplying
material or moral aid in the execution of the crime in an efficacious way;
and (3) that there be a relation between the acts done by the principal and
those attributed to the person charged as accomplice.
In the case at bench, Susana knew of the criminal design of her husband,
Petrus, but she kept quiet and never reported the incident to the police
authorities. Instead, she stayed with Petrus inside the house and gave food
to the victim or accompanied her husband when he brought food to the
victim. Susana not only countenancedPetrus illegal act, but also supplied
him with material and moral aid. It has been held that being present and
giving moral support when a crime is being committed make a person
responsible as an accomplice in the crime committed.26 As keenly
observed by the RTC, the act of giving food by Susana to the victim was
not essential and indispensable for the perpetration ofthe crime of
kidnapping for ransom but merely an expression of sympathy orfeeling of
support to her husband.27 Moreover, this Court is guided by the ruling in
People v. De Vera,28 where it was stressed that in case of doubt, the
participation of the offender will be considered as that of an accomplice
rather thanthat of a principal.
Alastairs positive identification of Susana is not in any bit prejudiced by his
failure to mention her name in his sworn statement, dated February 12,
2004. It is well-settled that affidavits, being ex parte, are almost always
incomplete and often inaccurate, butdo not really detract from the
credibility of witnesses.29 Oftentimes, the allegationscontained in affidavits
involved mere passive mention of details anchored entirely on the
investigators questions. The discrepancies between a sworn statement
and a testimony in court do not outrightly justify the acquittal ofan accused,
as testimonial evidence carries moreweight than an affidavit.30 Testimonies
given during the trial are more exact and elaborate. Besides, sworn
statements are often executed when an affiants mental faculties are not in
such a state as to afford the affiant a fair opportunity of narrating in full the
incident which transpired.31
Given the overwhelming picture of their complicity in the crime, this Court
cannot accept the defenses of alibi and frame-up interposed by the
accused-appellants. Alibi is the weakest of all defenses, for it is easy to
contrive and difficult to prove. Alibi must be proven by the accused with
clear and convincing evidence; otherwise it cannot prevail over the positive
testimonies of credible witnesses who testify on affirmative
matters.32 The defense of frame-up, like alibi, has been invariably viewed
by this Court with disfavor, for it can easily be concocted but is difficult to
prove.1wphi1 In order to prosper, the defense of frame-up must be
proven by the accused with clear and convincing evidence.33 Apart from Petrus shall be liable for actual damages in the amount of P 182,088.00;
their bare allegations, no competent and independent evidence was moral damages in the amount of P133,333.33; and exemplary damages in
adduced by the accused-appellants to substantiate their twin defenses of the amount or P66,666.6 7; and Susana for the amount of P91,044.00 as
alibi and frame-up and, thus, remain selfserving and do not merit any actual damages; P66,666.67 as moral damages; and P33,333.33 as
evidentiary value. More importantly, nowhere in the records does it show of exemplary damages.
any dubious reasons or improper motive that could have impelled the WHEREFORE, the September 7, 2012 Decisi0n of the Court of Appeals in
prosecution witnesses, particularly victim Alastair Onglingswam, to falsely CA-G.R. CR-H.C. No. 03446 is AFFIRMED with MODIFICATION in that
testify and fabricate documentary or object evidence just to implicate accused-appellants Petrus Yau and Susana Yau y Sumogba are ordered to
accused-appellants in such a heinous crime as kidnapping for ransom. pay the victim Alastair Joseph Onglingswam moral damages in the amount
Their only motive was to see to it that the kidnapper be brought to justice of P200,000.00 and exemplary damages in the amount of Pl 00,000.00.
and sentencedwith the appropriate penalty. The award of actual damages in the amount or P273, 132.00 is
As a last-ditch effort to exculpate themselves from any criminal culpability, maintained. The civil liabilities of the accused-appellants shall be
the accused-appellants questioned the legality of their warrantless arrests. apportioned as follows:
This too must fail. 1] Petrus Yau is directed to pay actual damages in the amount
Any objection to the procedure followed in the matter of the acquisition by of P182,088.00; moral damages in the amount of P 133,333.33; and
a court of jurisdiction over the person of the accused must be opportunely exemplary damages in the amount of P66,666.67; and
raised before he enters his plea; otherwise, the objection is deemed 2] Susana Yau y Sumogba is directed to pay actual damages in the
waived.34The accused-appellants never objected to or questioned the amount of P91,044.00, moral damages in the amount of P66,666.67 and
legality of their warrantless arrests or the acquisition of jurisdiction by the exemplary damages in the amount of P33,333.33.
RTC over their persons before theyentered their respective pleas to the SO ORDERED.
kidnapping for ransom charge. Considering this lapse and coupled with JOSE CATRAL MENDOZA
their full and active participation in the trial of the case, accused-appellants Associate Justice
were deemed to have waived any objection to their warrantless arrests. WE CONCUR:
The accused-appellants voluntarily submitted to the jurisdiction of the RTC ANTONIO T. CARPIO*
thereby curing whatever defects that might have attended their arrest. It Associate Justice
bears stressing that the legality of the arrest affects only the jurisdiction of DIOSDADO M. PERALTA
the court over their persons.35 Their warrantless arrests cannot, by PRESBITERO J. VELASCO, JR.
Associate Justice
themselves, be the bases of their acquittal. Associate Justice
Chairperson
Even assuming arguendo that the accused-appellants made a timely MARVIC MARIO VICTOR F. LEONEN
objection to their warrantless arrests, jurisprudence is replete with rulings Associate Justice
that support the view that their conviction was proper despite being illegally ATTE S TATI O N
arrested without a warrant. In People v. Manlulu,36 the Court ruled that the I attest that the conclusions in the above Decision had been reached in
illegality of the warrantless arrest cannot deprive the State of its right to consultation before the case was assigned to the writer of the opinion of
prosecute the guilty when all other facts on record point to their culpability. the Court's Division.
Indeed, the illegal arrest of an accused is not a sufficient cause for setting PRESBITERO J. VELASCO, JR.
aside a valid judgment rendered upon a sufficient complaint after a trial Associate Justice
free from error.37 Chairperson, Third Division
With respect to the penalty, the Court finds that the RTC was correct in C E R T I F I C AT I O N
imposing the penalty of reclusion perpetuawithout eligibility of parole Pursuant to Section 13, Article VIII of the Constitution and the Division
against Petrus as principal in the charge of kidnapping for ransom in view Chairperson's Attestation, I certify that the conclusions in the above
of R.A. No. 9346, prohibiting the death penalty. Also, the Court finds that Decision had been reached in consultation before the case was assigned
the penalty of eight (8) years and one (1) day of prision mayor, as to the writer of the opinion of the Court's Division.
minimum, to twelve (12) years and ten (10) months of reclusion temporal, MARIA LOURDES P. A. SERENO
as maximum, meted out against Susana, an accomplice, to be proper. Chief Justice
The Court also sustains the RTC in awarding actual damages in the
amount of 273,132.00 plus interest committed from the filing of the
information until fully paid. As regards the moral damages against the
accused-appellants, the Court findsthe award of P1,000,000.00 to be
exorbitant. Hence, the same is being reduced to P200,000.00, as the
reasonable compensation for the ignominy and sufferings that Alastair and
his family endured because of the accused-appellants inhumane acts of
detaining him in handcuffs and chains, and mentally torturing him and his
family to raise the ransom money. The fact that they suffered the trauma
from mental, physical and psychologicalordeal which constitutes the basis
for moral damages under Article 2219 of the Civil Code is too obvious to
still require its recital at the trial through the superfluity of a testimonial
charade. The Court also finds the award of exemplary damages to be in
order in view of the presence of the qualifying circumstance of demand for
ransom, and to serve as an example and deterrence for the public good.
The Court, however, reduces the amount from P200,000.00
to P100,000.00 in line with prevailing jurisprudence.38
The RTC, however, erred in ruling that Susana was solidarily liable with
Petrus for the payment of damages. This is an erroneous apportionment of
the damages awarded because it does not take into account the difference
in the nature and degree of participation between the principal, Petrus, and
the accomplice, Susana. The ruling of this Court in People v.
Montesclaros39 is instructive on the apportionment of civil liabilities among
all the accusedappellants. The entire amount of the civil liabilities should be
apportioned among all those who cooperated in the commission of the
crime according to the degrees of their liability, respective responsibilities
and actual participation. Accordingly, Petrus should shoulder a greater
share in the total amount of damages than Susana who was adjudged only
as an accomplice.
In fine, the accused-appellants are ordered to pay the victim, Alastair
Onglingswam actual damages in the amount of P273, 132.00; moral
damages in the amount of P200,000.00; and exemplary damages in the
amount of P100,000.00, or a total amount of P573, 132.00. Taking into
consideration the degree of their participation, the principal, Petrus, should
be liable for two-thirds (2/3) of the total amount of the damages (P573,
132.00 x 213) or P382,088.00; and the accomplice, Susana, should be
ordered to pay the remaining one-third (1/3) or P191,044.00. Specifically,
G.R. No. 80762 March 19, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES,
SR., CUSTODIO GONZALES, JR., NERIO GONZALES and ROGELIO
LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant.
SARMIENTO, J.:
In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo,
Branch XXXVIII (38), in Criminal Case No. 13661, entitled "People of the
Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales,
Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the
accused, except Rogelio Lanida who eluded arrest and up to now has
remain at large and not yet arrained, guilty beyond reasonable doubt of the
crime of murder as defined under Article 248 of the Revised Penal Code.
They were sentenced "to suffer the penalty of imprisonment of twelve (12)
years and one (1) day to seventeen (17) years and four (4) months
of reclusion temporal, to indemnify the heirs of the deceased victim in the
amount of P40,000.00, plus moral damages in the sum of P14,000.00 and
to pay the costs." 2 The victim was Lloyd Peacerrada, 44, landowner, and
a resident of Barangay Aspera, Sara, Iloilo.
Through their counsel, all the accused, except of course Rogelio Lanida,
filed a notice of appeal from the trial court's decision. During the pendency
of their appeal and before judgment thereon could be rendered by the
Court of Appeals, however, all the accused-appellants, except Custodio
Gonzales, Sr., withdrew their appeal and chose instead to pursue their
respective applications for parole before the then Ministry, now
Department, of Justice, Parole Division. 3
On October 27, 1987, the Court of Appeals rendered a decision 4 on the
appeal of Custodio Gonzales, Sr. It modified the appealed decision in that
the lone appellant was sentenced to reclusion perpetua and to indemnify
the heirs of Lloyd Peacerrada in the amount of P30,000.00. In all other
respect, the decision of the trial court was affirmed. Further, on the basis of
our ruling in People vs. Ramos, 5 the appellate court certified this case to
us for review. 6
The antecedent facts are as follows:
At around 9:00 o'clock in the evening of February 21, 1981, Bartolome
Paja, the barangay captain of Barangay Tipacla, Ajuy, Iloilo, was awakened
from his sleep by the spouses Augusto and Fausta Gonzales. Augusto
informed Paja that his wife had just killed their landlord, Lloyd
Peacerrada, and thus would like to surrender to the authorities. Seeing
Augusto still holding the knife allegedly used in the killing and Fausta with
her dress smeared with blood, Paja immediately ordered a nephew of his
to take the spouses to the police authorities at the Municipal Hall in
Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales
spouses, who "backrode" on his motorcycle, to the municipal
building. 7 Upon reaching the Ajuy Police sub-station, the couple informed
the police on duty of the incident. That same night, Patrolman Salvador
Centeno of the Ajuy Police Force and the Gonzales spouses went back to
Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's
residence where Fausta was made to stay, while Paja, Patrolman Centeno,
and Augusto proceeded to the latter's residence at Sitio Nabitasan where
the killing incident allegedly occurred. 8 There they saw the lifeless body of
Lloyd Peacerrada, clad only in an underwear, sprawled face down inside
the bedroom. 9 The group stayed for about an hour during which time
Patrolman Centeno inspected the scene and started to make a rough
sketch thereof and the immediate surroundings. 10 The next day, February
22, 1981, at around 7:00 o'clock in the morning, Patrolman Centeno,
accompanied by a photographer, went back to the scene of the killing to
conduct further investigations. Fausta Gonzales, on the other hand, was
brought back that same day by Barangay Captain Paja to the police
substation in Ajuy. When Patrolman Centeno and his companion arrived at
Sitio Nabitasan, two members of the 321st P.C. Company stationed in
Sara, Iloilo, who had likewise been informed of the incident, were already
there conducting their own investigation. Patrolman Centeno continued
with his sketch; photographs of the scene were likewise taken. The body of
the victim was then brought to the Municipal Hall of Ajuy for autopsy.
The autopsy of Lloyd Peacerrada's cadaver was performed at about
11:20 a.m. on February 22, 1981; after completed, a report was made with
the following findings:
PHYSICAL FINDINGS
1. Deceased is about 5 ft. and 4 inches in height, body moderately built
and on cadaveric rigidity.
EXTERNAL FINDINGS
1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd
anterior aspect of the arm, right, directed upward to the right axillary pit.
2. Stab wound, thru and thru, located at the proximal 3rd, forearm right,
posterior aspect with an entrance of 5 cm. in width and 9 cm. in length with
an exit at the middle 3rd, posterior aspect of the forearm, right, with 1 cm.
wound exit.
3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of
the forearm right, 1 cm. in width.
4. Incised wound, 4 cm. long, depth visualizing the right lateral border of
the sternum, 6th and 7th ribs, right located 1.5 inches below the right
nipple.
5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the
thoracic cavity right, located at the left midclavicular line at the level of the
5th rib left.
6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right
thoracic cavity, located at the mid left scapular line at the level of the 8th
intercostal space.
7. Puncture wound, 1 cm. in width, located at the base of the left armpit
directed toward the left thoracic cavity.
8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left
deltoid muscle, located at the upper 3rd axilla left.
9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior
aspect, proximal 3rd arm left, directed downward.
10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial
aspect, palm right.
11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion
of large intestine and mysentery coming out.
12. Stab wound, 4 cm. in width, located at the posterior portion of the
shoulder, right, directed downward to the aspex of the light thoracic cavity.
13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial
portion of the medial border of the right scapula.
14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the
posterior aspect of the right elbow.
15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior
portion, middle 3rd, forearm, right.
16. Lacerated wound at the anterior tantanelle with fissural fracture of the
skull.
INTERNAL FINDINGS:
1. Stab wound No. 5, injuring the left ventricle of the heart.
2. Stab wound No. 6, severely injuring the right lower lobe of the lungs.
3. Stab wound No. 7, injuring the right middle lobe of the lungs.
4. Stab wound No. 11, injuring the descending colon of the large intestine,
thru and thru.
5. Stab wound No. 12, severely injuring the apex of the right lungs (sic).
CAUSE OF DEATH:
MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED, STABBED
(sic), INCISED AND PUNCTURED WOUNDS.
JESUS D. ROJAS, M.D.
Rural Health Physician
Ajuy, Iloilo 11
The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds,
five (5) of which are fatal because they penetrated the internal organs,
heart, lungs and intestines of the deceased." 12
On February 23, two days after the incident, Augusto Gonzales appeared
before the police sub-station in the poblacion of Ajuy and voluntarily
surrendered to Police Corporal Ben Sazon for detention and protective
custody for "having been involved" in the killing of Lloyd Peacerrada. He
requested that he be taken to the P.C. headquarters in Sara, Iloilo where
his wife, Fausta, was already detained having been indorsed thereat by the
Ajuy police force. 13
Based on the foregoing and on the investigations conducted by the Ajuy
police force and the 321st P.C. Company, an information for murder dated
August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the
spouses Augusto and Fausta Gonzales. The information read as follows:
The undersigned Provincial Fiscal accuses FAUSTA GONZALES and
AUGUSTO GONZALES of the crime of MURDER committed as follows:
That on or about the 21st day of February, 1981, in the Municipality of Ajuy,
Province of Iloilo, Philippines, and within the jurisdiction of this Court, the
above-named accused with four other companions whose identities are still
unknown and are still at large, armed with sharp-pointed and deadly
weapons, conspiring, confederating and helping each other, with treachery
and evident premeditation, with deliberate intent and decided purpose to
kill, and taking advantage of their superior strength and number, did then
and there wilfully, unlawfully and feloniously attack, assault, stab, hack, hit
and wound Lloyd D. Peacerrada, with the weapons with which said
accused were provided at the time, thereby inflicting upon said Lloyd D.
Peacerrada multiple wounds on different parts of his body as shown by
autopsy report attached to the record of this case which multifarious
wounds caused the immediate death of said Lloyd D. Peacerrada.
CONTRARY TO LAW.
Iloilo City, August 26, 1981. 14
When arraigned on September 16, 1981, Augusto and Fausta both entered
a plea of not guilty. Before trial, however, Jose Huntoria 15 who claimed to
have witnessed the killing of Lloyd Peacerrada, presented himself to
Nanie Peacerrada, the victim's widow, on October 6, 1981, and
volunteered to testify for the prosecution. A reinvestigation of the case was
therefore conducted by the Provincial Fiscal of Iloilo on the basis of which
an Amended Information, 16 dated March 3, 1982, naming as additional
accused Custodio Gonzales, Sr. (the herein appellant), Custodio Gonzales,
Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the accused
except as earlier explained, Lanida, pleaded not guilty to the crime.
At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health
physician of Ajuy who conducted the autopsy on the body of the victim;
Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman
Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt.
(ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C.
Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peacerrada, the
widow.
Dr. Jesus Rojas testified that he performed the autopsy on the body of the
deceased Lloyd Penacerrada at around 11:20 a.m. on February 22, 1981
after it was taken to the municipal hall of Ajuy. 17 His findings revealed that
the victim suffered from 16 wounds comprising of four (4) punctured
wounds, seven (7) stab wounds, four (4) incised wounds, and one (1)
lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility
that only one weapon might have caused all the wounds (except the
lacerated wound) inflicted on the victim, nevertheless opined that due to
the number and different characteristics of the wounds, the probability that
at least two instruments were used is high. 18 The police authorities and the
P.C. operatives for their part testified on the aspect of the investigation they
respectively conducted in relation to the incident. Nanie Peacerrada
testified mainly on the expenses she incurred by reason of the death of her
husband while Barangay Captain Bartolome Paja related the events
surrounding the surrender of the spouses Augusto and Fausta Gonzales to
him, the location of the houses of the accused, as well as on other matters.
By and large, the prosecution's case rested on Huntoria's alleged
eyewitness account of the incident. According to Huntoria, who gave his
age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the
afternoon on February 21, 1981, he left his work at Barangay Central, in
Ajuy, Iloilo where he was employed as a tractor driver by one Mr. Piccio,
and walked home; 20 he took a short-cut route. 21 While passing at the
vicinity of the Gonzales spouses' house at around 8:00 o'clock in the
evening, he heard cries for help. 22 Curiosity prompted him to approach the
place where the shouts were emanating. When he was some 15 to 20
meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging
upon and takings turns in stabbing and hacking the victim Lloyd
Peacerrada, near a "linasan" or threshing platform. He said he clearly
recognized all the accused as the place was then awash in
moonlight. 24 Huntoria further recounted that after the accused were
through in stabbing and hacking the victim, they then lifted his body and
carried it into the house of the Gonzales spouses which was situated some
20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on his
way home. Upon reaching his house, he related what he saw to his mother
and to his wife 26 before he went to sleep. 27 Huntoria explained that he did
not immediately report to the police authorities what he witnessed for fear
of his life. 28 In October 1981 however, eight months after the extraordinary
incident he allegedly witnessed, bothered by his conscience plus the fact
that his father was formerly a tenant of the victim which, to his mind, made
him likewise a tenant of the latter, he thought of helping the victim's widow,
Nanie Peacerrada. Hence, out of his volition, he travelled from his place
at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo
where Mrs. Peacerrada lived, and related to her what he saw on February
21, 1981. 29
Except Fausta who admitted killing Lloyd Peacerrada in defense of her
honor as the deceased attempted to rape her, all the accused denied
participation in the crime. The herein accused-appellant, Custodio
Gonzales, Sr., claimed that he was asleep 30 in his house which was
located some one kilometer away from the scene of the crime 31when the
incident happened. He asserted that he only came to know of it after his
grandchildren by Augusto and Fausta Gonzales went to his house that
night of February 21, 1981 to inform him. 32
The trial court disregarded the version of the defense; it believed the
testimony of Huntoria.
On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone
appellant, contended that the trial court erred in convicting him on the basis
of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not
appreciating his defense of alibi.
The Court of Appeals found no merit in both assigned errors. In upholding
Huntoria's testimony, the appellate court held that:
. . . Huntoria positively identified all the accused, including the herein
accused-appellant, as the assailants of Peacerrada. (TSN, p. 43, July 27,
1982) The claim that Huntoria would have difficulty recognizing the
assailant at a distance of 15 to 20 meters is without merit, considering that
Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not say
who was hacking and who was stabbing the deceased, it was only
because the assailant were moving around the victim.
As for the delay in reporting the incident to the authorities, we think that
Huntoria's explanation is satisfactory. He said he feared for his life. (Id., pp.
50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450 (1980): "The
natural reticence of most people to get involved in a criminal case is of
judicial notice. As held in People v. Delfin, '. . . the initial reluctance of
witnesses in this country to volunteer information about a criminal case and
their unwillingness to be involved in or dragged into criminal investigations
is common, and has been judicially declared not to affect credibility.'"
It is noteworthy that the accused-appellant self admitted that he had known
Huntoria for about 10 years and that he and Huntoria were in good terms
and had no misunderstanding whatsoever. (TSN, p. 33, July 18, 1984) He
said that he could not think of any reason why Huntoria should implicate
him. (Id., p. 34) Thus, Huntoria's credibility. is beyond question. 33
The Court of Appeals likewise rejected the appellant's defense of
alibi. 34 The appellate court, however, found the sentence imposed by the
trial court on the accused-appellant erroneous. Said the appellate court:
Finally, we find that the trial court erroneously sentenced the accused-
appellant to 12 years and 1 day to 17 years and 4 months of reclusion
temporal. The penalty for murder under Article 248 is reclusion temporal in
its maximum period to death. As there was no mitigating or aggravating
circumstance, the imposible penalty should be reclusion perpetua.
Consequently, the appeal should have been brought to the Supreme Court.
With regard to the indemnity for death, the award of P40,000.00 should be
reduced to P30,000.00, in accordance with the rulings of the Supreme
Court. (E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v.
Atanacio, 128 SCRA 31 (1984); People v. Rado, 128 SCRA 43 (1984);
People v. Bautista, G.R. No. 68731, Feb. 27, 1987). 35
The case, as mentioned earlier, is now before us upon certification by the
Court of Appeals, the penalty imposed being reclusion perpetua.
After a careful review of the evidence adduced by the prosecution, we find
the same insufficient to convict the appellant of the crime charged.
To begin with, the investigation conducted by the police authorities leave
much to be desired. Patrolman Centeno of the Ajuy police force in his
sworn statements 36 even gave the date of the commission of the crime as
"March 21, 1981." Moreover, the sketch 37 he made of the scene is of little
help. While indicated thereon are the alleged various blood stains and their
locations relative to the scene of the crime, there was however no
indication as to their quantity. This is rather unfortunate for the prosecution
because, considering that there are two versions proferred on where the
killing was carried out, the extent of blood stains found would have
provided a more definite clue as to which version is more credible. If, as
the version of the defense puts it, the killing transpired inside the bedroom
of the Gonzales spouses, there would have been more blood stains inside
the couple's bedroom or even on the ground directly under it. And this
circumstance would provide an additional mooring to the claim of
attempted rape asseverated by Fausta. On the other hand, if the
prosecution's version that the killing was committed in the field near the
linasan is the truth, then blood stains in that place would have been more
than in any other place.
The same sloppiness characterizes the investigation conducted by the
other authorities. Police Corporal Ben Sazon who claimed that accused
Augusto Gonzales surrendered to him on February 23, 1981 failed to state
clearly the reason for the "surrender." It would even appear that Augusto
"surrendered" just so he could be safe from possible revenge by the
victim's kins. Corporal Sazon likewise admitted that Augusto never
mentioned to him the participation of other persons in the killing of the
victim. Finally, without any evidence on that point, P.C. investigators of the
321st P.C. Company who likewise conducted an investigation of the killing
mentioned in their criminal complaint 38 four other unnamed persons, aside
from the spouses Augusto and Fausta Gonzales, to have conspired in
killing Lloyd Peacerrada.
Now on the medical evidence. Dr. Rojas opined that it is possible that the
sixteen wounds described in the autopsy report were caused by two or
more bladed instruments. Nonetheless, he admitted the possibility that one
bladed instrument might have caused all. Thus, insofar as Dr. Rojas'
testimony and the autopsy report are concerned, Fausta Gonzales'
admission that she alone was responsible for the killing appears not at all
too impossible. And then there is the positive testimony of Dr. Rojas that
there were only five wounds that could be fatal out of the sixteen described
in the autopsy report. We shall discuss more the significance of these
wounds later.
It is thus clear from the foregoing that if the conviction of the appellant by
the lower courts is to be sustained, it can only be on the basis of the
testimony of Huntoria, the self-proclaimed eyewitness. Hence, a
meticulous scrutiny of Huntoria's testimony is compelling.
To recollect, Huntoria testified that he clearly saw all the accused, including
the appellant, take turns in hacking and stabbing Lloyd Peacerrada, at
about 8:00 o'clock in the evening, on February 21, 1981, in the field near a
"linasan" while he (Huntoria) stood concealed behind a clump of banana
trees some 15 to 20 meters away from where the crime was being
committed. According to him, he recognized the six accused as the
malefactors because the scene was then illuminated by the moon. He
further stated that the stabbing and hacking took about an hour. But on
cross-examination, Huntoria admitted that he could not determine who
among the six accused did the stabbing and/or hacking and what particular
weapon was used by each of them.
ATTY. GATON (defense counsel on cross-examination):
Q And you said that the moon was bright, is it correct?
A Yes, Sir.
Q And you would like us to understand that you saw the hacking and the
stabbing, at that distance by the herein accused as identified by you?
A Yes, sir, because the moon was brightly shining.
Q If you saw the stabbing and the hacking, will you please tell this
Honorable Court who was hacking the victim?
A Because they were surrounding Peacerrada and were in constant
movement, I could not determine who did the hacking.
ATTY. GATON:
The interpretation is not clear.
COURT:
They were doing it rapidly.
A The moving around or the hacking or the "labu" or "bunu" is rapid. I only
saw the rapid movement of their arms, Your Honor, and I cannot determine
who was hacking and who was stabbing. But I saw the hacking and the
stabbing blow.
ATTY. GATON:
Q You cannot positively identify before this Court who really hacked Lloyd
Peacerrada?
A Yes sir, I cannot positively tell who did the hacking.
Q And likewise you cannot positively tell this Honorable Court who did the
stabbing?
A Yes sir, and because of the rapid movements.
Q I noticed in your direct testimony that you could not even identify the
weapons used because according to you it was just flashing?
A Yes, sir. 39
(Emphasis supplied)
From his very testimony, Huntoria failed to impute a definite and specific
act committed, or contributed, by the appellant in the killing of Lloyd
Peacerrada.
It also bears stressing that there is nothing in the findings of the trial court
and of the Court of Appeals which would categorize the criminal liability of
the appellant as a principal by direct participation under Article 17,
paragraph 1 of the Revised Penal Code. Likewise, there is nothing in the
evidence for the prosecution that inculpates him by inducement, under
paragraph 2 of the same Article 17, or by indispensable cooperation under
paragraph 3 thereof. What then was the direct part in the killing did the
appellant perform to support the ultimate punishment imposed by the Court
of Appeals on him?
Article 4 of the Revised Penal Code provides how criminal liability is
incurred.
Art. 4. Criminal liability Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
ineffectual means.
(Emphasis supplied.)
Thus, one of the means by which criminal liability is incurred is through the
commission of a felony. Article 3 of the Revised Penal Code, on the other
hand, provides how felonies are committed.
Art. 3. Definition Acts and omissions punishable by law are felonies
(delitos).
Felonies are committed not only by means of deceit (dolo) but also by
means of fault (culpa).
There is deceit when the act is performed with deliberate intent; and there
is fault when the wrongful act results from imprudence, negligence, lack of
foresight, or lack of skill.
(Emphasis supplied.)
Thus, the elements of felonies in general are: (1) there must be an act or
omission; (2) the act or omission must be punishable under the Revised
Penal Code; and (3) the act is performed or the omission incurred by
means of deceit or fault.
Here, while the prosecution accuses, and the two lower courts both found,
that the appellant has committed a felony in the killing of Lloyd
Peacerrada, forsooth there is paucity of proof as to what act was
performed by the appellant. It has been said that "act," as used in Article 3
of the Revised Penal Code, must be understood as "any bodily movement
tending to produce some effect in the external world." 40 In this instance,
there must therefore be shown an "act" committed by the appellant which
would have inflicted any harm to the body of the victim that produced his
death.
Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he
did not see who "stabbed" or who "hacked" the victim. Thus this principal
witness did not say, because he could not whether the appellant "hacked
or "stabbed" victim. In fact, Huntoria does not know what specific act was
performed by the appellant. This lack of specificity then makes the case fall
short of the test laid down by Article 3 of the Revised Penal Code
previously discussed. Furthermore, the fact that the victim sustained only
five fatal wounds out of the total of sixteen inflicted, as adverted to above,
while there are six accused charged as principals, it follows to reason that
one of the six accused could not have caused or dealt a fatal wound. And
this one could as well be the appellant, granted ex gratia argumenti that he
took part in the hacking and stabbing alleged by Huntoria. And why not
him? Is he not after all the oldest (already sexagenarian at that time) and
practically the father of the five accused? And pursuing this argument to
the limits of its logic, it is possible, nay even probable, that only four, or
three, or two of the accused could have inflicted all the five fatal wounds to
the exclusion of two, three, or four of them. And stretching the logic further,
it is possible, nay probable, that all the fatal wounds, including even all the
non-fatal wounds, could have been dealt by Fausta in rage against the
assault on her womanhood and honor. But more importantly, there being
not an iota of evidence that the appellant caused any of the said five fatal
wounds, coupled with the prosecution's failure to prove the presence of
conspiracy beyond reasonable doubt, the appellant's conviction can not be
sustained.
Additionally, Huntoria's credibility as a witness is likewise tarnished by the
fact that he only came out to testify in October 1981, or eight long months
since he allegedly saw the killing on February 21, 1981. While ordinarily
the failure of a witness to report at once to the police authorities the crime
he
had witnessed should not be taken against him and should not affect his
credibility, 41 here, the unreasonable delay in Huntoria's coming out
engenders doubt on his veracity. 42 If the silence of coming out an alleged
eyewitness for several weeks renders his credibility doubtful, 43 the more it
should be for one who was mute for eight months. Further, Huntoria's long
delay in reveiling what he allegedly witnessed, has not been satisfactorily
explained. His lame excuse that he feared his life would be endangered is
too pat to be believed. There is no showing that he was threatened by the
accused or by anybody. And if it were true that he feared a possible
retaliation from the accused, 44 why did he finally volunteer to testify
considering that except for the spouses Augusto and Fausta Gonzales who
were already under police custody, the rest of the accused were then still
free and around; they were not yet named in the original
information, 45 thus the supposed danger on Huntoria's life would still be
clear and present when he testified.
Moreover, Huntoria is not exactly a disinterested witness as portrayed by
the prosecution. He admitted that he was a tenant of the deceased. In fact,
he stated that one of the principal reasons why he testified was because
the victim was also his landlord.
xxx xxx xxx
Q Now, Mr. Huntoria, why did it take you so long from the time you saw the
stabbing and hacking of Lloyd Peacerrada when you told Mrs.
Peacerrada about what happened to her husband?
A At first I was then afraid to tell anybody else but because I was haunted
by my conscience and secondly the victim was also my landlord I revealed
what I saw to the wife of the victim. 46
xxx xxx xxx
(Emphasis ours.)
At this juncture, it may be relevant to remind that under our socioeconomic
set-up, a tenant owes the very source of his livelihood, if not existence
itself, from his landlord who provides him with the land to till. In this milieu,
tenants like Huntoria are naturally beholden to their landlords and seek
ways and means to ingratiate themselves with the latter. In this instance,
volunteering his services as a purported eyewitness and providing that
material testimony which would lead to the conviction of the entire family of
Augusto Gonzales whose wife, Fausta, has confessed to the killing of
Lloyd Peacerrada, would, in a perverted sense, be a way by which
Huntoria sought to ingratiate himself with the surviving family of his
deceased landlord. This is especially so because the need to get into the
good graces of his landlord's family assumed a greater urgency
considering that he ceased to be employed as early as May
1981. 47 Volunteering his services would alleviate the financial distress he
was in. And Huntoria proved quite sagacious in his choice of action for
shortly after he volunteered and presented himself to the victim's widow, he
was taken under the protective wings of the victim's uncle, one Dr. Biclar,
who gave him employment and provided lodging for his family. 48 Given all
the foregoing circumstances, we can not help but dismiss Huntoria as an
unreliable witness, to say the least.
At any rate, there is another reason why we find the alleged participation of
the appellant in the killing of Lloyd Peacerrada doubtful it is contrary to
our customs and traditions. Under the Filipino family tradition and culture,
aging parents are sheltered and insulated by their adult children from any
possible physical and emotional harm. It is therefore improbable for the
other accused who are much younger and at the prime of their manhood,
to summon the aid or allow the participation of their 65-year old 49 father,
the appellant, in the killing of their lone adversary, granting that the victim
was indeed an adversary. And considering that the appellant's residence
was about one kilometer from the scene of the crime, 50 we seriously doubt
that the appellant went there just for the purpose of aiding his three robust
male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother
and sister, Rogelio and Fausta, in the killing of Lloyd Peacerrada, even if
the latter were a perceived enemy.
Finally, while indeed alibi is a weak defense, 51 under appropriate
circumstances, like in the instant case in which the participation of the
appellant is not beyond cavil it may be considered as exculpatory. Courts
should not at once look with disfavor at the defense of alibi for if taken in
the light of the other evidence on record, it may be sufficient to acquit the
accused. 52
In fine, the guilt of the appellant has not been proven beyond reasonable
doubt.
WHEREFORE, the Decision of the Court of Appeals is REVERSED and
SET ASIDE and the appellant is hereby ACQUITTED. Costs de oficio.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
G.R. No. 97471 February 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y
PUNO, alias "Enry," accused-appellants.
The Solicitor General for plaintiff-appellee.
Edward C. Castaeda for accused-appellants.
REGALADO, J.:
The primal issue for resolution in this case is whether accused-appellants
committed the felony of kidnapping for ransom under Article 267 of the
Revised Penal Code, as charged in the information; or a violation of
Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of
1974), as contended by the Solicitor General and found by the trial court;
or the offense of simple robbery punished by Paragraph 5, Article 294 of
the Revised Penal Code, as claimed by the defense.
In an information dated and filed on May 31, 1989 in the Regional Trial
Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof,
appellants were charged with kidnapping for ransom allegedly committed
in the following manner:
That on or about the 13th day of January, 1988 in Quezon City, Philippines
and within the jurisdiction of this Honorable Court, the said accused, being
then private individuals, conspiring together, confederating with and
mutually helping each other, did, then and there, wilfully, unlawfully and
feloniously kidnap and carry away one MARIA DEL SOCORRO
SARMIENTO y MUTUC * for the purpose of extorting ransom, to the
damage and prejudice of the said offended party in such amount as may
be awarded to her under the provisions of the Civil Code. 1
On a plea of not guilty when arraigned, 2 appellants went to trial which
ultimately resulted in a judgment promulgated on September 26, 1990
finding them guilty of robbery with extortion committed on a highway,
punishable under Presidential Decree No. 532, with this disposition in
the fallo thereof:
ACCORDINGLY, judgment is hereby rendered finding the accused
ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery
with extortion committed on a highway and, in accordance with P.D. 532,
they are both sentenced to a jail term of reclusion perpetua.
The two accused are likewise ordered to pay jointly and severally the
offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as
actual damages and P3,000.00 as temperate damages. 3
Before us now in this appeal, appellants contend that the court a quo erred
(1) in convicting them under Presidential Decree No. 532 since they were
not expressly charged with a crime therein; (2) in applying Sections 4 and
5, Rule 120 of the Rules of Court since the charge under said presidential
decree is not the offense proved and cannot rightly be used as the offense
proved which is necessarily included in the offense charged. 4
For the material antecedents of this case, we quote with approval the
following counter-statement of facts in the People's brief 5 which adopted
the established findings of the court a quo, documenting the same with
page references to the transcripts of the proceedings, and which we note
are without any substantial divergence in the version proffered by the
defense.
This is a prosecution for kidnapping for ransom allegedly done on January
13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue,
Quezon City called Nika Cakes and Pastries. She has a driver of her own
just as her husband does (Ibid., pp. 4-6).
At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo
Puno, who is the personal driver of Mrs. Sarmiento's husband (who was
then away in Davao purportedly on account of local election there) arrived
at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go
to Pampanga on an emergency (something bad befell a child), so Isabelo
will temporary (sic) take his place (Id., pp. 8-9).
Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she
got into the Mercedes Benz of her husband with Isabelo on (sic) the wheel.
After the car turned right in (sic) a corner of Araneta Avenue, it stopped. A
young man, accused Enrique Amurao, boarded the car beside the driver
(Id., pp. 9-10).
Once inside, Enrique clambered on top of the back side of the front seat
and went onto where Ma. Socorro was seated at the rear. He poke (sic) a
gun at her (Id., p. 10).
Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm,
you know, I want to get money from you." She said she has money inside
her bag and they may get it just so they will let her go. The bag contained
P7,000.00 and was taken (Id., pp. 11-14).
Further on, the two told her they wanted P100,000.00 more. Ma. Socorro
agreed to give them that but would they drop her at her gas station in
Kamagong St., Makati where the money is? The car went about the Sta.
Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed.
Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown,
perfumed neck. He said he is an NPA and threatened her (Id., p.15).
The car sped off north towards the North superhighway. There Isabelo,
Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00.
Ma. Socorro complied. She drafted 3 checks in denominations of two for
P30 thousand and one for P40 thousand. Enrique ordered her to swallow a
pill but she refused (Id., pp. 17-23).
Beloy turned the car around towards Metro Manila. Later, he changed his
mind and turned the car again towards Pampanga. Ma. Socorro, according
to her, jumped out of the car then, crossed to the other side of the
superhighway and, after some vehicles ignored her, she was finally able to
flag down a fish vendors van. Her dress had blood because, according to
Ma. Socorro, she fell down on the ground and was injured when she
jumped out of the car. Her dress was torn too (Id., pp. 23-26).
On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id.,
p. 27).
Both accused were, day after, arrested. Enrique was arrested trying to
encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct.
18, 1989, pp. 10-13) 6
As observed by the court below, the defense does not dispute said
narrative of complainant, except that, according to appellant Puno, he
stopped the car at North Diversion and freely allowed complainant to step
out of the car. He even slowed the car down as he drove away, until he
saw that his employer had gotten a ride, and he claimed that she fell down
when she stubbed her toe while running across the highway. 7
Appellants further testified that they brought the Mercedez Benz car to
Dolores, San Fernando, Pampanga and parked it near a barangay or
police outpost. They thereafter ate at a restaurant and divided their
loot. 8 Much later, when he took the stand at the trial of this case, appellant
Puno tried to mitigate his liability by explaining that he was in dire need of
money for the medication of his ulcers. 9
On these relatively simple facts, and as noted at the start of this opinion,
three theories have been advanced as to what crime was committed by
appellants. The trial court cohered with the submission of the defense that
the crime could not be kidnapping for ransom as charged in the
information. We likewise agree.
Prefatorily, it is worth recalling an accepted tenet in criminal law that in the
determination of the crime for which the accused should be held liable in
those instances where his acts partake of the nature of variant offenses,
and the same holds true with regard to the modifying or qualifying
circumstances thereof, his motive and specific intent in perpetrating the
acts complained of are invaluable aids in arriving at a correct appreciation
and accurate conclusion thereon.
Thus, to illustrate, the motive of the accused has been held to be relevant
or essential to determine the specific nature of the crime as, for instance,
whether a murder was committed in the furtherance of rebellion in which
case the latter absorbs the former, or whether the accused had his own
personal motives for committing the murder independent of his
membership in the rebellious movement in which case rebellion and
murder would constitute separate offenses. 10 Also, where injuries were
inflicted on a person in authority who was not then in the actual
performance of his official duties, the motive of the offender assumes
importance because if the attack was by reason of the previous
performance of official duties by the person in authority, the crime would be
direct assault; otherwise, it would only be physical injuries. 11
In the case at bar, there is no showing whatsoever that appellants had any
motive, nurtured prior to or at the time they committed the wrongful acts
against complainant, other than the extortion of money from her under the
compulsion of threats or intimidation. This much is admitted by both
appellants, without any other esoteric qualification or dubious justification.
Appellant Puno, as already stated, candidly laid the blame for his
predicament on his need for funds for, in his own testimony, "(w)hile we
were along the way Mam (sic) Corina was telling me "Beloy, I know your
family very well and I know that your (sic) not (a) bad person, why are you
doing this?" I told her "Mam, (sic), because I need money and I had an
ulcer and that I have been getting an (sic) advances from our office but
they refused to give me any bale (sic). . . ." 12
With respect to the specific intent of appellants vis-a-vis the charge that
they had kidnapped the victim, we can rely on the proverbial rule of ancient
respectability that for this crime to exist, there must be indubitable proof
that
the actual intent of the malefactors was to deprive the offended party of her
liberty, 13 and not where such restraint of her freedom of action was merely
an incident in the commission of another offense primarily intended by the
offenders. Hence, as early as United States vs. Ancheta, 14 and
consistently reiterated thereafter, 15 it has been held that the detention
and/or forcible taking away of the victims by the accused, even for an
appreciable period of time but for the primary and ultimate purpose of
killing them, holds the offenders liable for taking their lives or such other
offenses they committed in relation thereto, but the incidental deprivation of
the victims' liberty does not constitute kidnapping or serious illegal
detention.
That appellants in this case had no intention whatsoever to kidnap or
deprive the complainant of her personal liberty is clearly demonstrated in
the veritably confessional testimony of appellant Puno:
Q At what point did Mrs. Sarmiento handed (sic) the bag containing the
P7,000.00 to your nephew?
A Santo Domingo Exit.
Q And how about the checks, where were you already when the checks
was (sic) being handed to you?
A Also at the Sto. Domingo exit when she signed the checks.
Q If your intention was just to robbed (sic) her, why is it that you still did not
allow her to stay at Sto. Domingo, after all you already received the money
and the checks?
A Because we had an agreement with her that when she signed the
checks we will take her to her house at Villa (sic) Verde.
Q And why did you not bring her back to her house at Valle Verde when
she is (sic) already given you the checks?
A Because while we were on the way back I (sic) came to my mind that if
we reach Balintawak or some other place along the way we might be
apprehended by the police. So when we reached Santa Rita exit I told her
"Mam (sic) we will already stop and allow you to get out of the car." 16
Neither can we consider the amounts given to appellants as equivalent to
or in the nature of ransom, considering the immediacy of their obtention
thereof from the complainant personally. Ransom, in municipal criminal
law, is the money, price or consideration paid or demanded for redemption
of a captured person or persons, a payment that releases from
captivity. 17 It can hardly be assumed that when complainant readily gave
the cash and checks demanded from her at gun point, what she gave
under the circumstances of this case can be equated with or was in the
concept of ransom in the law of kidnapping. These were merely amounts
involuntarily surrendered by the victim upon the occasion of a robbery or of
which she was summarily divested by appellants. Accordingly, while we
hold that the crime committed is robbery as defined in Article 293 of the
Code, we, however, reject the theory of the trial court that the same
constitutes the highway robbery contemplated in and punished by
Presidential Decree No. 532.
The lower court, in support of its theory, offers this ratiocination:
The court agrees that the crime is robbery. But it is also clear from the
allegation in the information that the victim was carried away and extorted
for more money. The accused admitted that the robbery was carried on
from Araneta Avenue up to the North Superhighway. They likewise
admitted that along the way they intimidated Ma. Socorro to produce more
money that she had with her at the time for which reason Ma. Socorro, not
having more cash, drew out three checks. . . .
In view of the foregoing the court is of the opinion that the crimes
committed is that punishable under P.D. 532 (Anti-Piracy and Anti-Highway
Robbery Law of 1974) under which where robbery on the highway is
accompanied by extortion the penalty is reclusion perpetua. 18
The Solicitor General concurs, with the observation that pursuant to the
repealing clause in Section 5 of said decree, "P.D. No- 532 is a
modification of the provisions of the Revised Penal Code, particularly
Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission
consequently necessitate an evaluation of the correct interplay between
and the legal effects of Presidential Decree No. 532 on the pertinent
Provisions of the Revised Penal Code, on which matter we are not aware
that any definitive pronouncement has as yet been made.
Contrary to the postulation of the Solicitor General, Presidential Decree
No. 532 is not a modification of Article 267 of the Revised Penal Code on
kidnapping and serious illegal detention, but of Articles 306 and 307 on
brigandage. This is evident from the fact that the relevant portion thereof
which treats of "highway robbery" invariably uses this term in the
alternative and synonymously with brigandage, that is, as "highway
robbery/brigandage." This is but in line with our previous ruling, and which
still holds sway in criminal law, that highway robbers (ladrones) and
brigands are synonymous. 20
Harking back to the origin of our law on brigandage (bandolerismo) in order
to put our discussion thereon in the proper context and perspective, we
find that a band of brigands, also known as highwaymen or freebooters, is
more than a gang of ordinary robbers. Jurisprudence on the matter reveals
that during the early part of the American occupation of our country, roving
bands were organized for robbery and pillage and since the then existing
law against robbery was inadequate to cope with such moving bands of
outlaws, the Brigandage Law was passed. 21
The following salient distinctions between brigandage and robbery are
succinctly explained in a treatise on the subject and are of continuing
validity:
The main object of the Brigandage Law is to prevent the formation of
bands of robbers. The heart of the offense consists in the formation of a
band by more than three armed persons for the purpose indicated in art.
306. Such formation is sufficient to constitute a violation of art. 306. It
would not be necessary to show, in a prosecution under it, that a member
or members of the band actually committed robbery or kidnapping or any
other purpose attainable by violent means. The crime is proven when the
organization and purpose of the band are shown to be such as are
contemplated by art 306. On the other hand, if robbery is committed by a
band, whose members were not primarily organized for the purpose of
committing robbery or kidnapping, etc., the crime would not be brigandage,
but only robbery. Simply because robbery was committed by a band of
more than three armed persons, it would not follow that it was committed
by a band of brigands. In the Spanish text of art. 306, it is required that the
band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied).
In fine, the purpose of brigandage is, inter alia, indiscriminate highway
robbery. If the purpose is only a particular robbery, the crime is only
robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating
Presidential Decree No. 532 for the objectives announced therein, could
not have been unaware of that distinction and is presumed to have
adopted the same, there being no indication to the contrary. This
conclusion is buttressed by the rule on contemporaneous construction,
since it is one drawn from the time when and the circumstances under
which the decree to be construed originated. Contemporaneous exposition
or construction is the best and strongest in the law. 24
Further, that Presidential Decree No. 532 punishes as highway robbery or
brigandage only acts of robbery perpetrated by outlaws indiscriminately
against any person or persons on Philippine highways as defined therein,
and not acts of robbery committed against only a predetermined or
particular victim, is evident from the preambular clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that lawless
elements are still committing acts of depredation upon the persons and
properties of innocent and defenseless inhabitants who travel from one
place to another, thereby disturbing the peace, order and tranquility of the
nation and stunting the economic and social progress of the people:
WHEREAS, such acts of depredations constitute . . . highway
robbery/brigandage which are among the highest forms of lawlessness
condemned by the penal statutes of all countries;
WHEREAS, it is imperative that said lawless elements be discouraged
from perpetrating such acts of depredaions by imposing heavy penalty on
the offenders, with the end in view of eliminating all obstacles to the
economic, social, educational and community progress of the people.
(Emphasis supplied).
Indeed, it is hard to conceive of how a single act of robbery against a
particular person chosen by the accused as their specific victim could be
considered as committed on the "innocent and defenseless inhabitants
who travel from one place to another," and which single act of depredation
would be capable of "stunting the economic and social progress of the
people" as to be considered "among the highest forms of lawlessness
condemned by the penal statutes of all countries," and would accordingly
constitute an obstacle "to the economic, social, educational and community
progress of the people, " such that said isolated act would constitute the
highway robbery or brigandage contemplated and punished in said decree.
This would be an exaggeration bordering on the ridiculous.
True, Presidential Decree No. 532 did introduce amendments to Articles
306 and 307 of the Revised Penal Code by increasing the penalties, albeit
limiting its applicability to the offenses stated therein when committed on
the highways and without prejudice to the liability for such acts if
committed. Furthermore, the decree does not require that there be at least
four armed persons forming a band of robbers; and the presumption in the
Code that said accused are brigands if they use unlicensed firearms no
longer obtains under the decree. But, and this we broadly underline, the
essence of brigandage under the Code as a crime of depredation wherein
the unlawful acts are directed not only against specific, intended or
preconceived victims, but against any and all prospective victims anywhere
on the highway and whosoever they may potentially be, is the same as the
concept of brigandage which is maintained in Presidential Decree No. 532,
in the same manner as it was under its aforementioned precursor in the
Code and, for that matter, under the old Brigandage Law. 25
Erroneous advertence is nevertheless made by the court below to the fact
that the crime of robbery committed by appellants should be covered by
the said amendatory decree just because it was committed on a highway.
Aside from what has already been stressed regarding the absence of the
requisite elements which thereby necessarily puts the offense charged
outside the purview and intendment of that presidential issuance, it would
be absurd to adopt a literal interpretation that any unlawful taking of
property committed on our highways would be covered thereby. It is an
elementary rule of statutory construction that the spirit or intent of the law
should not be subordinated to the letter thereof. Trite as it may appear, we
have perforce to stress the elementary caveat that he who considers
merely the letter of an instrument goes but skin deep into its
meaning, 26 and the fundamental rule that criminal justice inclines in favor
of the milder form of liability in case of doubt.
If the mere fact that the offense charged was committed on a highway
would be the determinant for the application of Presidential Decree No.
532, it would not be farfetched to expect mischievous, if not absurd, effects
on the corpus of our substantive criminal law. While we eschew resort to
a reductio ad absurdum line of reasoning, we apprehend that the
aforestated theory adopted by the trial court falls far short of the
desideratum in the interpretation of laws, that is, to avoid absurdities and
conflicts. For, if a motor vehicle, either stationary or moving on a highway,
is forcibly taken at gun point by the accused who happened to take a fancy
thereto, would the location of the vehicle at the time of the unlawful taking
necessarily put the offense within the ambit of Presidential Decree No. 532,
thus rendering nugatory the categorical provisions of the Anti-Carnapping
Act of 1972? 27 And, if the scenario is one where the subject matter of the
unlawful asportation is large cattle which are incidentally being herded
along and traversing the same highway and are impulsively set upon by
the accused, should we apply Presidential Decree No. 532 and completely
disregard the explicit prescriptions in the Anti-Cattle Rustling Law of
1974? 28
We do not entertain any doubt, therefore, that the coincidental fact that the
robbery in the present case was committed inside a car which, in the
natural course of things, was casually operating on a highway, is not within
the situation envisaged by Section 2(e) of the decree in its definition of
terms. Besides, that particular provision precisely defines "highway
robbery/brigandage" and, as we have amply demonstrated, the single act
of robbery conceived and committed by appellants in this case does not
constitute highway robbery or brigandage.
Accordingly, we hold that the offense committed by appellants is simple
robbery defined in Article 293 and punished under Paragraph 5 of Article
294 of the Revised Penal Code with prision correccional in its maximum
period to prision mayor in its medium period. Appellants have indisputably
acted in conspiracy as shown by their concerted acts evidentiary of a unity
of thought and community of purpose. In the determination of their
respective liabilities, the aggravating circumstances of craft 29 shall be
appreciated against both appellants and that of abuse of confidence shall
be further applied against appellant Puno, with no mitigating circumstance
in favor of either of them. At any rate, the intimidation having been made
with the use of a firearm, the penalty shall be imposed in the maximum
period as decreed by Article 295 of the Code.
We further hold that there is no procedural obstacle to the conviction of
appellants of the crime of simple robbery upon an information charging
them with kidnapping for ransom, since the former offense which has been
proved is necessarily included in the latter offense with which they are
charged. 30 For the former offense, it is sufficient that the elements of
unlawful taking, with intent to gain, of personal property through
intimidation of the owner or possessor thereof shall be, as it has been,
proved in the case at bar. Intent to gain (animus lucrandi) is presumed to
be alleged in an information where it is charged that there was unlawful
taking (apoderamiento) and appropriation by the offender of the things
subject of the robbery. 31
These foregoing elements are necessarily included in the information filed
against appellants which, as formulated, allege that they wilfully, unlawfully
and feloniously kidnapped and extorted ransom from the complainant.
Such allegations, if not expressly but at the very least by necessary
implication, clearly convey that the taking of complainant's money and
checks (inaccurately termed as ransom) was unlawful, with intent to gain,
and through intimidation. It cannot be logically argued that such a charge
of kidnapping for ransom does not include but could negate the presence
of any of the elements of robbery through intimidation of persons. 32
WHEREFORE, the assailed judgment of the trial court is hereby SET
ASIDE and another one is rendered CONVICTING accused-appellants
Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as
Punished in Paragraph 5 of Article 294, in relation to Article 295, of the
Revised Penal Code and IMPOSING on each of them an indeterminate
sentence of four (4) years and two (2) months of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum, and jointly and
severally pay the offended party, Maria del Socorro M. Sarmiento, the
amounts of P7,000.00 as actual damages and P20,000.00 as moral
damages, with costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.
G.R. No. 504 September 16, 1902 Arellano, C.J., Cooper, Smith, Willard, and Mapa, JJ., concur.
THE UNITED STATES, complainant-appellant,
vs.
TOMASA DE LOS REYES, defendant-appellee.
Office of the Solicitor-General Araneta, for appellant.
Manuel Torres, for private prosecutor.
Alfredo Chicote, for appellee.
LADD, J.:
This is an appeal from the Court of First Instance of Manila, taken by the
complaining witness, Julian Gonzalez, from a judgment of acquittal, upon a
complaint for bigamy under article 471 of the Penal Code.
The defendant was married to the complaining witness in Manila, May 27,
1897. After living together in Manila for a time they separated, the
defendant remaining in the house where they had been previously living
until some time subsequent to July 12, 1900. On that day she was married
in Manila by a Protestant clergyman to Ramon Martinez. Her defense is
that she honestly believed her first husband was dead when she married
Martinez.
It appears that the mother and some other relatives of Gonzalez lived, after
the separation, in the same house with the defendant. Gonzalez testifies
that the separation took place in March, 1900, and that he also lived for
some months in the lower story of the same house, the defendant living in
the upper story. He further testifies that after he left this house and went to
live elsewhere he visited his relatives there nearly every day down to a few
days before the trial, which took place in September, 1901. He says that he
often saw his wife at these times, supplying her with means for her support
through his relatives, but that he never spoke with her. A short time after
her second marriage the defendant moved away from the house and has
since lived elsewhere.
The defendant testifies that she and Gonzalez had been living together a
year and two months when the separation took place. That would fix the
date of the separation in July, 1898. She testifies that some time during the
year following the separation she was told by the mother of Gonzalez that
she had been informed that her son was dead, that thereupon prayers
were said for his soul for nine nights, and that she put on mourning and
wore it a year. She says that she contracted the second marriage with the
consent of the mother of Gonzalez, and believing that the information
which she had received from her as to the death of Gonzalez was true. The
mother of Gonzalez died before the trial.
There was some further evidence from other witnesses on both sides, but
it was of such a character as to throw but little light upon the facts of the
case. On the whole, we have reached the conclusion, though not without
some hesitation, that the story told by the defendant is in the main more
likely to be true than false, and that she probably did contract the second
marriage under a bona fide belief that the first marriage had been
dissolved by the death of Gonzalez.
We have recently held, in the United States vs. Marcosa Pealosa and
Enrique Rodriguez, decided January 27, 1902, that there can be no
conviction under article 475 of the Penal Code, where by reason of a
mistake of fact the intention to commit the crime does not exist, and we
think the same principle must apply to this case. The defendant was
therefore properly acquitted of the crime charged in the complaint.
We are, however, of the opinion that the defendant is chargeable with
criminal negligence in contracting the second marriage, and should have
been convicted under article 568 of the Penal Code. (See G.O., No. 58,
sec. 29.) It does not appear that she made any attempt to ascertain for
herself whether the information received by her mother-in-law as to the
death of Gonzalez was to be relied upon. She never even saw or
communicated directly in any way with the persons who gave her mother-
in-law this information. Moreover, viewing the testimony in the light most
favorable to her, she waited less than two years after hearing the death of
her husband before contracting the second marriage. The diligence with
which the law requires the individual at all times to govern his conduct
varies with the nature of the situation in which he is to perform. In a matter
so important to the good order of society as that in question, where the
consequences of a mistake are necessarily so serious, nothing less than
the highest degree of diligence will satisfy the standard prescribed by the
law. We can not say that the defendant has acted with that diligence in the
present case.
Applying the provisions of article 568 of the Penal Code, the act of
contracting a second or subsequent marriage, the prior marriage not
having been lawfully dissolved, being one which, if done with malice, would
constitute a grave crime, the offense committed by the defendant is
punishable by arresto mayor in its maximum degree to prision
correccional in its minimum degree. There being no aggravating
circumstance, and as we think the extenuating circumstance of article 11 of
the Penal Code may properly be considered in this case, this penalty
should be applied in its minimum degree.
We therefore sentence the defendant to four months and one day
of arresto mayor and costs. The judgment of the court below will be
modified in accordance with this opinion. So ordered.
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is
limited to the testimony of the accused himself, because from the very
nature of these facts and from the circumstances surrounding the incident
upon which these proceedings rest, no other evidence as to these facts
was available either to the prosecution or to the defense. We think,
however, that, giving the accused the benefit of the doubt as to the weight
of the evidence touching those details of the incident as to which there can
be said to be any doubt, the following statement of the material facts
disclose by the record may be taken to be substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters,
No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual
Gualberto, deceased, was employed as a house boy or muchacho.
"Officers' quarters No. 27" as a detached house situates some 40 meters
from the nearest building, and in August, 19087, was occupied solely as an
officers' mess or club. No one slept in the house except the two servants,
who jointly occupied a small room toward the rear of the building, the door
of which opened upon a narrow porch running along the side of the
building, by which communication was had with the other part of the house.
This porch was covered by a heavy growth of vines for its entire length and
height. The door of the room was not furnished with a permanent bolt or
lock, and occupants, as a measure of security, had attached a small hook
or catch on the inside of the door, and were in the habit of reinforcing this
somewhat insecure means of fastening the door by placing against it a
chair. In the room there was but one small window, which, like the door,
opened on the porch. Aside from the door and window, there were no other
openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who
had received for the night, was suddenly awakened by some trying to force
open the door of the room. He sat up in bed and called out twice, "Who is
there?" He heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing his way into
the room. Due to the heavy growth of vines along the front of the porch, the
room was very dark, and the defendant, fearing that the intruder was a
robber or a thief, leaped to his feet and called out. "If you enter the room, I
will kill you." At that moment he was struck just above the knee by the edge
of the chair which had been placed against the door. In the darkness and
confusion the defendant thought that the blow had been inflicted by the
person who had forced the door open, whom he supposed to be a burglar,
though in the light of after events, it is probable that the chair was merely
thrown back into the room by the sudden opening of the door against
which it rested. Seizing a common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch
and fell down on the steps in a desperately wounded condition, followed by
the defendant, who immediately recognized him in the moonlight. Seeing
that Pascual was wounded, he called to his employers who slept in the
next house, No. 28, and ran back to his room to secure bandages to bind
up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the
date of the incident just described, one of which took place in a house in
which the defendant was employed as cook; and as defendant alleges, it
was because of these repeated robberies he kept a knife under his pillow
for his personal protection.
The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the
door and acquiant his companion with his identity. Pascual had left the
house early in the evening and gone for a walk with his friends, Celestino
Quiambao and Mariano Ibaez, servants employed at officers' quarters No.
28, the nearest house to the mess hall. The three returned from their walk
at about 10 o'clock, and Celestino and Mariano stopped at their room at
No. 28, Pascual going on to his room at No. 27. A few moments after the
party separated, Celestino and Mariano heard cries for assistance and
upon returning to No. 27 found Pascual sitting on the back steps fatally
wounded in the stomach, whereupon one of them ran back to No. 28 and
called Liuetenants Jacobs and Healy, who immediately went to the aid of
the wounded man.
The defendant then and there admitted that he had stabbed his roommate,
but said that he did it under the impression that Pascual was "a ladron"
because he forced open the door of their sleeping room, despite
defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief was
playing a trick on his Chinese roommate, and sought to frightened him by
forcing his way into the room, refusing to give his name or say who he was,
in order to make Ah Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed
to the military hospital, where he died from the effects of the wound on the
following day.
The defendant was charged with the crime of assassination, tried, and
found guilty by the trial court of simple homicide, with extenuating
circumstances, and sentenced to six years and one day presidio mayor,
the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right of
self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt from criminal
liability:
xxx xxx xxx
4 He who acts in defense of his person or rights, provided there are the
following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending
himself.
Under these provisions we think that there can be no doubt that defendant
would be entitle to complete exception from criminal liability for the death of
the victim of his fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the
right of the defendant to resist and repel such an intrusion, and the thief
having forced open the door notwithstanding defendant's thrice-repeated
warning to desist, and his threat that he would kill the intruder if he
persisted in his attempt, it will not be questioned that in the darkness of the
night, in a small room, with no means of escape, with the thief advancing
upon him despite his warnings defendant would have been wholly justified
in using any available weapon to defend himself from such an assault, and
in striking promptly, without waiting for the thief to discover his
whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the
property under his charge was in real danger at the time when he struck
the fatal blow. That there was no such "unlawful aggression" on the part of
a thief or "ladron" as defendant believed he was repelling and resisting,
and that there was no real "necessity" for the use of the knife to defend his
person or his property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one
can be held criminally responsible who, by reason of a mistake as to the
facts, does an act for which he would be exempt from criminal liability if the
facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of
the facts at the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such circumstances
there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake
of fact is sufficient to negative a particular intent which under the law is a
necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the
circumstances demand a conviction under the penal provisions touching
criminal negligence; and in cases where, under the provisions of article 1
of the Penal Code one voluntarily committing a crime or misdeamor incurs
criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law,
sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited;
Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213;
Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the
only question worthy of consideration is whether malice or criminal intent is
an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been
said that since the definitions there given of these as well as most other
crimes and offense therein defined, do not specifically and expressly
declare that the acts constituting the crime or offense must be committed
with malice or with criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the various
definitions subjects the actor to the penalties described therein, unless it
appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is
true that contrary to the general rule of legislative enactment in the United
States, the definitions of crimes and offenses as set out in the Penal Code
rarely contain provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the general provisions
of article 1 of the code clearly indicate that malice, or criminal intent in
some form, is an essential requisite of all crimes and offense therein
defined, in the absence of express provisions modifying the general rule,
such as are those touching liability resulting from acts negligently or
imprudently committed, and acts done by one voluntarily committing a
crime or misdemeanor, where the act committed is different from that which
he intended to commit. And it is to be observed that even these exceptions
are more apparent than real, for "There is little distinction, except in
degree, between a will to do a wrongful thing and indifference whether it is
done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol.
1, s. 313); and, again, "There is so little difference between a disposition to
do a great harm and a disposition to do harm that one of them may very
well be looked upon as the measure of the other. Since, therefore, the guilt
of a crime consists in the disposition to do harm, which the criminal shows
by committing it, and since this disposition is greater or less in proportion to
the harm which is done by the crime, the consequence is that the guilt of
the crime follows the same proportion; it is greater or less according as the
crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11);
or, as it has been otherwise stated, the thing done, having proceeded from
a corrupt mid, is to be viewed the same whether the corruption was of one
particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by
law.
Acts and omissions punished by law are always presumed to be voluntarily
unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur
criminal liability, even though the wrongful act committed be different from
that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the
word "voluntary" as used in this article, say that a voluntary act is a free,
intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and that
the word "voluntary" implies and includes the words "con malicia," which
were expressly set out in the definition of the word "crime" in the code of
1822, but omitted from the code of 1870, because, as Pacheco insists,
their use in the former code was redundant, being implied and included in
the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can
only be said to exempt from criminal responsibility when the act which was
actually intended to be done was in itself a lawful one, and in the absence
of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general
without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we
have shown above, the exceptions insisted upon by Viada are more
apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that
where there is no intention there is no crime . . . in order to affirm, without
fear of mistake, that under our code there can be no crime if there is no
act, an act which must fall within the sphere of ethics if there is no moral
injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of
Spain, as, for example in its sentence of May 31, 1882, in which it made
use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the
malice which is supposed from the operation of the will and an intent to
cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of his
three sons, made by the appellant in the civil registry and in the parochial
church, there can be no crime because of the lack of the necessary
element or criminal intention, which characterizes every action or
ommission punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use
of the following language:
. . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and punished
by law as criminal, is not a necessary question of fact submitted to the
exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be
an essential element of the various crimes and misdemeanors therein
defined becomes clear also from an examination of the provisions of article
568, which are as follows:
He who shall execute through reckless negligence an act that, if done with
malice, would constitute a grave crime, shall be punished with the penalty
of arresto mayor in its maximum degree, to prision correccional in its
minimum degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its
medium and maximum degrees.
In the application of these penalties the courts shall proceed according to
their discretion, without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in the first
paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that
the commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any
criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American
statute to designate a form of criminal intent. It has been said that while the
word "willful" sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extent a little further and
approximate the idea of the milder kind of legal malice; that is, it signifies
an evil intent without justifiable excuse. In one case it was said to mean, as
employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And
Shaw, C. J., once said that ordinarily in a statute it means "not merely
`voluntarily' but with a bad purpose; in other words, corruptly." In English
and the American statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are words indicating intent, more
purely technical than "willful" or willfully," but "the difference between them
is not great;" the word "malice" not often being understood to require
general malevolence toward a particular individual, and signifying rather
the intent from our legal justification. (Bishop's New Criminal Law, vol. 1,
secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a
condition in the definition of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice aforethought," or in one of the various
modes generally construed to imply a criminal intent, we think that
reasoning from general principles it will always be found that with the rare
exceptions hereinafter mentioned, to constitute a crime evil intent must
combine with an act. Mr. Bishop, who supports his position with numerous
citations from the decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the
rule as to the intent. In controversies between private parties the quo
animo with which a thing was done is sometimes important, not always; but
crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other words,
punishment is the sentence of wickedness, without which it can not be.
And neither in philosophical speculation nor in religious or mortal sentiment
would any people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal system, as
probably it is of every other, that the essence of an offense is the wrongful
intent, without which it can not exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the modern,
is distinct on this subject. It consequently has supplied to us such maxims
as Actus non facit reum nisi mens sit rea, "the act itself does not make man
guilty unless his intention were so;" Actus me incito factus non est meus
actus, "an act done by me against my will is not my act;" and others of the
like sort. In this, as just said, criminal jurisprudence differs from civil. So
also
Moral science and moral sentiment teach the same thing. "By reference to
the intention, we inculpate or exculpate others or ourselves without any
respect to the happiness or misery actually produced. Let the result of an
action be what it may, we hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold him innocent." The calm
judgment of mankind keeps this doctrine among its jewels. In times of
excitement, when vengeance takes the place of justice, every guard
around the innocent is cast down. But with the return of reason comes the
public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And
In the spontaneous judgment which springs from the nature given by God
to man, no one deems another to deserve punishment for what he did from
an upright mind, destitute of every form of evil. And whenever a person is
made to suffer a punishment which the community deems not his due, so
far from its placing an evil mark upon him, it elevates him to the seat of the
martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost
confidence that the plea, if its truth is credited, will be accepted as good.
Now these facts are only the voice of nature uttering one of her immutable
truths. It is, then, the doctrine of the law, superior to all other doctrines,
because first in nature from which the law itself proceeds, that no man is to
be punished as a criminal unless his intent is wrong. (Bishop's New
Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption of
the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law
excuses no man"), without which justice could not be administered in our
tribunals; and compelled also by the same doctrine of necessity, the courts
have recognized the power of the legislature to forbid, in a limited class of
cases, the doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have
always held that unless the intention of the lawmaker to make the
commission of certain acts criminal without regard to the intent of the doer
is clear and beyond question the statute will not be so construed (cases
cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance
of the law excuses no man has been said not to be a real departure from
the law's fundamental principle that crime exists only where the mind is at
fault, because "the evil purpose need not be to break the law, and if
suffices if it is simply to do the thing which the law in fact forbids." (Bishop's
New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise that
in strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of
fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's
Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from
no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and as
laid down by Baron Parke, "The guilt of the accused must depend on the
circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32
N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C.,
41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is
to say, the question as to whether he honestly, in good faith, and without
fault or negligence fell into the mistake is to be determined by the
circumstances as they appeared to him at the time when the mistake was
made, and the effect which the surrounding circumstances might
reasonably be expected to have on his mind, in forming the intent, criminal
or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing or, in terms more
nicely in accord with the principles on which the rule is founded, if without
fault or carelessness he does believe them he is legally guiltless of the
homicide; though he mistook the facts, and so the life of an innocent
person is unfortunately extinguished. In other words, and with reference to
the right of self-defense and the not quite harmonious authorities, it is the
doctrine of reason and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse, whenever a man
undertakes self-defense, he is justified in acting on the facts as they
appear to him. If, without fault or carelessness, he is misled concerning
them, and defends himself correctly according to what he thus supposes
the facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme measures.
(Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as
a footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed
by his friend under the mistaken belief that the attack is a real one, that the
pistol leveled at his head is loaded, and that his life and property are in
imminent danger at the hands of the aggressor. No one will doubt that if
the facts were such as the slayer believed them to be he would be
innocent of the commission of any crime and wholly exempt from criminal
liability, although if he knew the real state of the facts when he took the life
of his friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent mistake of
the facts overcomes the presumption of malice or criminal intent, and
(since malice or criminal intent is a necessary ingredient of the "act
punished by law" in cases of homicide or assassination) overcomes at the
same time the presumption established in article 1 of the code, that the
"act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person
slain had a felonious design against him, and under that supposition killed
him, although it should afterwards appear that there was no such design, it
will not be murder, but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable grounds of such
belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417,
418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward
him, with an outstretched arms and a pistol in his hand, and using violent
menaces against his life as he advances. Having approached near enough
in the same attitude, A, who has a club in his hand, strikes B over the head
before or at the instant the pistol is discharged; and of the wound B dies. It
turns out the pistol was loaded with powder only, and that the real design
of B was only to terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet in the pistol?
Those who hold such doctrine must require that a man so attacked must,
before he strikes the assailant, stop and ascertain how the pistol is loaded
a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not
the party killing, are to judge of the reasonable grounds of his
apprehension, no danger can be supposed to flow from this principle.
(Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain,
cited by Viada, a few of which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his hearth,
at night, in company only of his wife, without other light than reflected from
the fire, and that the man with his back to the door was attending to the
fire, there suddenly entered a person whom he did not see or know, who
struck him one or two blows, producing a contusion on the shoulder,
because of which he turned, seized the person and took from his the stick
with which he had undoubtedly been struck, and gave the unknown person
a blow, knocking him to the floor, and afterwards striking him another blow
on the head, leaving the unknown lying on the floor, and left the house. It
turned out the unknown person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The
accused, who confessed the facts, had always sustained pleasant relations
with his father-in-law, whom he visited during his sickness, demonstrating
great grief over the occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the circumstances
related in paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exists rational necessity for
the employment of the force used, and in accordance with articles 419 and
87 of the Penal Code condemned him to twenty months of imprisonment,
with accessory penalty and costs. Upon appeal by the accused, he was
acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven,
that the accused was surprised from behind, at night, in his house beside
his wife who was nursing her child, was attacked, struck, and beaten,
without being able to distinguish with which they might have executed their
criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed
demonstrated that they might endanger his existence, and possibly that of
his wife and child, more especially because his assailant was unknown, he
should have defended himself, and in doing so with the same stick with
which he was attacked, he did not exceed the limits of self-defense, nor did
he use means which were not rationally necessary, particularly because
the instrument with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the darkness of the
house and the consteration which naturally resulted from such strong
aggression, it was not given him to known or distinguish whether there was
one or more assailants, nor the arms which they might bear, not that which
they might accomplish, and considering that the lower court did not find
from the accepted facts that there existed rational necessity for the means
employed, and that it did not apply paragraph 4 of article 8 of the Penal
Code, it erred, etc." (Sentence of supreme court of Spain, February 28,
1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was
situated in a retired part of the city, upon arriving at a point where there
was no light, heard the voice of a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!" because of which, and almost
at the same money, he fired two shots from his pistol, distinguishing
immediately the voice of one of his friends (who had before simulated a
different voice) saying, "Oh! they have killed me," and hastening to his
assistance, finding the body lying upon the ground, he cried, "Miguel,
Miguel, speak, for God's sake, or I am ruined," realizing that he had been
the victim of a joke, and not receiving a reply, and observing that his friend
was a corpse, he retired from the place. Shall he be declared exempt in
toto from responsibility as the author of this homicide, as having acted in
just self-defense under the circumstances defined in paragraph 4, article 8,
Penal Code? The criminal branch of the Audiencia of Malaga did not so
find, but only found in favor of the accused two of the requisites of said
article, but not that of the reasonableness of the means employed to repel
the attack, and, therefore, condemned the accused to eight years and one
day of prison mayor, etc. The supreme court acquitted the accused on his
appeal from this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the person
calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the shooting
justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p.
136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is
awakened, at night, by a large stone thrown against his window at this,
he puts his head out of the window and inquires what is wanted, and is
answered "the delivery of all of his money, otherwise his house would be
burned" because of which, and observing in an alley adjacent to the mill
four individuals, one of whom addressed him with blasphemy, he fired his
pistol at one the men, who, on the next morning was found dead on the
same spot. Shall this man be declared exempt from criminal responsibility
as having acted in just self-defense with all of the requisites of law? The
criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a
majority of the requisites to exempt him from criminal responsibility, but not
that of reasonable necessity for the means, employed, and condemned the
accused to twelve months of prision correctional for the homicide
committed. Upon appeal, the supreme court acquitted the condemned,
finding that the accused, in firing at the malefactors, who attack his mill at
night in a remote spot by threatening robbery and incendiarism, was acting
in just self-defense of his person, property, and family. (Sentence of May
23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces
us that the defendant Chinaman struck the fatal blow alleged in the
information in the firm belief that the intruder who forced open the door of
his sleeping room was a thief, from whose assault he was in imminent
peril, both of his life and of his property and of the property committed to
his charge; that in view of all the circumstances, as they must have
presented themselves to the defendant at the time, he acted in good faith,
without malice, or criminal intent, in the belief that he was doing no more
than exercising his legitimate right of self-defense; that had the facts been
as he believed them to be he would have been wholly exempt from
criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling
into his mistake as to the facts, or in the means adopted by him to defend
himself from the imminent danger which he believe threatened his person
and his property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which he
is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court,
believes that, according to the merits of the case, the crime of homicide by
reckless negligence, defined and punishes in article 568 of the Penal
Code, was committed, inasmuch as the victim was wilfully
(voluntariomente) killed, and while the act was done without malice or
criminal intent it was, however, executed with real negligence, for the acts
committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the
person who assaulted him was a malefactor; the defendant therefore
incurred responsibility in attacking with a knife the person who was
accustomed to enter said room, without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the
undersigned the accused should be sentenced to the penalty of one year
and one month of prision correctional, to suffer the accessory penalties
provided in article 61, and to pay an indemnify of P1,000 to the heirs of the
deceased, with the costs of both instances, thereby reversing the judgment
appealed from.
[G.R. No. 130487. June 19, 2000]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO
ESTRADA, accused-appellant.
DECISION
PUNO, J.:
This is an automatic review of the death penalty imposed on accused-
appellant by the Regional Trial Court, Branch 44, Dagupan City in Criminal
Case No. 94-00860-D.[1] We nullify the proceedings in the court a quo and
remand the case for proper disposition.
In an Information dated December 29, 1994, accused-appellant Roberto
Estrada y Lopez was charged with the crime of murder for the killing of one
Rogelio P. Mararac, a security guard. The Information reads:
That on or about the 27th day of December 1994 in the City of Dagupan,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, ROBERTO ESTRADA Y LOPEZ, being then armed with a
butchers knife, with intent to kill one ROGELIO P. MARARAC with
treachery and committed in a holy place of worship, did then and there,
wilfully, unlawfully and criminally, attack, assault and use personal violence
upon the latter by stabbing him, hitting him on vital parts of his body with
the said weapon, thereby causing his death shortly thereafter due to
Cardiorespiratory Arrest, Massive Intrathoracic Hemorrhage, Stab Wound
as per Autopsy Report and Certificate of Death both issued by Dr. Tomas
G. Cornel, Assistant City Health Officer, this City, to the damage and
prejudice of the legal heirs of said deceased ROGELIO P. MARARAC in
the amount of not less than FIFTY THOUSAND PESOS (P50,000.00),
Philippine currency, and other consequential damages.
Contrary to Article 248 of the Revised Penal Code.
Dagupan City, Philippines, December 29, 1994.[2]
At the arraignment on January 6, 1995, accused-appellants counsel, the
Public Attorneys Office, filed an Urgent Motion to Suspend Arraignment
and to Commit Accused to Psychiatric Ward at Baguio General Hospital. It
was alleged that accused-appellant could not properly and intelligently
enter a plea because he was suffering from a mental defect; that before the
commission of the crime, he was confined at the psychiatric ward of the
Baguio General Hospital in Baguio City. He prayed for the suspension of
his arraignment and the issuance of an order confining him at the said
hospital.[3]
The motion was opposed by the City Prosecutor. The trial court, motu
proprio, propounded several questions on accused-appellant. Finding that
the questions were understood and answered by him intelligently, the court
denied the motion that same day.[4]
The arraignment proceeded and a plea of not guilty was entered by the
court on accused-appellants behalf.[5]
The prosecution presented four (4) witnesses, namely: (1) Dr. Tomas
Cornel, the Assistant Health Officer of Dagupan City who issued the death
certificate and conducted the autopsy on the victim; (2) Crisanto Santillan,
an eyewitness to the incident; (3) SPO1 Conrado Francisco, one of the
policemen who apprehended accused-appellant; and (4) Rosalinda
Sobremonte, the victims sister. The prosecution established the following
facts:
In the morning of December 27, 1994, at the St. Johns Cathedral,
Dagupan City, the sacrament of confirmation was being performed by the
Roman Catholic Bishop of Dagupan City on the children of Dagupan. The
cathedral was filled with more than a thousand people. At 11:00 A.M.,
nearing the close of the rites, the Bishop went down the altar to give his
final blessing to the children in the front rows. While the Bishop was giving
his blessing, a man from the crowd went up and walked towards the center
of the altar. He stopped beside the Bishops chair, turned around and, in full
view of the Catholic faithful, sat on the Bishops chair. The man was
accused-appellant. Crisanto Santillan, who was assisting the Bishop at the
rites, saw accused-appellant. Santillan approached accused-appellant and
requested him to vacate the Bishops chair. Gripping the chairs armrest,
accused-appellant replied in Pangasinese: No matter what will happen, I
will not move out! Hearing this, Santillan moved away.[6]
Some of the churchgoers summoned Rogelio Mararac, the security guard
at the cathedral. Mararac went near accused-appellant and told him to
vacate the Bishops chair. Accused-appellant stared intensely at the
guard. Mararac grabbed his nightstick and used it to tap accused-
appellants hand on the armrest. Appellant did not budge. Again, Mararac
tapped the latters hand. Still no reaction. Mararac was about to strike again
when suddenly accused-appellant drew a knife from his back, lunged at
Mararac and stabbed him, hitting him below his left throat. Mararac
fell. Accused-appellant went over the victim and tried to stab him again but
Mararac parried his thrust. Accused-appellant looked up and around
him. He got up, went to the microphone and shouted: Anggapuy nayan dia!
(No one can beat me here!). He returned to the Bishops chair and sat on it
again. Mararac, wounded and bleeding, slowly dragged himself down the
altar.[7]
Meanwhile, SPO1 Conrado Francisco, who was directing traffic outside,
received a report of a commotion inside the cathedral. Rushing to the
cathedral, SPO1 Francisco saw a man, accused-appellant, with red stains
on his shirt and a knife in one hand sitting on a chair at the center of the
altar. He ran to accused-appellant and advised him to drop the knife.
Accused-appellant obeyed. He dropped the knife and raised his
hands. Thereupon, Chief Inspector Wendy Rosario, Deputy Police Chief,
Dagupan City, who was attending the confirmation rites at the Cathedral,
went near accused-appellant to pick up the knife. Suddenly, accused-
appellant embraced Chief Inspector Rosario and the two wrestled with
each other. Chief Inspector Rosario was able to subdue accused-
appellant. The police came and when they frisked appellant, they found a
leather scabbard tucked around his waist.[8] He was brought to the police
station and placed in jail.
In the meantime, Mararac, the security guard, was brought to the hospital
where he expired a few minutes upon arrival. He died of cardio-respiratory
arrest, massive, intra-thoracic hemorrhage, stab wound.[9] He was found to
have sustained two (2) stab wounds: one just below the left throat and the
other on the left arm. The autopsy reported the following findings:
EXTERNAL FINDINGS
1. Stab wound, along the parasternal line, level of the 2nd intercostal
space, left, 1 x 1 penetrating. The edge of one side of the wound is sharp
and pointed.
2. Stab wound, antero-lateral aspect, distal 3rd, arm, left, x x . The edge of
one side of the wound is sharp and pointed.
INTERNAL FINDINGS
Massive intrathoracic, left, hemorrhage with perforation of the upper and
lower lobe of the left lung. The left pulmonary blood vessel was severely
cut.[10]
After the prosecution rested its case, accused-appellant, with leave of
court, filed a Demurrer to Evidence. He claimed that the prosecution failed
to prove the crime of murder because there was no evidence of the
qualifying circumstance of treachery; that there was unlawful aggression by
the victim when he tapped accused-appellants hand with his nightstick;
and that accused-appellant did not have sufficient ability to calculate his
defensive acts because he was of unsound mind.[11]
The Demurrer to Evidence was opposed by the public prosecutor. He
alleged that the accused pretended to be weak, tame and of unsound
mind; that after he made the first stab, he furiously continued stabbing and
slashing the victim to finish him off undeterred by the fact that he was in a
holy place where a religious ceremony was being conducted; and the plea
of unsound mind had already been ruled upon by the trial court in its order
of January 6, 1995.[12]
On February 21, 1995, a letter was sent by Inspector Wilfredo F. Valdez,
Jail Warden of Dagupan City to the trial court. Inspector Valdez requested
the court to allow accused-appellant, who was confined at the city jail, to
be treated at the Baguio General Hospital to determine whether he should
remain in jail or be transferred to some other institution. The other
prisoners were allegedly not comfortable with appellant because he had
been exhibiting unusual behavior. He tried to climb up the jail roof so he
could escape and see his family.[13]
As ordered by the trial court, the public prosecutor filed a Comment to the
jail wardens letter. He reiterated that the mental condition of accused-
appellant to stand trial had already been determined; unless a competent
government agency certifies otherwise, the trial should proceed; and the
city jail warden was not the proper person to determine whether accused-
appellant was mentally ill or not.[14]
In an order dated August 21, 1995, the trial court denied the Demurrer to
Evidence.[15] Accused-appellant moved for reconsideration.
While the motion for reconsideration was pending, on February 26, 1996,
counsel for accused-appellant filed a Motion to Confine Accused for
Physical, Mental and Psychiatric Examination. Appellants counsel informed
the court that accused-appellant had been exhibiting abnormal behavior for
the past weeks; he would shout at the top of his voice and cause panic
among the jail inmates and personnel; that appellant had not been eating
and sleeping; that his co-inmates had been complaining of not getting
enough sleep for fear of being attacked by him while asleep; that once,
while they were sleeping, appellant took out all his personal effects and
waste matter and burned them inside the cell which again caused panic
among the inmates. Appellants counsel prayed that his client be confined
at the National Center for Mental Health in Manila or at the Baguio General
Hospital.[16] Attached to the motion were two (2) letters.One, dated
February 19, 1996, was from Inspector Pedrito Llopis, Jail Warden,
Dagupan City, addressed to the trial court judge informing him of
appellants irrational behavior and seeking the issuance of a court order for
the immediate psychiatric and mental examination of accused-appellant.
[17]
The second letter, dated February 21, 1996, was addressed to Inspector
Llopis from the Bukang Liwayway Association, an association of inmates in
the Dagupan City Jail. The letter, signed by the president, secretary and
adviser of said association, informed the jail warden of appellants unusual
behavior and requested that immediate action be taken against him to
avoid future violent incidents in the jail.[18]
On September 18, 1996, the trial court denied reconsideration of the order
denying the Demurrer to Evidence. The court ordered accused-appellant to
present his evidence on October 15, 1996.[19]
Accused-appellant did not take the witness stand. Instead, his counsel
presented the testimony of Dr. Maria Soledad Gawidan,[20] a resident
physician in the Department of Psychiatry at the Baguio General Hospital,
and accused-appellants medical and clinical records at the said hospital.
[21]
Dr. Gawidan testified that appellant had been confined at the BGH from
February 18, 1993 to February 22, 1993 and that he suffered from
Schizophrenic Psychosis, Paranoid Typeschizophrenia, paranoid, chronic,
paranoid type;[22] and after four (4) days of confinement, he was discharged
in improved physical and mental condition.[23] The medical and clinical
records consisted of the following: (1) letter of Dr. Alfredo Sy, Municipal
Health Officer, Calasiao, Pangasinan to Dr. Jesus del Prado, Director, BGH
referring accused-appellant for admission and treatment after a relapse of
his violent behavior;[24] (2) the clinical cover sheet of appellant at the BGH;
[25]
(3) the consent slip of appellants wife voluntarily entrusting appellant to
the BGH;[26] (4) the Patients Record;[27] (5) the Consent for Discharge
signed by appellants wife;[28] (6) the Summary and Discharges of appellant;
[29]
(7) appellants clinical case history;[30] (8) the admitting notes;[31] (9)
Physicians Order Form;[32] (10) the Treatment Form/ medication sheet;
[33]
and (11) Nurses Notes.[34]
The trial court rendered a decision on June 23, 1997. It upheld the
prosecution evidence and found accused-appellant guilty of the crime
charged and thereby sentenced him to death, viz:
WHEREFORE, the court finds accused Roberto Estrada y Lopez guilty
beyond reasonable doubt of the crime of Murder and in view of the
presence of the aggravating circumstance of cruelty which is not offset by
any mitigating circumstance, the accused is sentenced to suffer the Death
Penalty and to indemnify the heirs of the deceased in the amount of
P50,000.00.
The accused is ordered to pay the sum of P18,870.00 representing actual
expenses and P100,000.00 as moral damages.
SO ORDERED.[35]
In this appeal, accused-appellant assigns the following errors:
I happened.
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT
GUILTY OF THE CRIME CHARGED, DESPITE CLEAR AND
CONVINCING EVIDENCE ON RECORD, SUPPORTING HIS PLEA OF
INSANITY.
II
THE LOWER COURT LIKEWISE ERRED IN HOLDING THAT THE
STABBING TO DEATH OF ROGELIO MARARAC WAS ATTENDED WITH
TREACHERY AND AGGRAVATED BY CRUELTY, GRANTING
ARGUENDO THAT ACCUSED-APPELLANTS PLEA OF INSANITY
CANNOT BE CONSIDERED AN EXEMPTING CIRCUMSTANCE.[36]
The basic principle in our criminal law is that a person is criminally liable for
a felony committed by him.[37] Under the classical theory on which our
penal code is mainly based, the basis of criminal liability is human free will.
[38]
Man is essentially a moral creature with an absolutely free will to choose
between good and evil.[39] When he commits a felonious or criminal act
(delito doloso), the act is presumed to have been done voluntarily,[40] i.e.,
with freedom, intelligence and intent.[41] Man, therefore, should be adjudged
or held accountable for wrongful acts so long as free will appears
unimpaired.[42]
In the absence of evidence to the contrary, the law presumes that every
person is of sound mind[43] and that all acts are voluntary.[44] The moral and
legal presumption under our law is that freedom and intelligence constitute
the normal condition of a person.[45] This presumption, however, may be
overthrown by other factors; and one of these is insanity which exempts
the actor from criminal liability.[46]
The Revised Penal Code in Article 12 (1) provides:
ART. 12. Circumstances which exempt from criminal liability.The following
are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a
lucid interval.
When the imbecile or an insane person has committed an act which the
law defines as a felony (delito), the court shall order his confinement in one
of the hospitals or asylums established for persons thus afflicted, which he
shall not be permitted to leave without first obtaining the permission of the
same court.
An insane person is exempt from criminal liability unless he has acted
during a lucid interval. If the court therefore finds the accused insane when
the alleged crime was committed, he shall be acquitted but the court shall
order his confinement in a hospital or asylum for treatment until he may be
released without danger. An acquittal of the accused does not result in his
outright release, but rather in a verdict which is followed by commitment of
the accused to a mental institution.[47]
In the eyes of the law, insanity exists when there is a complete deprivation
of intelligence in committing the act. Mere abnormality of the mental
faculties will not exclude imputability.[48] The accused must be so insane as
to be incapable of entertaining a criminal intent.[49] He must be deprived of
reason and act without the least discernment because there is a complete
absence of the power to discern or a total deprivation of freedom of the
will.[50]
Since the presumption is always in favor of sanity, he who invokes insanity
as an exempting circumstance must prove it by clear and positive
evidence.[51] And the evidence on this point must refer to the time
preceding the act under prosecution or to the very moment of its execution.
[52]
To ascertain a persons mental condition at the time of the act, it is
permissible to receive evidence of the condition of his mind within a
reasonable period both before and after that time.[53]Direct testimony is not
required.[54] Neither are specific acts of derangement essential to establish
insanity as a defense.[55] Circumstantial evidence, if clear and convincing,
suffices; for the unfathomable mind can only be known by overt acts. A
persons thoughts, motives, and emotions may be evaluated only by
outward acts to determine whether these conform to the practice of people
of sound mind.[56]
In the case at bar, there is no direct proof that accused-appellant was
afflicted with insanity at the time he killed Mararac. The absence of direct
proof, nevertheless, does not entirely discount the probability that appellant
was not of sound mind at that time. From the affidavit of Crisanto
Santillan[57] attached to the Information, there are certain circumstances
that should have placed the trial court on notice that appellant may not
have been in full possession of his mental faculties when he attacked
Mararac. It was highly unusual for a sane person to go up to the altar and
sit on the Bishops chair while the Bishop was administering the Holy
Sacrament of Confirmation to children in a jampacked cathedral. It goes
against normal and ordinary behavior for appellant, without sufficient
provocation from the security guard, to stab the latter at the altar, during
sacramental rites and in front of all the Catholic faithful to witness.
Appellant did not flee, or at least attempt to flee after the stabbing. He
nonchalantly approached the microphone and, over the public address
system, uttered words to the faithful which no rational person would have
made. He then returned to the Bishops chair and sat there as if nothing
Accused-appellants history of mental illness was brought to the courts
attention on the day of the arraignment. Counsel for accused-appellant
moved for suspension of the arraignment on the ground that his client
could not properly and intelligently enter a plea due to his mental condition.
The Motion for Suspension is authorized under Section 12, Rule 116 of the
1985 Rules on Criminal Procedure which provides:
Sec. 12. Suspension of arraignment.The arraignment shall be suspended,
if at the time thereof:
(a) The accused appears to be suffering from an unsound mental condition
which effectively renders him unable to fully understand the charge against
him and to plead intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for such purpose.
(b) x x x.
The arraignment of an accused shall be suspended if at the time thereof he
appears to be suffering from an unsound mental condition of such nature
as to render him unable to fully understand the charge against him and to
plead intelligently thereto. Under these circumstances, the court must
suspend the proceedings and order the mental examination of the
accused, and if confinement be necessary for examination, order such
confinement and examination. If the accused is not in full possession of his
mental faculties at the time he is informed at the arraignment of the nature
and cause of the accusation against him, the process is itself a felo de
se, for he can neither comprehend the full import of the charge nor can he
give an intelligent plea thereto.[58]
The question of suspending the arraignment lies within the discretion of the
trial court.[59]And the test to determine whether the proceedings will be
suspended depends on the question of whether the accused, even with the
assistance of counsel, would have a fair trial. This rule was laid down as
early as 1917, thus:
In passing on the question of the propriety of suspending the proceedings
against an accused person on the ground of present insanity, the judges
should bear in mind that not every aberration of the mind or exhibition of
mental deficiency is sufficient to justify such suspension. The test is to be
found in the question whether the accused would have a fair trial, with the
assistance which the law secures or gives; and it is obvious that under a
system of procedure like ours where every accused person has legal
counsel, it is not necessary to be so particular as it used to be in England
where the accused had no advocate but himself.[60] In the American
jurisdiction, the issue of the accuseds present insanity or insanity at the
time of the court proceedings is separate and distinct from his criminal
responsibility at the time of commission of the act. The defense of insanity
in a criminal trial concerns the defendants mental condition at the time of
the crimes commission. Present insanity is commonly referred to as
competency to stand trial[61] and relates to the appropriateness of
conducting the criminal proceeding in light of the defendants present
inability to participate meaningfully and effectively.[62] In competency cases,
the accused may have been sane or insane during the commission of the
offense which relates to a determination of his guilt. However, if he is found
incompetent to stand trial, the trial is simply postponed until such time as
he may be found competent. Incompetency to stand trial is not a defense;
it merely postpones the trial.[63]
In determining a defendants competency to stand trial, the test is whether
he has the capacity to comprehend his position, understand the nature and
object of the proceedings against him, to conduct his defense in a rational
manner, and to cooperate, communicate with, and assist his counsel to the
end that any available defense may be interposed.[64] This test is
prescribed by state law but it exists generally as a statutory recognition of
the rule at common law.[65] Thus:
[I]t is not enough for the x x x judge to find that the defendant [is] oriented
to time and place, and [has] some recollection of events, but that the test
must be whether he has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understandingand whether he has a
rational as well as factual understanding of the proceedings against him.[66]
There are two distinct matters to be determined under this test: (1) whether
the defendant is sufficiently coherent to provide his counsel with
information necessary or relevant to constructing a defense; and (2)
whether he is able to comprehend the significance of the trial and his
relation to it.[67] The first requisite is the relation between the defendant and
his counsel such that the defendant must be able to confer coherently with
his counsel. The second is the relation of the defendant vis-a-vis the court
proceedings, i.e., that he must have a rational as well as a factual
understanding of the proceedings.[68]
The rule barring trial or sentence of an insane person is for the protection
of the accused, rather than of the public.[69] It has been held that it is
inhuman to require an accused disabled by act of God to make a just
defense for his life or liberty.[70] To put a legally incompetent person on trial
or to convict and sentence him is a violation of the constitutional rights to a
fair trial[71]and due process of law;[72] and this has several reasons
underlying it.[73] For one, the accuracy of the proceedings may not be
assured, as an incompetent defendant who cannot comprehend the
proceedings may not appreciate what information is relevant to the proof of
his innocence. Moreover, he is not in a position to exercise many of the
rights afforded a defendant in a criminal case, e.g., the right to effectively
consult with counsel, the right to testify in his own behalf, and the right to
confront opposing witnesses, which rights are safeguards for the accuracy
of the trial result. Second, the fairness of the proceedings may be
questioned, as there are certain basic decisions in the course of a criminal
proceeding which a defendant is expected to make for himself, and one of
these is his plea. Third, the dignity of the proceedings may be disrupted, for
an incompetent defendant is likely to conduct himself in the courtroom in a
manner which may destroy the decorum of the court. Even if the defendant
remains passive, his lack of comprehension fundamentally impairs the
functioning of the trial process. A criminal proceeding is essentially an
adversarial proceeding. If the defendant is not a conscious and intelligent
participant, the adjudication loses its character as a reasoned interaction
between an individual and his community and becomes an invective
against an insensible object. Fourth, it is important that the defendant
knows why he is being punished, a comprehension which is greatly
dependent upon his understanding of what occurs at trial. An incompetent
defendant may not realize the moral reprehensibility of his conduct. The
societal goal of institutionalized retribution may be frustrated when the
force of the state is brought to bear against one who cannot comprehend
its significance.[74]
The determination of whether a sanity investigation or hearing should be
ordered rests generally in the discretion of the trial court.[75] Mere allegation
of insanity is insufficient. There must be evidence or circumstances that
raise a reasonable doubt[76] or a bona fide doubt[77] as to defendants
competence to stand trial. Among the factors a judge may consider is
evidence of the defendants irrational behavior, history of mental illness or
behavioral abnormalities, previous confinement for mental disturbance,
demeanor of the defendant, and psychiatric or even lay testimony bearing
on the issue of competency in a particular case.[78]
In the case at bar, when accused-appellant moved for suspension of the
arraignment on the ground of accuseds mental condition, the trial court
denied the motion after finding that the questions propounded on appellant
were intelligently answered by him. The court declared::
xxx
It should be noted that when this case was called, the Presiding Judge
asked questions on the accused, and he (accused) answered intelligently.
As a matter of fact, when asked where he was born, he answered, in
Tayug.
The accused could answer intelligently. He could understand the questions
asked of him.
WHEREFORE, for lack of merit, the Urgent Motion to Suspend
Arraignment and to Commit Accused to Psychiatric Ward at Baguio
General Hospital, is hereby DENIED.
SO ORDERED.[79]
The fact that accused-appellant was able to answer the questions asked
by the trial court is not conclusive evidence that he was competent enough
to stand trial and assist in his defense. Section 12, Rule 116 speaks of an
unsound mental condition that effectively renders [the accused] unable to
fully understand the charge against him and to plead intelligently thereto. It
is not clear whether accused-appellant was of such sound mind as to fully
understand the charge against him. It is also not certain whether his plea
was made intelligently. The plea of not guilty was not made by accused-
appellant but by the trial court because of his refusal to plead.[80]
The trial court took it solely upon itself to determine the sanity of accused-
appellant. The trial judge is not a psychiatrist or psychologist or some other
expert equipped with the specialized knowledge of determining the state of
a persons mental health. To determine the accused-appellants competency
to stand trial, the court, in the instant case, should have at least ordered
the examination of accused-appellant, especially in the light of the latters
history of mental illness.
If the medical history was not enough to create a reasonable doubt in the
judges mind of accused-appellants competency to stand trial, subsequent
events should have done so. One month after the prosecution rested its
case, the Jail Warden of Dagupan City wrote the trial judge informing him
of accused-appellants unusual behavior and requesting that he be
examined at the hospital to determine whether he should remain in jail or
be placed in some other institution. The trial judge ignored this letter. One
year later, accused-appellants counsel filed a Motion to Confine Accused
for Physical, Mental and Psychiatric Examination. Attached to this motion
was a second letter by the new Jail Warden of Dagupan City accompanied
by a letter-complaint of the members of the Bukang Liwayway Association
of the city jail. Despite the two (2) attached letters,[81] the judge ignored the
Motion to Confine Accused for Physical, Mental and Psychiatric
Examination. The records are barren of any order disposing of the said
motion. The trial court instead ordered accused-appellant to present his
evidence.[82]
Dr. Gawidan testified that the illness of accused-appellant, i.e.,
schizophrenia, paranoid type, is a lifetime illness and that this requires
maintenance medication to avoid relapses.[83] After accused-appellant was
discharged on February 22, 1993, he never returned to the hospital, not
even for a check-up.[84]
Accused-appellant did not take the witness stand. His counsel manifested
that accused-appellant was waiving the right to testify in his own behalf
because he was suffering from mental illness.[85] This manifestation was
made in open court more than two (2) years after the crime, and still, the
claim of mental illness was ignored by the trial court. And despite all the
overwhelming indications of accused-appellants state of mind, the judge
persisted in his personal assessment and never even considered
subjecting accused-appellant to a medical examination. To top it all, the
judge found appellant guilty and sentenced him to death!
Section 12, Rule 116 of the 1985 Rules on Criminal Procedure speaks of a
mental examination.[86] The human mind is an entity, and understanding it
is not purely an intellectual process but depends to a large degree upon
emotional and psychological appreciation.[87] Thus, an intelligent
determination of an accuseds capacity for rational understanding ought to
rest on a deeper and more comprehensive diagnosis of his mental
condition than laymen can make through observation of his overt behavior.
Once a medical or psychiatric diagnosis is made, then can the legal
question of incompetency be determined by the trial court. By this time, the
accuseds abilities may be measured against the specific demands a trial
will make upon him.[88]
If the mental examination on accused-appellant had been promptly and
properly made, it may have served a dual purpose[89] by determining both
his competency to stand trial and his sanity at the time of the offense. In
some Philippine cases, the medical and clinical findings of insanity made
immediately after the commission of the crime served as one of the bases
for the acquittal of the accused.[90] The crime in the instant case was
committed way back in December 1994, almost six (6) years ago. At this
late hour, a medical finding alone may make it impossible for us to evaluate
appellants mental condition at the time of the crimes commission for him to
avail of the exempting circumstance of insanity.[91] Nonetheless, under the
present circumstances, accused-appellants competence to stand trial must
be properly ascertained to enable him to participate in his trial
meaningfully.
By depriving appellant of a mental examination, the trial court effectively
deprived appellant of a fair trial. The trial courts negligence was a violation
of the basic requirements of due process; and for this reason, the
proceedings before the said court must be nullified. In People v. Serafica,
[92]
we ordered that the joint decision of the trial court be vacated and the
cases remanded to the court a quo for proper proceeding. The accused,
who was charged with two (2) counts of murder and one (1) count of
frustrated murder, entered a plea of guilty to all three charges and was
sentenced to death. We found that the accuseds plea was not an
unconditional admission of guilt because he was not in full possession of
his mental faculties when he killed the victim; and thereby ordered that he
be subjected to the necessary medical examination to determine his
degree of insanity at the time of commission of the crime.[93]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 44,
Dagupan City in Criminal Case No. 94-00860-D convicting accused-
appellant Roberto Estrada and sentencing him to death is vacated and the
case is remanded to the court a quo for the conduct of a proper mental
examination on accused-appellant, a determination of his competency to
stand trial, and for further proceedings.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Vitug, J., on official leave.
[G.R. No. 125672. September 27, 1996]
JESUSA CRUZ, petitioner, vs. CORRECTIONAL INSTITUTION FOR
WOMEN IN MANDALUYONG, respondent.
RESOLUTION
PANGANIBAN, J.:
After having served five and a half years of her life sentence, may
petitioner -- who was convicted of selling 5.5 grams of prohibited drugs,
namely, dried marijuana leaves -- be now entitled to the beneficent penalty
provisions of R.A. 7659 and be now released from imprisonment?
The Facts
Petitioner Jesusa Cruz, a.k.a. Jesusa Mediavilla, is at present confined at
the Correctional Institution for Women in Mandaluyong City serving the
penalty of life imprisonment imposed upon her as a consequence of her
conviction on March 31, 1992 for violation of Section 4, Article II of R.A.
6425 otherwise known as the Dangerous Drugs Act of 1972. Her appeal
from the judgment of conviction rendered by
the Regional Trial Court of Iloilo City, Branch 33, was dismissed by this
Court on March 1, 1993 in G.R. No. 106389, People vs. Jesusa
Cruz. Hence, her life sentence has become final and executory.
On August 6, 1996, the present petition for habeas corpus was filed by Atty.
Mylene T. Marcia-Creencia (of the law firm of Fortun and Narvasa) who
was appointed by this Court on September 13, 1995 as counsel de oficio to
assist the accused in the preparation of the said pleading. Petitioner
alleges that, as of the date of filing of her herein petition, she has already
served five and a half years of her life sentence (February 2, 1991 to
August 5, 1996). She argues that the penalty of life imprisonment imposed
by the trial court is excessive considering that the marijuana allegedly
taken from her was only 5.5 grams or less than 750 grams. The Solicitor
General, in his Comment filed with this Court on August 30, 1996,
interposed no objection to a favorable application of Section 20, Article IV
of R.A. No. 6425, as amended by R.A. No. 7659.
The Courts Ruling
The petition is meritorious.
R.A. 7659, which took effect on December 13, 1993, partly modified the
penalties prescribed by R.A. 6425; that is, inter alia, where the quantity of
prohibited drugs involved is less than 750 grams, the penalty is reduced to
a range of prision correccional to reclusion perpetua. (Ordoez vs. Vinarao,
G.R. No. 121424, March 28, 1996). In People vs. Simon (234 SCRA 555,
July 29, 1994) and People vs. De Lara (236 SCRA 291, September 5,
1994), this Court ruled that where the marijuana is less than 250 grams,
the penalty to be imposed shall be prision correccional. Moreover, applying
the Indeterminate Sentence Law, the penalty imposable is further reduced
to any period within arresto mayor, as minimum term, to the medium period
of prision correccional as the maximum term, there being no aggravating or
mitigating circumstances (Garcia, et al. vs. Court of Appeals, et al., G.R.
No. 110983, March 8, 1996).
All told, the petitioner should now be deemed to have served the maximum
period imposable for the crime for which she was convicted, i.e., selling 5.5
grams of dried marijuana leaves.Although her penalty of life imprisonment
had already become final, the beneficial effects of the amendment provided
under R.A. 7659 should be extended to petitioner.
WHEREFORE, the petition is GRANTED. The petitioner is
hereby ORDERED RELEASED IMMEDIATELY, unless she is being
detained on some other legal charge. No costs.
SO ORDERED.
Davide, Jr., Melo, and Francisco, JJ., concur.
Narvasa, C.J., (Chairman), took no part. Related to Counsel of a party.
G.R. Nos. 115008-09 July 24, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANIEL QUIJADA Y CIRCULADO, accused-appellant.
DAVIDE, JR., J.:p
Accused-appellant Daniel Quijada appeals from the decision of 30
September 1993 of Branch 1 of the Regional Trial Court (RTC) of Bohol
convicting him of the two offenses separately charged in two
informations, viz., murder under Article 248 of the Revised Penal Code and
illegal possession of firearm in its aggravated from under P.D. No. 1866,
and imposing upon him the penalty of reclusion perpetua for the first crime
and an indeterminate penalty ranging from seventeen years, four months,
and one day, as minimum, to twenty years and one day, as maximum, for
the second crime. 1
The appeal was originally assigned to the Third Division of the Court but
was later referred to the Court en banc in view of the problematical issue of
whether to sustain the trial court's judgment in conformity with the doctrine
laid down in People vs. Tac-an, 2 People vs. Tiozon, 3 People
vs. Caling, 4 People vs. Jumamoy, 5 People vs. Deunida, 6People
vs. Tiongco, 7 People vs. Fernandez, 8 and People vs. Somooc 9 or to
modify the judgment and convict the appellant only of illegal possession of
firearm in its aggravated form pursuant to People vs. Barros, 10 which this
Court (Second Division) decided on 27 June 1995.
The informations read as follows:
CRIMINAL CASE NO. 8178
That on or about the 30th day of December, 1992, in the municipality of
Dauis, province of Bohol, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, with intent to kill and without
any justifiable motive, with treachery and abuse of superior strength, the
accused being then armed with a .38 cal. revolver, while the victim was
unarmed, suddenly attacked the victim without giving the latter the
opportunity to defend himself, and with evident premeditation, the accused
having harbored a grudge against the victim a week prior to the incident of
murder, did then and there willfully, unlawfully and feloniously attack,
assault and shoot Diosdado Iroy y Nesnea with the use of the said firearm,
hitting the latter on his head and causing serious injuries which resulted to
his death; to the damage and prejudice of the heirs of the deceased.
Acts committed contrary to the provision of Art. 248 of the Revised Penal
Code, with aggravating circumstance of nighttime being purposely sought
for or taken advantage of by the accused to facilitate the commission of the
crime. 11
CRIMINAL CASE NO. 8179
That on or about the 30th day of December, 1992, in the municipality of
Dauis, province of Bohol, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously keep, carry and have in his possession, custody
and control a firearm (hand gun) with ammunition, without first obtaining
the necessary permit or license to possess the said firearm from
competent authorities which firearm was carried by the said accused
outside of his residence and was used by him in committing the crime of
Murder with Diosdado Iroy y Nesnea as the victim; to the damage and
prejudice of the Republic of the Philippines.
Acts committed contrary to the provisions of PD No. 1866. 12
Having arisen from the same incident, the cases were consolidated, and
joint hearings were had. The witnesses presented by the prosecution were
SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO
Gondalino Inte, Dr. Gregg Julius Sodusta, Rosita Iroy, and Teodula
Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin
Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself.
The evidence for the prosecution is summarized by the Office of the
Solicitor General in the Brief for the Appellee as follows:
On 25 December 1992, a benefit dance was held at the Basketball Court of
Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight occurred
between Diosdado Iroy and appellant Daniel Quijada as the latter was
constantly annoying and pestering the former's sister Rosita Iroy (TSN,
Crim. Cases 8178 & 1879, June 8, 1993, pp. 32-35; August 5, 1993, pp.
14-15).
In the evening of 30 December 1992, another benefit dance/disco was held
in the same place. This benefit dance was attended by Rosita Iroy, Ariel
Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy.
While Rosita Iroy and others were enjoying themselves inside the dancing
area, Diosdado Iroy, Eugene Nesnea and Largo Iroy, who were then sitting
at the plaza (the area where they positioned themselves was duly lighted
and was approximately four mete's from the dancing hall), decided to just
watch the activities in the dance hall directly from the plaza.
After dancing, Rosita Iroy decided to leave and went outside the gate of
the dance area. Subsequently, or around 11:30 of the same night, while
facing the direction of Diosdado Iroy, Rosita Iroy saw appellant
surreptitiously approach her brother Diosdado Iroy from behind. Suddenly,
appellant fired his revolver at Diosdado Iroy, hitting the latter at the back
portion of the head. This caused Rosita Iroy to spontaneously shout that
appellant shot her brother; while appellant, after shooting Diosdado Iroy,
ran towards the cornfield.
Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo
Iroy to the hospital but the injury sustained was fatal. In the meantime,
Rosita Iroy went home and relayed to her parents the unfortunate incident
(TSN, Crim. Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of
the preceding paragraphs).
At around midnight, the incident was reported to then Acting chief of Police
Felipe Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula
Matalinis. The police officer made entries in the police blotter regarding the
shooting and correspondingly, ordered his men to pick up the appellant.
But they were unable to locate appellant on that occasion (TSN, Crim Case
Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
In the afternoon of 31 December 1992, appellant, together with his father
Teogenes Quijada went to the police station at Dauis, Bohol. There and
then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as the
person who shot Diosdado Iroy. These facts were entered in the police
blotter as Entry No. 1151 (TSN, Crim Case Nos. 8178 & 8179, ibid. p. 14,
June 14, 1993, pp. 4-6). 13
The slug was embedded at the midbrain. 14 Diosdado Iroy died of
Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to
massive intracranial hemorrhage, secondary to gunshot wound, 1 cm. left
occipital areas, transecting cerebellum up to midbrain. 15
The firearm used by the appellant in shooting Diosdado Iroy was not
licensed. Per certifications issued on 26 April 1993, the appellant was not a
duly licensed firearm holder as verified from a consolidated list of licensed
firearm holders in the province 16 and was not authorized to carry a firearm
outside his residence. 17
The appellant interposed the defense of alibi, which the trial court rejected
because he was positively identified by prosecution witness Rosita Iroy. It
summarized his testimony in this wise:
Daniel Quijada y Circulado, the accused in the instant cases, declared that
in the afternoon of December 30, 1992 he was in their house. At 6:00
o'clock in the afternoon he went to Tagbilaran City together with Julius
Bonao in a tricycle No. 250 to solicit passengers. They transported
passengers until 10:30 o'clock in the evening. They then proceeded to the
Tagbilaran wharf waiting for the passenger boat Trans Asia Taiwan. Before
the arrival of Trans Asia Taiwan they had a talk with Saturnino Maglopay.
They were able to pick up two passengers for Graham Avenue near La
Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of
MV Cebu City that docked at 12:10 past midnight. They had a talk with
Saturnino Maglopay who was waiting for his auntie scheduled to arrive
abroad MV Cebu City. They were not able to pick up passengers which, as
a consequence, they went home. They had on their way home passengers
for the Agors Public Market. They arrived at the house of Julian Bonao at
Bil-isan, Pangalao, Bohol at 3:00 o'clock in the morning of December 31,
1992 where he passed the night. He went home to Mariveles, Dauis, Bohol
at 9:00 o'clock in the morning. 18
The trial court gave full faith and credit to the version of the prosecution
and found the appellant guilty beyond reasonable doubt of the crimes
charged and sentenced him accordingly. It appreciated the presence of the
qualifying circumstance of treachery considering that the appellant shot the
victim at the back of the head while the latter was watching the dance. The
dispositive portion of the decision dated 30 September 1993 reads as
follows:
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the
accused Daniel Quijada guilty of the crime of murder punished under
Article 248 of the Revised Penal Code and hereby sentences him to suffer
an imprisonment of Reclusion Perpetua, with the accessories of the law
and to pay the cost.
In Criminal Case No. 8179, the Court finds the accused Daniel Quijada
guilty of the crime of Qualified Illegal Possession of Firearm and
Ammunition punished under Sec. 1 of RA No. 1866 as amended, and
hereby sentences him to suffer an indeterminate sentence from Seventeen
(17) years Four (4) months and One (1) day, as minimum, to Twenty (20)
years and One (1) day, as maximum, with the accessories of the law and to
pay the cost.
The slug or bullet which was extracted from the brain of the back portion of
the head of the victim Diosdado Iroy is hereby ordered forfeited in favor of
the government.
It appearing that the accused Daniel Quijada has undergone preventive
imprisonment he is entitled to the full time he has undergone preventive
imprisonment to be deducted from the term of sentence if he has executed
a waiver otherwise he will only be entitled to 4/5 of the time he has
undergone preventive imprisonment to be deducted from his term of
sentence if he has not executed a waiver. 19
On 29 October 1993, after discovering that it had inadvertently omitted in
the decision an award of civil indemnity and other damages in Criminal
Case No. 8178, the trial court issued an order directing the appellant to pay
the parents of the victim the amount of P50,000.00 as indemnity for the
death of their son and P10,000.00 for funeral expenses. 20 The order was
to form an integral part of the decision.
The decision was promulgated on 29 October 1993. 21
The appellant forthwith interposed the present appeal, and in his Brief, he
contends that the trial court erred
I Q Was it an electric light?
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE
TO THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY
AND FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE
WITNESSES EDWIN NISTAL AND ALFRED ARANSADO, AND IN
DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-
APPELLANT PARTICULARLY THE RELATIVE POSITIONS OF
DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED
ARANZADO.
III
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES
ROSITA IROY AND SPO4 FELIPE NIGPARANON HAD MOTIVES IN
FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT. 22
The appellant then submits that the issue in this case boils down to the
identity of the killer of Diosdado Iroy. To support his stand that the killer was
not identified, he attacks the credibility of prosecution witnesses Rosita Iroy
and SPO4 Felipe Nigparanon. He claims that the former had a motive "to
put him in a bad light" and calls our attention to her direct testimony that
her brother Diosdado, the victim, boxed him on the night of 25 December
1992 because he allegedly "bothered her." He further asserts that Rosita
could not have seen the person who shot Diosdado considering their
respective positions, particularly Rosita who, according to defense
witnesses Nistal and Aranzado, was still inside the dancing area and ran
towards the crime scene only after Diosdado was shot. And, the appellant
considers it as suppression of evidence when the prosecution did not
present as witnesses Diosdado's companions who were allegedly seated
with Diosdado when he was shot.
As to SPO4 Nigparanon, the appellant intimates improper motives in that
the said witnesses is a neighbor of the Iroys, and when he testified, a case
for arbitrary detention had already been filed against him by the appellant.
The appellant further claims of alleged omissions and unexplained entries
in the police blotter.
Finally, the appellant wants us to favorably consider his defense of alibi
which, according to him, gained strength because of the lack of evidence
on the identity of the killer. Furthermore, he stresses that his conduct in
voluntarily going to the police station after having been informed that he,
among many others, was summoned by the police is hardly the actuation
of the perpetrator of the killing of Diosdado Iroy specially so if Rosita
Iroy's claim is to be believed that moments after the shooting she shouted
that Daniel Quijada shot Diosdado Iroy.
In its Appellee's Brief, the People refutes every argument raised by the
appellant and recommends that we affirm in toto the challenged decision.
After a careful scrutiny of the records and evaluation of the evidence
adduced by the parties, we find this appeal to be absolutely without merit.
The imputation of ill-motive on the part of Rosita Iroy and the basis therefor
hardly persuade. The appellant was the one who was boxed by and lost to
Diosdado Iroy in their fight on the night of 25 December 1992. It is then
logical and consistent with human experience that it would be the appellant
who would have forthwith entertained a grudge, if not hatred, against
Diosdado. No convicting evidence was shown that Rosita had any reason
to falsely implicate the appellant in the death of her brother Diosdado.
The claim that Rosita could not have seen who shot her brother Diosdado
because, as testified to by defense witnesses Nistal and Aranzado, she
was inside the dancing hall and rushed to her brother only after the latter
was shot is equally baseless. The following testimony of Rosita shows
beyond cavil that she saw the assailant:
Q You said that you were initially dancing inside the dancing place and you
went out, about what time did you get out?
A 11:00 o'clock.
Q And you were standing about two (2) meters from Diosdado Iroy until
11:30 when the incident happened?
A Yes I was standing.
Q And where did you face, you were facing Diosdado Iroy or the dancing
area?
A I was intending to go near my brother. I was approaching and getting
near going to my brother Diosdado Iroy and while in the process I saw
Daniel Quijada shot my brother Diosdado Iroy. 23
xxx xxx xxx
Q And in your estimate, how far was your brother Diosdado Iroy while he
was sitting at the plaza to the dancing place?
A More or less four (4) meters distance.
COURT:
From the dancing hall?
A Yes, your honor.
Q And in your observation, was the place where Diosdado Iroy was sitting
lighted or illuminated?
A Yes, sir.
Q What kind of light illuminated the place?
A I do not know what kind of light but it was lighted.
A It is electric light coming from a bulb.
Q Where is that electric bulb that illuminated the place located?
A It was placed at the gate of the dancing place and the light from the
house.
Q You said gate of the dancing place, you mean the dancing place was
enclosed at that time and there was a gate, an opening?
A Yes, sir.
Q What material was used to enclose the dancing place?
A Bamboo.
Q And how far was the bulb which was placed near the entrance of the
dancing place to the place where Diosdado Iroy was sitting?
A Five (5) meters.
Q You mentioned also that there was a light coming from the house, now
whose house was that?
A The house of spouses Fe and Berto, I do not know the family name.
Q Was the light coming from the house of spouses Fe and Berto an electric
light?
A Yes, sir.
Q And in your estimate, how far was the source of light of the house of Fe
and Berto to the place where Diosdado Iroy was sitting?
A About six (6) meters distance. 24
xxx xxx xxx
Q What was the color of the electric bulb in the gate of the dancing place?
A The white bulb. 25
The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly
declared:
The factual findings of the Court in the instant case is anchored principally
in ". . . observing the attitude and deportment of witnesses while listening
to them speak" (People vs. Magaluna, 205, SCRA 266).
thereby indicating that on the basis of the witnesses' deportment and
manner of testifying, the declarations of Nistal and Aranzado failed to
convince the trial court that they were telling the truth. Settled is the rule
that the factual findings of the trial court, especially on the credibility of
witnesses, are accorded great weight and respect. For, the trial court has
the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion
or the sudden pallor of a discovered lie or the tremulous mutter of a
reluctant answer or the forthright tone of a ready reply; 26 or the furtive
glance, the blush of conscious shame, the hesitation, the sincere of the
flippant or sneering tone, the heat, the calmness, the yarn, the sigh, the
candor or lack of it, the scant or full realization of the solemnity of an oath,
the carriage and mien. 27 The appellant has miserably failed to convince us
that we must depart from this rule.
Neither are we persuaded by the claimed suppression of evidence
occasioned by the non-presentation as prosecution witnesses any of the
companions of Diosdado who were seated with him when he was shot. In
the first place, the said companions could not have seen from their back
the person who suddenly shot Diosdado. In the second place, the
testimony of the companions would, at the most, only corroborate that of
Rosita Iroy. Besides, there is no suggestion at all that the said companions
were not available to the appellant. It is settled that the presumption in
Section 3 (e), Rule 131 of the Rules of Court that evidence willfully
suppressed would be adverse if produced does not apply when the
testimony of the witness is merely corroborative or where the witness is
available to the accused. 28
The alleged improper motive on the part of SPO4 Nigparanon simply
because he is a neighbor of the Iroy's remains purely speculative, as no
evidence was offered to establish that such a relationship affected SPO4
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the
presumption of regularity in the performance of his official duty. 29 As to the
alleged omissions and unexplained entries in the police blotter, the same
were sufficiently clarified by SPO4 Nigparanon.
The defense of alibi interposed by the appellant deserves scant
consideration. He was positively identified by a credible witness. It is a
fundamental judicial dictum that the defense of alibi cannot prevail over the
positive identification of the accused. 30 Besides, for that defense to
prosper it is not enough to prove that the accused was somewhere else
when the crime was committed; he must also demonstrate that it was
physically impossible for him to have been at the scene of the crime at the
time of its commission. 31 As testified to by defense witness Julian Bonao,
the Tagbilaran wharf, where the appellant said he was, is only about eight
to nine kilometers away from the crime scene and it would take only about
thirty minutes to traverse the distance with the use of a tricycle. 32 It was,
therefore, not physically impossible for the appellant to have been at the
scene of the crime at the time of its commission.
Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he
would not have voluntarily proceeded to the police station. This argument
is plain sophistry. The law does not find unusual the voluntary surrender of
offenders; it even considers such act as a mitigating
circumstance. 33 Moreover, non-flight is not conclusive proof of
innocence. 34
The evidence for the prosecution further established with moral certainty
that the appellant had no license to possess or carry a firearm. The firearm
then that he used in shooting Diosdado Iroy was unlicensed. He, therefore,
committed the crime of aggravated illegal possession of firearm under the
second paragraph of Section 1 of P.D. No. 1866, which reads:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Firearms, Ammunition or Instruments Used or Intended to be Used in
the Manufacture of Firearms or Ammunition The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose or possess any firearm, part of firearm, ammunition or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
In light of the doctrine enunciated in People vs. Tac-an, 35 and reiterated
in People vs. Tiozon, 36 People vs. Caling, 37 People
vs. Jumamoy, 38 People vs. Deunida, 39 People vs. Tiongco, 40 People
vs. Fernandez, 41 and People vs. Somooc, 42 that one who kills another with
the use of an unlicensed firearm commits two separate offenses of (1)
either homicide or murder under the Revised Penal Code, and (2)
aggravated illegal possession of firearm under the second paragraph of
Section 1 of P.D. No. 1866, we sustain the decision of the trial court finding
the appellant guilty of two separate offenses of murder in Criminal Case
No. 8178 and of aggravated illegal possession of firearm in Criminal Case
No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a
violation of the constitutional proscription against double jeopardy if an
accused is prosecuted for homicide or murder and for aggravated illegal
possession of firearm, they at the same time laid down the rule that these
are separate offenses, with the first punished under the Revised Penal
Code and the second under a special law; hence, the constitutional bar
against double jeopardy will not apply. We observed in Tac-an:
It is elementary that the constitutional right against double jeopardy
protects one against a second or later prosecution for the same offense,
and that when the subsequent information charges another and different
offense, although arising from the same act or set of acts, there is no
prohibited double jeopardy. In the case at bar, it appears to us quite clear
that the offense charged in Criminal Case No. 4007 is that of unlawful
possession of an unlicensed firearm penalized under a special statute,
while the offense charged in Criminal Case No. 4012 was that of murder
punished under the Revised Penal Code. It would appear self-evident that
these two (2) offenses in themselves are quite different one from the other,
such that in principle, the subsequent filing of Criminal Case No. 4012 is
not to be regarded as having placed appellant in a prohibited second
jeopardy.
And we stressed that the use of the unlicensed firearm cannot serve to
increase the penalty for homicide or murder; however, the killing of a
person with the use of an unlicensed firearm, by express provision of P.D.
No. 1866, shall increase the penalty for illegal possession of firearm.
In Tiozon, we stated:
It may be loosely said that homicide or murder qualifies the offense
penalized in said Section 1 because it is a circumstance which increases
the penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense; otherwise, an anomalous absurdity results
whereby a more serious crime defined and penalized in the Revised Penal
Code is absorbed by a statutory offense, which is just a malum prohibitum.
The rationale for the qualification, as implied from the exordium of the
decree, is to effectively deter violations of the laws on firearms and to stop
the "upsurge of crimes vitally affecting public order and safety due to the
proliferation of illegally possessed and manufactured firearms, . . . " In fine
then, the killing of a person with the use of an unlicensed firearm may give
rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866
and (b) violation of either Article 248 (Murder) or Article 249 (Homicide) of
the Revised Penal Code. The accused cannot plead one as a bar to the
other; or, stated otherwise, the rule against double jeopardy cannot be
invoked because the first is punished by a special law while the second,
homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez [24 SCRA 163, 171], We held:
It is a cardinal rule that the protection against double jeopardy may be
invoked only for the same offense or identical offenses. A simple act may
offend against two (or more entirely distinct and unrelated provisions of
law, and if one provision requires proof of an additional act or element
which the other does not, an acquittal or conviction or a dismissal of the
information under one does not bar prosecution under the other. Phrased
elsewise, where two different laws (or articles of the same code) defines
two crimes, prior jeopardy as to one of them is not obstacle to a
prosecution of the other, although both offenses arise from the same fact, if
each crime involves some important act which is not an essential element
of the other.
In People vs. Bacolod, [89 Phil. 621], from the act of firing a shot from a
sub-machine gun which caused public panic among the people present
and physical injuries to one, informations of physical injuries through
reckless imprudence and for serious public disturbance were filed.
Accused pleaded guilty and was convicted in the first and he sought to
dismiss the second on the ground of double jeopardy. We ruled:
The protection against double jeopardy is only for the same offense. A
simple act may be an offense against two different provisions of law and if
one provision requires proof of an additional fact which the other does not,
an acquittal or conviction under one does not bar prosecution under the
other.
Since the informations were for separate offense[s] the first against a
person and the second against public peace and order one cannot be
pleaded as a bar to the other under the rule or double jeopardy.
In Caling, we explicitly opined that a person charged with aggravated
illegal possession of firearm under the second paragraph of Section 1 of
P.D. No. 1866 can also be separately charged with and convicted of
homicide or murder under the Revised Penal Code and punished
accordingly. Thus:
It seems that the Court a quo did indeed err in believing that there is such
a thing as "the special complex crime of Illegal Possession of Unlicensed
Firearm Used in Homicide as provided for and defined under the 2nd
paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty
thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended,"
reads as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Firearms [or] Ammunition or Instruments Used or Intended to be Used in
the Manufacture of Firearms or Ammunition. The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearm, part of firearm, ammunition or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
What is penalized in the first paragraph, insofar as material to the present
case is the sole, simple act of a person who shall, among others,
"unlawfully possess any firearm . . (or) ammunition . . ." Obviously,
possession of any firearm is unlawful if the necessary permit and/or license
therefor is not first obtained. To that act is attached the penalty of reclusion
temporal, maximum, to reclusion perpetua. Now, if "with the use of (such)
an unlicensed firearm, a "homicide or murder is committed," the crime is
aggravated and is more heavily punished, with the capital punishment.
The gravamen of the offense in its simplest form is, basically, the fact of
possession of a firearm without license. The crime may be denominated
simple illegal possession, to distinguish it from its aggravated form. It is
aggravated if the unlicensed firearm is used in the commission of a
homicide or murder under the Revised Penal Code. But the homicide or
murder is not absorbed in the crime of possession of an unlicensed
firearm; neither is the latter absorbed in the former. There are two distinct
crimes that are here spoken of . One is unlawful possession of a firearm,
which may be either simple or aggravated, defined and punished
respectively by the first and second paragraphs of Section 1 of PD
1866. The other is homicide or murder, committed with the use of an
unlicensed firearm. The mere possession of a firearm without legal
authority consummates the crime under P.D. 1866, and the liability for
illegal possession is made heavier by the firearm's use in a killing. The
killing, whether homicide or murder, is obviously distinct from the act of
possession, and is separately punished and defined under the Revised
Penal Code. (emphasis supplied)
In Jumamoy, we reiterated Caling and amplified the rationale on why an
accused who kills another with an unlicensed firearm can be prosecuted
and punished for the two separate offenses of violation of the second
paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under
the Revised Penal Code. Thus:
Coming to the charge of illegal possession of firearms, Section 1 of P.D.
No. 1866 penalizes, inter alia, the unlawful possession of firearms or
ammunition with reclusion temporal in its maximum period to reclusion
perpetua. However, under the second paragraph thereof, the penalty is
increased to death if homicide or murder is committed with the use of an
unlicensed firearm. It may thus be loosely said that homicide or murder
qualifies the offense because both are circumstances which increase the
penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense. If these were to be so, an anomalous absurdity
would result whereby a more serious crime defined and penalized under
the Revised Penal Code will be absorbed by a statutory offense, one which
is merely malum prohibitum. Hence, the killing of a person with the use of
an unlicensed firearm may give rise to separate prosecutions for (a) the
violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article
248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The
accused cannot plead one to bar the other; stated otherwise, the rule
against double jeopardy cannot be invoked as the first is punished by a
special law while the second Murder or Homicide is punished by the
Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991);
People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the
imposition of the death penalty is prohibited by the Constitution, the proper
imposable penalty would be the penalty next lower in degree, or reclusion
perpetua. (emphasis supplied)
In Deunida, in discussing the propriety of the Government's action in
withdrawing an information for murder and pursuing only the information
for "Qualified Illegal Possession of Firearm," this Court categorically
declared:
At the outset, it must be stressed that, contrary to the prosecution's legal
position in withdrawing the information for murder, the offense defined in
the second paragraph of Section 1 of P.D. No. 1866 does not absorb the
crime of homicide or murder under the Revised Penal Code and, therefore,
does not bar the simultaneous or subsequent prosecution of the latter
crime. The 1982 decision in Lazaro vs. People, involving the violation of
P.D. No. 9, which the investigating prosecutor invokes to justify the
withdrawal, is no longer controlling in view of our decisions in People
vs. Tac-an, People vs. Tiozon, and People vs. Caling.
In Somooc, we once more ruled:
The offense charged by the Information is clear enough from the terms of
that document, although both the Information and the decision of the trial
court used the term "Illegal Possession of Firearm with Homicide," a
phrase which has sometimes been supposed to connote a "complex crime"
as used in the Revised Penal Code. Such nomenclature is, however, as we
have ruled in People vs. Caling, a misnomer since there is no complex
crime of illegal possession of firearm with homicide. The gravamen of the
offense penalized in P.D. No. 1866 is the fact of possession of a firearm
without a license or authority for such possession. This offense is
aggravated and the imposable penalty upgraded if the unlicensed firearm
is shown to have been used in the commission of homicide or murder,
offenses penalized under the Revised Penal Code. The killing of a human
being, whether characterized as homicide or murder, is patently distinct
from the act of possession of an unlicensed firearm and is separately
punished under the provision of the Revised Penal Code.
The foregoing doctrine suffered a setback when in our decision of 27 June
1995 in People vs. Barros, 43 we set aside that portion of the appealed
decision convicting the appellant of the offense of murder and affirmed that
portion convicting him of illegal possession of firearm in its aggravated
form. We therein made the following statement:
[A]ppellant may not in the premises be convicted of two separate offenses
[of illegal possession of firearm in its aggravated form and of murder], but
only that of illegal possession of firearm in its aggravated form, in light of
the legal principles and propositions set forth in the separate opinion of Mr.
Justice Florenz D. Regalado, to which the Members of the Division,
the ponente included, subscribe.
The pertinent portions of the separate opinion of Mr. Justice Florenz D.
Regalado referred to therein read as follows:
This premise accordingly brings up the second query as to whether or not
the crime should properly be the aggravated illegal possession of an
unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm
punished by death under the second paragraph of Section 1, Presidential
Decree No. 1866, and it is on this point that the writer dissents from the
holding which would impose a separate penalty for the homicide in addition
to that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to
the accused, the Court has correctly held that to be the simple possession
punished with reclusion temporal in its maximum period to reclusion
perpetua in the first paragraph of Section 1. Where, complementarily, the
unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the
graver offense of aggravated illegal possession. In other words, the
homicide or murder constitutes the essential element for integrating into
existence the capital offense of the aggravated form of illegal possession of
a firearm. Legally, therefore, it would be illogical and unjustifiable to use the
very same offenses of homicide or murder as integral elements of and to
create the said capital offense, and then treat the former all over again as
independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive
standpoint, virtually of the nature of the so-called, "special complex
crimes," which should more appropriately be called composite crimes,
punished in Article 294, Article 297 and Article 335. They are neither of the
same legal basis as nor subject to the rules on complex crimes in Article
48, since they do not consist of a single act giving rise to two or more
grave or less grave felonies nor do they involve an offense being a
necessary means to commit another. However, just like the regular
complex crimes and the present case of aggravated illegal possession of
firearms, only a single penalty is imposed for each of such composite
crimes although composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been
covered by the conceptual definition of a complex crime under Article 48,
but the Code imposes a single definite penalty therefor it cannot also be
punished as a complex crime, much less as separate offense, but with only
the single penalty prescribed by law. Thus, even where a single act results
in two less grave felonies of serious physical injuries and serious slander
by deed, the offense will not be punished as a delito compuesto under
Article 48 but as less serious physical injuries with ignominy under the
second paragraph of Article 265. The serious slander by deed is integrated
into and produces a graver offense, and the former is no longer separately
punished.
What is, therefore, sought to be stressed by such alternative illustration, as
well as the discussion on complex and composite crimes, is that when an
offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority
would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is
more of a question of classification for purposes of the other provisions of
the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included
in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually source from
the very provisions of Presidential Decree No. 1866 which sought to
"consolidate, codify and integrate" the "various laws and presidential
decrees to harmonize their provision" which "must be updated and revised
in order to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlaying the provisions
of the Anti-Carnapping Act of 1972, wherein the principal crime to be
charged is still carnapping, although the penalty therefore is increased
when the owner, driver or occupant of the carnapped vehicle is killed. The
same situation, with escalating punitive provisions when attended by a
killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974
and the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still
are piracy, highway robbery and cattle rustling. Also, in the matter of
destructive arson, the principal offense when, inter alia, death results as a
consequences of the commission of any of the acts punished under said
article of the Code.
In the present case, the academic value of specifying whether it is a case
of illegal possession of firearm resulting in homicide or murder, or,
conversely, homicide or murder through the illegal possession and use of
an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken
either way, the penalty for aggravated illegal possession of a firearm is the
single indivisible penalty of death, in which case the provision on recidivism
would not apply. If, however, the illegal possession is not established but
either homicide or murder is proved, then the matter of recidivism may
have some significance in the sense that, for purposes thereof, the
accused was convicted of a crime against persons and he becomes a
recidivist upon conviction of another crime under the same title of the
Code.
Lastly, on the matter of the offense or offenses to be considered and the
penalty to be imposed when the unlawful killing and the illegal possession
are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render
a joint decision thereon, imposing a single penalty for aggravated illegal
possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either
simple illegal possession, homicide or murder per se. The same procedural
rule and substantive disposition should be adopted if one information for
each offense was drawn up and these informations were individually
assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession
separately from the homicide or murder could be susceptible of abuse
since it entails undue concentration of prosecutorial powers and discretion.
Prefatorily, the fact that the killing was committed with a firearm will
necessarily be known to the police or prosecutorial agencies, the only
probable problem being the determination and obtention of evidence to
show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without
alleging therein that the same was committed by means of an unlicensed
firearm, the case would not fall under Presidential Decree No. 1866. Even
if the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use
of a firearm by itself, even if proved in that case, would not affect the
accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the
prosecution intending to file thereafter the charge for homicide or murder
but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other
hand, the separate and subsequent prosecution for homicide or murder
prospers, the objective of Presidential Decree No. 1866 cannot be
achieved since the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the
proposition that the real offense committed by the accused, and for which
sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible
problems projected herein may be minimized or obviated if both offenses
involved are charged in only one information or that the trial thereof, if
separately charged, be invariably consolidated for joint decision. Conjointly,
this is the course necessarily indicated since only a single composite crime
is actually involved and it is palpable error to deal therewith and dispose
thereof by segregated parts in piecemeal fashion.
If we follow Barros, the conviction of the appellant for murder in Criminal
Case No. 8178 must have to be set aside. He should only suffer the
penalty for the aggravated illegal possession of firearm in Criminal Case
No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the
existing conflicting doctrines applicable to prosecutions for murder or
homicide and for aggravated illegal possession of firearm in instance
where an unlicensed firearm is used in the killing of a person. After a
lengthy deliberation thereon, the Court en banc arrived at the conclusion
that the rule laid down in Tac-an, reiterated
in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is
the better rule, for it applies the laws concerned according to their letter
and spirit, thereby steering this Court away from a dangerous course which
could have irretrievably led it to an inexcusable breach of the doctrine of
separation of powers through judicial legislation. That rule upholds and
enhances the lawmaker's intent or purpose in aggravating the crime of
illegal possession of firearm when an unlicensed firearm is used in the
commission of murder or homicide. Contrary to the view of our esteemed
brother, Mr. Justice Florenz D. Regalado, in his Concurring and Dissenting
Opinion in the case under consideration, Tac-an did not enunciated an
"unfortunate doctrine" or a "speciously camouflaged theory" which
"constitutes an affront on doctrinal concepts of penal law and assails even
the ordinary notions of common sense."
If Tac-an did in fact enunciated such an "unfortunate doctrine," which this
Court has reiterated in a convincing number of cases and for a convincing
number of years, so must the same verdict be made in our decision
in People vs. De Gracia, 44 which was promulgated on 6 July 1994. In the
latter case, we held that unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate prosecution for a
violation of Section 1 of P.D. No. 1866 and also for a violation of Articles
134 and 135 of the Revised Penal Code on rebellion. A distinction between
that situation and the case where an unlicensed firearm is used in
homicide or murder would have no basis at all. In De Gracia, this Court,
speaking through Mr. Justice Florenz D. Regalado, made the following
authoritative pronouncements:
III. As earlier stated, it was stipulated and admitted by both parties that
from November 30, 1989 up to and until December 9, 1989, there was a
rebellion. Ergo, our next inquiry is whether or not appellant's possession of
the firearms, explosives and ammunition seized and recovered from him
was for the purpose and in furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in
furtherance of rebellion pursuant to paragraph 2 of Article 135 of the
Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty
of prision mayor in its minimum period." The court below held that
appellant De Gracia, who had been servicing the personal needs of Col.
Matillano (whose active armed opposition against the Government,
particularly at the Camelot Hotel, was well known), is guilty of the act of
guarding the explosives and "molotov" bombs for and in behalf of the latter.
We accept this finding of the lower court.
The above provision of the law was, however, erroneously and improperly
used by the court below as a basis in determining the degree of liability of
appellant and the penalty to be imposed on him. It must be made clear that
appellant is charged with the qualified offense of illegal possession of
firearms in furtherance of rebellion under Presidential Decree No. 1866
which, in law, is distinct from the crime of rebellion punished under Article
134 and 135 of the Revised Penal Code. There are two separate statutes
penalizing different offenses with discrete penalties. The Revised Penal
Code treats rebellion as a crime apart from murder, homicide, arson, or
other offenses, such as illegal possession of firearms, that might
conceivably be committed in the course of a rebellion. Presidential Decree
No. 1866 defines and punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as part of a rebellion.
Missing p. 26
conceptual changes over time," as the concurring and dissenting opinion
charges.
The majority now reiterates the doctrine in Tac-an and the subsequent
cases not because it has become hostage to the "inertia of time [which]
has always been the obstacle to the virtues of change," as the concurring
and dissenting opinion finds it to be, but rather because it honestly believes
that Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied
in Tac-an is an "affront on doctrinal concepts of penal laws and assails
even the ordinary notions of common sense," the blame must not be laid at
the doorsteps of this Court, but on the lawmaker's. All that the Court did
in Tac-an was to apply the law, for there was nothing in that case that
warranted an interpretation or the application of the niceties of legal
hermeneutics. It did not forget that its duty is a merely to apply the law in
such a way that shall not usurp legislative powers by judicial legislation and
that in the course of such application or construction it should not make or
supervise legislation, or under the guise of interpretation modify, revise,
amend, distort, remodel, or rewrite the law, or give the law a construction
which is repugnant to its terms. 45
Murder and homicide are defined and penalized by the Revised Penal
Code 46 as crimes against persons. They are mala in se because malice
or dolo is a necessary ingredient therefor. 47 On the other hand, the
offense of illegal possession of firearm is defined and punished by a
special penal law, 48 P.D. No. 1866. It is a malum prohibitum 49 which the
lawmaker, then President Ferdinand E. Marcos, in the exercise of his
martial law powers, so condemned not only because of its nature but also
because of the larger policy consideration of containing or reducing, if not
eliminating, the upsurge of crimes vitally affecting public order and safety
due to the proliferation of illegally possessed and manufactured firearms,
ammunition, and explosives. If intent to commit the crime were required,
enforcement of the decree and its policy or purpose would be difficult to
achieve. Hence, there is conceded wisdom in punishing illegal possession
of firearm without taking into account the criminal intent of the possessor.
All that is needed is intent to perpetrate the act prohibited by law, coupled,
of course, by animus possidendi. However, it must be clearly understood
that this animus possidendi is without regard to any other criminal
or felonious intent which an accused may have harbored in possessing the
firearm. 50
A long discourse then on the concepts of malum in se and malum
prohibitum and their distinctions is an exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice
Regalado in his Concurring and Dissenting Opinion, to wit:
The second paragraph of the aforestated Section 1 expressly and
unequivocally provides for such illegal possession and resultant killing as a
single integrated offense which is punished as such. The majority not only
created two offenses by dividing a single offense into two but, worse, it
resorted to the unprecedented and invalid act of treating the original
offense as a single integrated crime and then creating another offense by
using a component crime which is also an element of the former.
It would already have been a clear case of judicial legislation if the illegal
possession with murder punished with a single penalty have been divided
into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative
powers for this Court to now, as it has done, treat that single offense as
specifically described by the law and impose reclusion perpetua therefor
(since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to
be able to impose the death sentence. For indeed, on this score, it is
beyond cavil that in the aggravated form of illegal possession, the
consequential murder (or homicide) is an integrated element or integral
component since without the accompanying death, the crime would merely
be simple illegal possession of a firearm under the first paragraph of
Section 1.
The second paragraph of Section 1 of P.D. No. 1866 does not warrant and
support a conclusion that it intended to treat "illegal possession
and resultant killing" (emphasis supplied) "as a single and integrated
offense" of illegal possession with homicide or murder. It does not use the
clause as a result or on the occasion of to evince an intention to create a
single integrated crime. By its unequivocal and explicit language, which we
quote to be clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed. (emphasis supplied)
the crime of either homicide or murder is committed NOT AS A RESULT
OR ON THE OCCASION of the violation of Section 1, but WITH THE USE
of an unlicensed firearm, whose possession is penalized therein. There is a
world of difference, which is too obvious, between (a) the commission of
homicide or murder as a result or on the occasion of the violation of
Section 1, and (b) the commission of homicide or murder with the use of an
unlicensed firearm. In the first, homicide or murder is not the original
purpose or primary objective of the offender, but a secondary event or
circumstance either resulting from or perpetrated on the occasion of the
commission of that originally or primarily intended. In the second, the
killing, which requires a mens rea is the primary purpose, and to carry that
out effectively the offender uses an unlicensed firearm.
As to the question then of Mr. Justice Regalado of whether this Court
should also apply the rule enunciated here to P.D. No. 532 (Anti-Piracy and
Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling
Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing
Stiffer Penalties Therefor), the answer is resoundingly in the negative. In
those cases, the lawmaker clearly intended a single integrated offense or a
special complex offense because the death therein occurs as a result or on
the occasion of the commission of the offenses therein penalized or was
not the primary purpose of the offender, unlike in the second paragraph of
Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:
Sec. 3. Penalties. Any person who commits piracy or highway
robbery/brigandage as herein defined, shall, upon conviction by competent
court be punished by:
a. Piracy. The penalty of reclusion temporal in its medium and maximum
periods shall be imposed. If physical injuries or other crimes are committed
as a result or on the occasion thereof, the penalty of reclusion
perpetua shall be imposed. If rape, murder or homicide is committed as a
result or on the occasion of piracy, or when the offenders abandoned the
victims without means of saving themselves, or when the seizure is
accomplished by firing upon or boarding a vessel, the mandatory penalty
of death shall be imposed.
b. Highway Robbery/Brigandage. The penalty of reclusion temporal in
its minimum period shall be imposed. If physical injuries or other crimes
are committed during or on the occasion of the commission of robbery or
brigandage, the penalty of reclusion temporal in its medium and maximum
periods shall be imposed. If kidnapping for ransom or extortion, or murder
or homicide, or rape is committed as a result or on the occasion
thereof, the penalty of death shall be imposed. (emphasis supplied)
(b) Section 8 of P.D. No. 533 reads in part as follows:
Sec. 8. Penal provisions. Any person convicted of cattle rustling as
herein defined shall, irrespective of the value of the large cattle involved,
be punished by prision mayor in its maximum period to reclusion
temporal in its medium period if the offense is committed without violence
against or intimidation of persons or force upon things. If the offense is
committed with violence against or intimidation of persons or force upon
things, the penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed. If a person is seriously injured or killed as a
result or on the occasion of the commission of cattle rustling, the penalty of
reclusion perpetua to death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
Sec. 3. Penalties. Violations of this Decree and the rules and regulations
mentioned in paragraph (f) of Section 1 hereof shall be punished as
follows:
a. by imprisonment from 10 to 12 years, if explosives are used: Provided,
that if the explosion results (1) in physical injury to person, the penalty shall
be imprisonment from 12 to 20 years, or (2) in the loss of human life, then
the penalty shall be imprisonment from 20 years to life, or death;
b. by imprisonment from 8 to 10 years, if obnoxious or poisonous
substances are used: Provided, that if the use of such substances
results (1) in physical injury to any person, the penalty shall be
imprisonment from 10 to 12 years, or (2) in the loss of human life, then the
penalty shall be imprisonment from 20 years to life, or death; . . .
(emphasis supplied)
The unequivocal intent of the second paragraph of Section 1 of P.D. No.
1866 is to respect and preserve homicide or murder as a distinct offense
penalized under the Revised Penal Code and to increase the penalty for
illegal possession of firearm where such a firearm is used in killing a
person. Its clear language yields no intention of the lawmaker to repeal or
modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such
a way that if an unlicensed firearm is used in the commission of homicide
or murder, either of these crimes, as the case may be, would only serve to
aggravate the offense of illegal possession of firearm and would not
anymore be separately punished. Indeed, the words of the subject
provision are palpably clear to exclude any suggestion that either of the
crimes of homicide and murder, as crimes mala in se under the Revised
Penal Code, is obliterated as such and reduced as a mere aggravating
circumstance in illegal possession of firearm whenever the unlicensed
firearm is used in killing a person. The only purpose of the provision is to
increase the penalty prescribed in the first paragraph of Section 1
reclusion temporal in its maximum period to reclusion perpetua
to death, seemingly because of the accused's manifest arrogant defiance
and contempt of the law in using an unlicensed weapon to kill another, but
never, at the same time, to absolve the accused from any criminal liability
for the death of the victim.
Neither is the second paragraph of Section 1 meant to punish homicide or
murder with death if either crime is committed with the use of an
unlicensed firearm, i.e., to consider such use merely as a qualifying
circumstance and not as an offense. That could not have been the
intention of the lawmaker because the term "penalty" in the subject
provision is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for homicide or murder. We explicitly stated
in Tac-an:
There is no law which renders the use of an unlicensed firearm as an
aggravating circumstance in homicide or murder. Under an information
charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the second
offense of homicide or murder to death. . . . The essential point is that the
unlicensed character or condition of the instrument used in destroying
human life or committing some other crime, is not included in the inventory
of aggravating circumstances set out in Article 14 of the Revised Penal
Code.
A law may, of course, be enacted making the use of an unlicensed
firearm as a qualifying circumstance. This would not be without precedent.
By analogy, we can cite Section 17 of B.P. Blg. 179, which amended the
Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides
that when an offender commits a crime under a state of addiction, such a
state shall be considered as a qualifying aggravating circumstance in the
definition of the crime and the application of the penalty under the Revised
Penal Code.
In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a
legislative intent to decriminalize homicide or murder if either crime is
committed with the use of an unlicensed firearm, or to convert the offense
of illegal possession of firearm as a qualifying circumstance if the firearm
so illegally possessed is used in the commission of homicide or murder. To
charge the lawmaker with that intent is to impute an absurdity that would
defeat the clear intent to preserve the law on homicide and murder and
impose a higher penalty for illegal possession of firearm if such firearm is
used in the commission of homicide or murder.
Evidently, the majority did not, as charged in the concurring and dissenting
opinion, create two offenses by dividing a single offense into two. Neither
did it resort to the "unprecedented and invalid act of treating the original
offense as a single integrated crime and then creating another offense by
using a component crime which is also an element of the former." The
majority has always maintained that the killing of a person with the use of
an illegally possessed firearm gives rise to two separate offenses of (a)
homicide or murder under the Revised Penal Code, and (b) illegal
possession of firearm in its aggravated form.
What then would be a clear case of judicial legislation is an interpretation
of the second paragraph of Section 1 of P.D. No. 1866 that would make it
define and punish a single integrated offense and give to the words WITH
THE USE OF a similar meaning as the words AS A RESULT OR ON THE
OCCASION OF, a meaning which is neither born out by the letter of the
law nor supported by its intent. Worth noting is the rule in statutory
construction that if a statute is clear, plain, and free from ambiguity, it must
be given its literal meaning and applied without attempted
interpretation, 51 leaving the court no room for any extended ratiocination or
rationalization of the law. 52
Peregrinations into the field of penology such as on the concept of a single
integrated crime or composite crimes, or into the philosophical domain of
integration of the essential elements of one crime to that of another would
then be unnecessary in light of the clear language and indubitable purpose
and intent of the second paragraph of Section 1 of P.D. No. 1866. The
realm of penology, the determination of what should be criminalized, the
definition of crimes, and the prescription of penalties are the exclusive
prerogatives of the legislature. As its wisdom may dictate, the legislature
may even create from a single act or transaction various offenses for
different purposes subject only to the limitations set forth by the
Constitution. This Court cannot dictate upon the legislature to respect the
orthodox view concerning a single integrated crime or composite crimes.
The only apparent obstacle to the imposition of cumulative penalties for
various acts is the rule on double jeopardy. This brings us to the
proposition in the dissenting opinion of Mr. Justice Regalado that the
majority view offends the constitutional bar against double jeopardy under
the "same-evidence" test enunciated in People vs. Diaz. 53 He then
concludes:
In the cases now before us, it is difficult to assume that the evidence for the
murder in the first charge of aggravated illegal possession of firearm with
murder would be different from the evidence to be adduced in the
subsequent charge for murder alone. In the second charge, the illegal
possession is not in issue, except peripherally and inconsequentially since
it is not an element or modifying circumstance in the second charge, hence
the evidence therefor is immaterial. But, in both prosecutions, the evidence
on murder is essential, in the first charge because without it the crime is
only simple illegal possession, and, in the second charge, because murder
is the very subject of the prosecution. Assuming that all the other
requirements under Section 7, Rule 117 are present, can it be doubted that
double jeopardy is necessarily present and can be validly raised to bar the
second prosecution for murder?
In fact, we can extrapolate the constitutional and reglementary objection to
the cases of the other composite crimes for which a single penalty is
imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the
same offense or either estafa or falsification; or how the accused convicted
of robbery with homicide under Article 294 can be legally charged again
with either of the same component crimes of robbery or homicide; or how
the convict who was found guilty of rape with homicide under Article 335
can be duly haled before the court again to face charges of either the same
rape or homicide. Why, then, do we now sanction a second prosecution for
murder in the cases at bar since the very same offense was an
indispensable component for the other composite offense of illegal
possession of firearm with murder? Why would the objection of non bis in
idim as a bar to a second jeopardy lie in the preceding examples and not
apply to the cases now before us?
We are unable to agree to the proposition. For one, the issue of double
jeopardy is not raised in this case. For another, the so-called "same-
evidence" test is not a conclusive, much less exclusive, test in double
jeopardy cases of the first category under the Double Jeopardy Clause
which is covered by Section 21, Article III of the Constitution and which
reads as follows:
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act.
Note that the first category speaks of the same offense. The second refers
to the same act. This was explicitly distinguished in Yap vs. Lutero, 54 from
where People vs. Relova 55 quotes the following:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The
first sentence of clause 20, section 1, Article III of the Constitution, ordains
that "no person shall be twice put in jeopardy of punishment for the
same offense." (emphasis in the original) The second sentence of said
clause provides that "if an act is punishable by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act." Thus, the first sentence prohibits double
jeopardy of punishment for the same offense whereas, the second
contemplates double jeopardy of punishment for the same act. Under the
first sentence, one may be twice put in jeopardy of punishment of the same
act, provided that he is charged with different offenses, or the offense
charged in one case is not included in, or does not include, the crime
charged in the other case. The second sentence applies, even if the
offenses charged are not the same, owing to the fact that one constitutes a
violation of an ordinance and the other a violation of a statute. If the two
charges are based on one and the same act, conviction or acquittal under
either the law or the ordinance shall bar a prosecution under the other.
Incidentally, such conviction or acquittal is not indispensable to sustain the
plea of double jeopardy of punishment for the same offense. So long as
jeopardy has been attached under one of the informations charging said
offense, the defense may be availed of in the other case involving the
same offense, even if there has been neither conviction nor acquittal in
either case.
Elsewise stated, where the offenses charged are penalized either by
different sections of the same statute or by different statutes, the important
inquiry relates to the identity of offenses charged. The constitutional
protection against double jeopardy is available only where an identity as
shown to exist between the earlier and the subsequent offenses
charged. 56 The question of identity or lack of identity of offenses is
addressed by examining the essential elements of each of the two offenses
charged, as such elements are set out in the respective legislative
definitions of the offenses involved. 57
If may be noted that to determine the "same offense" under the Double
Jeopardy Clause of the Fifth Amendment of the Constitution of the United
States of America which reads:
[N]or shall any person be subject for the same offense to be twice put in
jeopardy of life or limb. . .
the rule applicable is the following: "where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is
whether each provision requires proof of an additional fact which the other
does not." 58
The Double Jeopardy Clause of the Constitution of the United States of
America was brought to the Philippines through the Philippine Bill of 1 July
1902, whose Section 5 provided, inter alia:
[N]o person for the same offense shall be twice put in jeopardy of
punishment . . . .
This provision was carried over in identical words in Section 3 of the Jones
Law of 29 August 1916. 59 Then under the 1935 Constitution, the Jones
Law provision was recast with the addition of a provision referring to the
same act. Thus, paragraph 20, Section 1, Article III thereof provided as
follows:
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act.
This was adopted verbatim in Section 22, Article IV of the 1973
Constitution and in Section 21, Article III of the present Constitution.
This additional-element test in Lutero and Relova and
in Blockburger, Gore, and Missouri would safely bring the second
paragraph of Section 1 of P.D. No. 1866 out of the proscribed double
jeopardy principle. For undeniably, the elements of illegal possession of
firearm in its aggravated form are different from the elements of homicide
or murder, let alone the fact that these crimes are defined and penalized
under different laws and the former is malum prohibitum, while both the
latter are mala in se. Hence, the fear that the majority's construction of the
subject provision would violate the constitutional bar against double
jeopardy is unfounded.
The penalty which the trial court imposed in Criminal Case No. 8179 for
illegal possession of firearm in its aggravated form must, however, be
modified. The penalty prescribed by P.D. No. 1866 is death. Since Section
19(1), Article III of the Constitution prohibits the imposition of the death
penalty, the penalty next lower in degree, reclusion perpetua, must be
imposed.
WHEREFORE, the instant appeal is DISMISSED, and the challenged
decision of 30 September 1993 of Branch 1 of the Regional Trial Court of
Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty
beyond reasonable doubt of the crime of murder in Criminal Case No.
8178 and of illegal possession of firearm in its aggravated form in Criminal
Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as
amended by the Order of 29 October 1993, is sustained; however, the
penalty imposed in the second case is changed to Reclusion
Perpetua from the indeterminate penalty ranging from Seventeen (17)
years, Four (4) months, and One (1) day, as minimum, to Twenty (20)
years and One (1) day, as maximum.
Costs de oficio.
SO ORDERED.
Padilla, Bellosillo, Melo, Francisco, Panganiban and Torres, Jr., JJ.,
concur.
Separate Opinions
HERMOSISIMA, JR., J.: concurring
Murder, most foul for betraying a depraved heart, is the inordinate killing of
a human being, unlawfully and with premeditated malice, wilfully,
deliberately, a felony described in and penalized under Article 248 of the
Revised Penal Code.
On the other hand, the unlawful possession of an unlicensed firearm, that
artifice consisting essentially of a straight tube to propel a shot, shell or
bullet by the explosion of gunpowder, is penalized as the offense of Illegal
Possession of Unlicensed Firearm by Presidential Decree No. 1866 of
martial law vintage.
Against accused-appellant Daniel Quijada y Circulado were filed the two
aforestated cases: Murder, Criminal Case No. 8178 and Illegal Possession
of an Unlicensed Firearm, Criminal Case No. 8179 "which firearm was
carried by the said accused outside of his residence and was used by him
in committing the crime of murder" in violation of paragraph 2, Section 1, of
Presidential Decree (P.D.) No. 1866. After a joint trial, the trial court
convicted accused-appellant in both cases and sentenced him to suffer the
penalty of Reclusion Perpetua for the crime of Murder and imprisonment a
period of Seventeen (17) Years, Four (4) Months and One (1) Day, as
minimum, to Twenty (20) Years and One (1) Day, as maximum, for the
offense of Qualified Illegal Possession of Unlicensed Firearm penalized
under the aforecited P.D. No. 1866.
There is no question that, as found by the majority, the crime of Murder and
the offense of Illegal Possession of Firearm had been established by
evidence beyond the shadow of doubt.
While the majority affirms the twin conviction of the accused-appellant in
both Criminal Case No. 8178 for Murder and Criminal Case No. 8179 for
Illegal Possession of an Unlicensed Firearm, the minority asserts the
dissenting opinion that, as in People vs. Barros, 1 accused-appellant may
only be convicted of the offense of Illegal Possession of Unlicensed
Firearm in its aggravated form, inferring that the crime of Murder has been
absorbed by that offense or rather that the two (2) crimes may be said to
have been complexed with each other.
While the teleological debate on whether criminal punishment is justified as
retribution or as reformation continually rages, hardly disputable is the
static view and unchanged reality that the primordial justification for
punishing any man is that he has broken the law. While in Anglo-American
jurisdictions, there exist what are known as common law offenses, in our
jurisdiction, no act is a crime unless it is made so by statute. 2 Every law
enacted by the legislature for the restraint and punishment of crimes and
for the preservation of the public peace, health and morals comes within
the police power of the State. 3
The right of prosecution and punishment for a crime is one of the attributes
that by a natural law belongs to the sovereign power instinctively charged
by the common will of the members of society to look after, guard and
defend the interests of the community, the individual and social rights and
the liberties of every citizen and the guaranty of the exercise of his rights. 4
In the exercise of its right, duty and power to determine and define crimes
and their corresponding penalties, the lawmaking body is initially and
usually guided by the general condition of penal liability under the legal
maxim, "actus non facit reum, nisi mens sit rea," which, if freely translated,
means that "an act is not criminal unless the mind is criminal." On the basis
of this, which is commonly known as the mens rea doctrine, our Revised
Penal Code was enacted to largely penalize unlawful acts accompanied by
evil intent which are denominated en masse as crimes mala in se. The
paramount consideration here is the existence of a malicious intention
borne out by the concurrence of freedom, intelligence and intent which
altogether make up the "criminal mind" behind the resultant "criminal act".
It is not always, however, that the evil to society anent a criminal act
depends upon the state of mind of the offender. And no less valid, critical
and indispensable is the prerogative of the legislature, through special
enactments, to forbid the doing of a particular act and legislate the
commission of such act to be a crime, regardless of the intent of the doer.
In many crimes, made by statutory enactment, the intention of the person
who commits the crime is entirely immaterial. This is necessarily so. If it
were not, the statute as a deterrent influence would be substantially
worthless. It would be impossible of execution . In many cases the act
complained of is itself that which produces the pernicious effect which the
statute seeks to avoid. In those cases, the pernicious effect is produced
with precisely the same force and result whether the intention of the person
performing the act is good or bad . . . It is quite different from that large
class of crimes, made such by the common law or by statute, in which the
injurious effect upon the public depends upon the corrupt intention of the
person perpetrating the act. 5
In general, it may be said that there must be malus animus or a criminal
intent. But there is also a class of crimes known as crimes mala
prohibita which, on the broad grounds of public policy, criminalize certain
acts without the usual requisite proof of the intent of the actor to commit
the crime.
In the case of The State vs. McBrayer (98 N.C., 623) this court stated:
It is a mistaken notion that positive, willful intent to violate the criminal law
is an essential ingredient in every criminal offense, and that where there is
an absence of such intent there is no offense; this is especially true as to
statutory offenses. When the statute plainly forbids an act to be done, and
it is done by some person, the law implies conclusively the guilty intent,
although the offender was honestly mistaken as to the meaning of the law
he violates. When the language is plain and positive, and the offense is not
made to depend upon the positive, willful intent and purpose, nothing is left
to interpretation.
xxx xxx xxx
Care must be exercised in distinguishing the difference between the intent
to commit the crime and the intent to perpetrate the act The accused did
not consciously intend to commit a crime; but he did intend to commit an
act, and that is, by the very nature of things, the crime itself-intent and all.
The working of the law is such that the intent and the act are inseparable.
The act is the crime. 6
Indeed, to distinguish between crimes mala in se and mala prohibita by
simply pointing out that the former refer to felonies in the Revised Penal
Code while the latter are punished under special laws, does not amount to
much, for there are indeed felonies that are penalized regardless of the
felon's criminal intentions, and conversely, there are also special offenses
that require proof of criminal intent.
Whether or not in a given case the statute is to be construed as forbidding
the doing of an act and criminalizing the same without regard to the intent
of the perpetrator of the act, is to be determined by the court by
considering the subject matter of the prohibition as well as the language of
the statute, thereby ascertaining the intention of the lawmaker. The index of
whether or not a crime is malum prohibitum is not its form, that is, whether
or not it is found in the Revised Penal Code or in a special penal statute,
but the legislative intent that underlies its continuing existence as part of
the law of the land.
Considering the nature of the offense, the purpose to be accomplished, the
practical methods available for the enforcement of the law, and such other
matters as throw light upon the meaning of the language, the question in
interpreting a criminal statute is whether the intention of the legislature was
to make knowledge of the facts an essential element of the offense, or to
put upon everyone the burden of finding out whether his contemplated act
is prohibited, and of refraining from it if it is. 7
In this light, we have not just a few times precisely delineated the malum
prohibitum nature of P.D. No. 1866, which is a codification of the laws on
unlawful possession of unlicensed firearms, among others.
As has been aforesaid, in determining whether or not an offense is malum
prohibitum or not, the relevant inquiry must concern the legislative intent as
to the requirement of criminal intent or lack thereof. In this respect, the
discussion of Justice Regalado in People vs. De Gracia 8 is appropriate:
The first issue to be resolved is whether or not intent to possess is an
element of the offense punishable under Presidential Decree No. 1866
and, if so, whether appellant . . . did intend to illegally possess firearms and
ammunition
The rule is that ownership is not an essential element of illegal possession
of firearms and ammunition. . . .
But is the mere fact of physical or constructive possession sufficient to
convict a person for unlawful possession of firearms or must there be an
intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good faith and
absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit
the crime is not necessary. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but he did intend to commit
an act, and that act is, by the very nature of things, the crime itself. In the
first (intent to commit the crime), there must be criminal intent; in the
second (intent to perpetrate the act), it is enough that the prohibited act is
done freely and consciously.
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. 9
In its enactment, P.D. No. 1866 was undoubtedly intended as a substantial
measure in response to the perennial problem of law enforcement and
public order and safety, Thus, we always pointed out that P.D. No. 1866
was passed because of an upsurge of crimes vitally affecting public order
and safety due to the proliferation of illegally possessed and manufactured
firearms, which crimes have resulted in loss of human lives, damage to
property and destruction of valuable resources of the country. 10
The aforecited public policy concern justified the blanket prohibition in P.D.
No. 1866 against mere possession of unlicensed firearms, among others,
without regard to the criminal intent of the possessor. Indeed, what is being
punished is the illegal possession, among others, of unlicensed firearms.
What the decree does is to define the offense and provide for the penalty
that may be imposed, specifying the qualifying circumstances that would
aggravate the offense. There is no encroachment on the power of the court
to determine after due hearing whether the prosecution has proved beyond
reasonable doubt that the offense of illegal possession of firearms has
been committed and that the qualifying circumstances attached to its has
been established also beyond reasonable doubt as the Constitution and
judicial precedents require. 11
Insofar as material to the present case, what is penalized is the sole,
simple act of a person who shall, among others, "unlawfully possess any
firearm". The gravamen of the offense is the fact of possession of a firearm
without a license or authority for such possession. 12 It is only the offense of
Illegal Possession of Unlicensed Firearm that is, in the corporeal and
material sense, provided for and defined in Section 1 of P.D. No. 1866. The
penalty therefor, however, is another matter.
It is undisputed that P.D. No. 1866 was validly enacted in 1983 in the
exercise of legislative powers by then President Marcos under the 1973
Constitution, which powers inherently included the prerogative to prohibit
certain acts perceived by the lawmaker to be substantially prejudicial to the
public interest. Thus, Section 1 forbids the possession by any person of a
firearm for which he does mot have the proper license and/or authority. The
sole act forbidden, prohibited and thereby criminalized is the illegal
possession of an unlicensed firearm. That is all. However, while the offense
penalized is singular, the penalties for such offense are plural and are
distinguished from each other by certain circumstances which the
lawmaker considered to be valid reasons to impose penalties heavier than
the others. Thus, as a whole, the pertinent portion of said decree provides,
to wit:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
Be Used in the Manufacture of Firearms or Ammunition. The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with crimes of rebellion, insurrection, or subversion, the penalty
of death shall be imposed.
xxx xxx xxx 13
The circumstances (1) that homicide or murder is committed with the use
of an unlicensed firearm and (2) that the illegal possession of unlicensed
firearm is committed in furtherance of, or incident to, or in connection with
the crimes of rebellion, insurrection or subversion, only qualify or aggravate
the offense of Illegal Possession of Unlicensed Firearm for purposes of
increasing the penalty therefor. These circumstances do not create another
offense or a special kind of illegal possession or another form of illegal
possession. When either of such circumstances is attendant under the
premises of a case, such circumstance only authorizes and justifies the
imposition of a higher penalty. It only has the effect of upgrading the
penalty and not of supplying an additional, separate element of a new or
another offense. Thus, there is no such thing as a special complex crime of
illegal possession of unlicensed firearm used in homicide, 14 or murder for
that matter. Neither could we have conceived what we have been calling
the aggravated form of illegal possession 15 or qualified illegal
possession, 16 to be a separate, distinct and independent offense from
illegal possession without any qualifying circumstance. Even Justice
Regalado concedes in his Separate Opinion in People vs. Barros 17 that
"the nomenclature of aggravated illegal possession is used just for
expediency, in the same manner as that of 'qualified rape' under Article 335
when the sexual assault is attended by the circumstances therein which
result in increased penalties."
In People vs. Barros, 18 we were mainly concerned with the issue as to
whether or not, whenever a killing is effected with the use of an unlicensed
firearm, the malefactor should be punished separately for both offenses,
with the unlawful taking of life to be proceeded against under the
corresponding provision of the Revised Penal Code and the illegal
possession of the firearm under P.D. No. 1866. There, we decided that said
malefactor ought only to be punished for qualified illegal possession of
firearm essentially because the two crimes are not altogether separate or
disconnected from each other both in law and in fact and could thus be
viewed as a situation bordering close to or approximating the concept of
complex crime proper and/or as a situation where the graver offense (of
qualified illegal possession) can be said to have absorbed the lesser
offense (of homicide or murder) which constitutes the essential element
siring the so-called "capital offense of the aggravated form of illegal
possession".
There is no time more appropriate to re-examine the Barros ruling than
now, for to persist in it would result in an absurd situation that cannot be
justified even under the hallowed principle of stare decisis.
Merely that two crimes are not altogether separate or disconnected from
each other both in law and in fact, is of no moment. In the first place,
should they in law and in fact be altogether separate or disconnected from
each other to foreclose their absorption into or complexing with, each
other? In the second place, that very statement provides a basic
presumption and reality that must be fully understood insofar as its
implications and consequences are concerned. They are precisely two
crimes, and these two crimes are punished under two separate, distinct
and independent laws. Punishment is a corollary of lawbreaking by a
member of society whose law is broken. 19 In this case, there are two
separate laws involved, two separate crimes punished by two laws, and
two counts of breaking the law constituting two crimes for which two
separate penalties are provided. Concededly, accused-appellant performed
only one action which was made basis for two Informations each charging
a distinct offense. But it is also a well-established rule in this jurisdiction
that
a single act may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional fact or
element which the other does not, an acquittal or conviction or a dismissal
of the information under one does not bar prosecution under the other.
Phrased elsewise, where two different laws (or articles of the same code)
define two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the same facts,
if each crime involves some important act which is not an essential
element of the other. 20
Where there are, as in this case, two crimes punished by two distinct laws
enacted for absolutely different purposes, and both laws are clear and
unambiguous, and no absurdity or unreasonableness is evident from the
application of both, it is not the proper function of the court to change or
alter in any way the state of things thereunder. That it is desirable,
equitable, wise, humane or charitable to find a way to decrease the penalty
or avoid imposition of the penalties under the two laws, is not denied, but
at most we can only "legislate interstitially . . . confined from molar to
molecular motions" 21 and clear up ambiguities or fill in the gaps. Gaps in
our conscience and our personal convictions must be found and provided
some other legitimate channel for expression and realization.
The law on complex crime proper is not applicable here. One of the
reasons often cited in proscribing complexing a crime under the Revised
Penal Code and an offense under a special law is that the latter is not
punishable by a penalty divisible into periods. Now following our ruling
in People vs. Simon, 22 the suppletory effect of the Revised Penal Code
upon P.D. No. 1866 is now starkingly broadened because though it is a
special penal law, the penalties provided therein are actually taken from
the Revised Penal Code in their technical nomenclature, duration,
correlation and legal effects, such that the same treatment as that
respecting Revised Penal Code penalties may now be given to penalties
under certain special laws.
However, notwithstanding the import of our ruling in the said case
of People vs. Simon, it still cannot be said that there is no longer any
obstacle in complexing murder with qualified illegal possession because
the very essence and nature of each of these crimes remains unchanged
and unaffected. Murder, or for that matter, homicide, remains distinct from
the crime of Illegal Possession of Unlicensed Firearm where the firearm is
used in perpetrating the killing. The defendant in such cases committed
two different acts with two separate criminal intents, to wit, the desire to
take unlawfully the life of a person and the sheer violation of the law which
prohibits the possession of a firearm without the required permit. 23 In other
words, there is in this instant case a case of plurality of crimes where
accused-appellant performed one act which resulted in two different crimes
penalized under two separate laws which have distinct purposes and are
independent from each other.
Neither does the doctrine of absorption obtain in this case. For absorption
to take place under the circumstances thereof, there must be two
materially distinct and separate offenses involved murder and what has
been referred to as the capital offense of the aggravated form of illegal
possession of unlicensed firearm. As has been explained hereinabove,
however, the offense defined in Section 1 of P.D. No. 1866 is plainly, simply
illegal possession of unlicensed firearm. The circumstance of homicide or
murder only operates to upgrade the penalty for the offense of illegal
possession of unlicensed firearm and does not as it has not been intended
to, sire and penalize a second offense or the so-called capital offense of
the aggravated form of illegal possession of unlicensed firearm. The
offense of illegal possession, as such, in turn, cannot validly absorb murder
or homicide because the latter is not an element of the former. Nothing
more indubitably evidences the intent of the legislature to maintain the
integrity and effectivity of the penal provision for murder and homicide, on
the one hand, and of Section 1 of P.D. No. 1866, on the other, than the
very pertinent provision of said decree which neither created any special
complex crime nor amended nor repealed the provisions on murder or
homicide nor defined a separate offense of an aggravated form of illegal
possession.
We are not unaware of the fundamental legal principle that every doubt in
the construction of a criminal statute should be resolved in favor of any
person accused of a crime. To mete out a lesser penalty is certainly
favorable to an accused; such, however, presupposes the existence of
some doubt in the application of the law pertinent to his circumstances. In
the instant case, there is no ambiguity, ambivalence, confusion, doubt or
question respecting the applicable laws. The penalties provided for by the
Revised Penal Code for the crime of Murder and by P.D. No. 1866 for the
offense of Illegal Possession of Unlicensed Firearm are not under attack
And it could not also be said that the application of said laws and the
imposition of said penalties bring about an undeniable situation
characterized by such absurdity, unreasonableness, and socially, morally
or philosophically virulent consequences as to justify the utter disregard of
said laws and their substantive provisions regarding penalties. Certainly,
there must be a limit to what the court may do to remedy what it perceives
as a difficult but avoidable situation. The consequences of the application
of our valid, subsisting laws, after all, do not always have to satisfy our own
standards of what is just and fair.
Finally, with the enactment of Republic Act (R.A.) No. 7659 24 reimposing
the death penalty for certain heinous crimes, an anomalous situation may
merge in our midst if we apply Barros. Said Act enumerated particular
crimes under the Revised Penal Code and specific offenses under special
laws that shall henceforth contain provisions imposing the death penalty
under certain circumstances. One of the crimes enumerated thereunder is
Murder, which may now be punished by death. 25 The death penalty may
now also be meted out in, among others, the case of drug-related crimes
as provided for in the Dangerous Drugs Act of 1972 26 and the crimes
provided for in the Anti-Carnapping Act of 1972. 27
Of utmost significance is the fact that not included in the enumeration of
special offenses where the death penalty has been revived, is P.D. No.
1866. R.A. 7659 being a penal statute which must, as a rule, be strictly
construed against the State, the inescapable and inevitable conclusion is
that Congress, in enacting R.A. No. 7659, did not intend to revive the death
penalty provision found in the second and third paragraphs of Section 1 of
P.D. No. 1866.
The foregoing makes for a tremendous import. On the one hand, were we
to insist that murder may be complexed with or absorbed by illegal
possession of unlicensed firearm where said firearm is used in the
commission of murder or homicide, a person convicted for said offense
may only be punished with a penalty no higher than reclusion perpetua,
since R.A. No. 7659 did not revive the death penalty provision in Section 1
of P.D. No. 1866. On the other hand, a person who has used a licensed
firearm in committing murder may be punished with death if there were
sufficient aggravating circumstances attendant in the killing, since R.A. No.
7659 restored the death penalty for the crime of murder. No much deeper
analysis is needed to realize that an anomalous, absurd situation confronts
us where the use of an unlicensed firearm in killing is rewarded by a lesser
penalty. Herein lies real injustice. And we cannot scale down this
resounding message which indifference on our part would impart: if "would
be" criminals were to kill, they ought to kill with unlicensed firearms so that
they will fall within the purview of P.D. No. 1866 with respect to which the
death penalty has not been restored and not within the provisions of the
Revised Penal Code for murder, for then depending upon the nature and
number of the aggravating circumstances that may attend such crimes,
they face the possibility of being sentenced to death, an eventuality that
could never be under P.D. No. 1866.
Certainly, we cannot close our eyes to this absurd situation, and it will be
irresponsible of us to allow the absurdity to persist. We should not
stubbornly cling to the illusion that murder and illegal possession of
unlicensed firearm used in murder may be complexed with each other or
absorbed into each other. Anyway, they are not so disconnected from each
other that doing so would translate into a lower penalty. For us to cling to
such an illusion would be tantamount a complete disregard of legal
concepts and principles in the realm of crime and punishment that has
remain good, sound, valid law.
WHEREFORE, the conviction of the accused by the court a quo of the two
(2) crimes aforesaid, that is, for Murder and Illegal Possession of
Unlicensed Firearm, should be, as it is, affirmed.
REGALADO, J.: concurring and dissenting
I concur in the majority opinion only insofar as it holds accused-appellant
Daniel Quijada y Circulado guilty of the crime of murder with the use of an
illegally possessed firearm and punishes him therefor. I confess, however,
that I cannot in conscience reconcile myself with the unfortunate doctrine
first announced in People vs. Tac-an, 1 and now reiterated by the majority,
that said appellant should be twice penalized for two supposedly distinct
offenses involving (1) the murder of the victim with an illegally possessed
firearm, under Presidential Decree No. 1866 and (2) the same murder of
that same victim, this time under Article 248 of the Revised Penal Code.
I have heretofore rejected this very same dual verdicts of conviction in my
concurring opinion in People vs. Barros, 2 which found favor with all my
brethren in the Second Division, including Chief Justice Andres R. Narvasa
acting as the ponente of the decision in that case and in his capacity as the
Chairman of that Division. Indeed, I feel quite strongly that through the play
on words that illegal possession of firearm used in a killing is punishable
under Presidential Decree No. 1866, while the same killing with the same
illegally possessed firearm is separately punished under Article 248 of the
Revised Penal Code, we have been beguiled by the semantical tyranny of
shifting emphases.
I endeavored to analyze what I considered the error of that approach and
thereby expose the speciously camouflaged theory espoused in Tac-
an which I believe, and still do, constitutes an affront on doctrinal concepts
of penal law and assails even the ordinary notions of common sense. To
avoid excursive reading, I quote my humble explanation
in Barros somewhat at length:
Under the dispositions heretofore made by the Court involving the crimes
of homicide or murder through the use of an illegally possessed firearm,
and the same is true with the case at bar, the following queries may be
posed:
1. Should the crimes of homicide or murder, which are the end results, be
punished separately from and in addition to the liability for illegal
possession of the firearm as the instrument or the means employed?
2. On the other hand, should not the principal sole offense be the
aggravated form of illegal possession of a firearm under the second
paragraph of Section 1 of Presidential Decree No. 1866, with the homicide
or murder being absorbed therein as an integral element of the crime in its
aggravated form?
3. If either homicide or murder and illegal possession of firearm are so
charged in one and the same information, should they be considered and
punished as a single offense of homicide or murder with the use of an
unlicensed firearm, or as a case of aggravated illegal possession of firearm
resulting in homicide or murder, with the death penalty to be imposed in
either case?
4. If homicide or murder is charged in a separate information while
aggravated illegal possession of firearm is made the subject of a separate
indictment filed simultaneously with or prior or subsequent to the former,
but with the respective informations on the killing and the illegal possession
mutually alleging facts regarding the other offense as an attendant
circumstance, should the accused be held liable for two distinct crimes
regardless of whether the cases are jointly tried by the same court or
separately by the two courts where the informations were independently
filed?
On the first question, it is true that from the theoretical concept of the
requisite mens rea, the killing as the result of the criminal design arose
from a specific criminal intent, that is, the animus interficendi or intent to
kill. The illegal possession of the firearm requires a discrete and specific
intent to possess the weapon, which is the animus possidendi, coupled
with the physical possession thereof.
It would, therefore, appear at first blush that the two offenses having arisen
from different criminal intents, this would be, under the philosophical bases
for concurso de delitos, a case of material or real plurality under which
different crimes have been committed and for each of which a separate
criminal liability attaches. The flaw in this approach, however, is that
although two crimes have been committed, they are not altogether
separate or disconnected from each other both in law and in fact. The
illegally possessed firearm having been the weapon used in the killing, the
former was at least the necessary, although not an indispensable, means
to commit the other.
The situation thus borders closer to the concept of a complex crime proper,
technically known as a delito complejo, rather than to the postulate of two
separate crimes. It is true that former doctrines were to the effect that there
can be no complex crime where one of the component offenses is
punished by a special law. The rationale therefore was that in a complex
crime, Article 48 of the Code prescribes that the penalty shall be for the
graver offense to be applied in its maximum period. Since, at that time, the
penalties for crimes provided in special laws were not divided into periods,
it would be impossible to apply Article 48.
That ratiocination no longer applies now, specifically with respect to the
ease at bar, since the penalties in Presidential Decree No. 1866 were all
taken from the scale of penalties in the Code. The only possible difficulty in
this novatory approach would be on the first kind of complex crime, that is,
the delito compuesto since it exists "(w)hen a single act constitutes two or
more grave or less grave felonies." The use of that particular term for the
delicts committed bars the application of that form of complex crime to
offenses under Presidential Decree No. 1866, since "felonies" are offenses
provided and defined in the Code.
That objection would not, however, apply to a delito complejo since it is
sufficient therefor that "an offense is a necessary means for committing the
other." By these considerations, however, the writer does not mean to
imply that a killing through the use of an illegally-possessed firearm is
a delito complejo under Article 48 of the Code. As was carefully stated,
such an offense merely borders closer to or approximates the concept of
a delito complejo, but it thereby emphasizes the thesis that the offenses
should not be considered as separate crimes to be individually punished
under the principle of material plurality.
This premise accordingly brings up the second query as to whether or not
the crime should properly be the aggravated illegal possession of an
unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm
punished by death under the second paragraph of Section 1, Presidential
Decree No. 1866, and it is on this point that the writer dissents from the
holding which would impose a separate penalty for the homicide in addition
to that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to
the accused, the Court has correctly held that to be the simple possession
punished with reclusion temporal in its maximum period to reclusion
perpetua in the first paragraph of Section 1. Where, complementarily, the
unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the
graver offense of aggravated illegal possession. In other words, the
homicide or murder constitutes the essential element for integrating into
existence the capital offense of the aggravated form of illegal possession
of a firearm. Legally, therefore, it would be illogical and unjustifiable to use
the very same offenses of homicide or murder as integral elements of and
to create the said capital offense, and then treat the former all over again
as independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive
standpoint, virtually of the nature of the so-called "special complex crimes,"
which should more appropriately be called composite crimes, punished in
Article 294, Article 297 and Article 335. They are neither of the same legal
basis as nor subject to the rules on complex crimes in Article 48, since they
do not consist of a single act giving rise to two or more grave or less grave
felonies nor do they involve an offense being a necessary means to
commit another. However, just like the regular complex crimes and the
present case of aggravated illegal possession of firearms, only a single
penalty is imposed for each of such composite crimes although composed
of two or more offenses.
On the other hand, even if two felonies would otherwise have been
covered by the conceptual definition of a complex crime under Article 48,
but the Code imposes a single definite penalty therefor, it cannot also be
punished as a complex crime, much less as separate offenses, but with
only the single penalty prescribed by law. Thus, even where a single act
results in two less grave felonies of serious physical injuries and serious
slander by deed, the offense will not be punished as a delito
compuesto under Article 48 but as less serious physical injuries with
ignominy under the second paragraph of Article 265. (People vs. Lasala, L-
12141, January 30, 1962, 4 SCRA 61.) The serious slander by deed is
integrated into and produces a graver offense, and the former is no longer
separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as
well as the discussion on complex and composite crimes, is that when an
offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority
would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is
more of a question of classification for purpose of the other provisions of
the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included
in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually sourced from
the very provisions of Presidential Decree No. 1866 which sought to
"consolidate, codify and integrate" the various laws and presidential
decrees to harmonize their provisions" which "must be updated and
revised in order to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlying the provisions
of the Anti-Carnapping Act of 1972 (R.A. No. 6539, August 26, 1972),
wherein the principal crime to be charged is still carnapping, although the
penalty therefore is increased when the owner, driver or occupant of the
carnapped vehicle is killed. The same situation, with escalating punitive
provisions when attended by a killing, are found in the Anti-Piracy and Anti-
Highway Robbery Law of 1974 (P.D. No. 532, August 8, 1974) and the Anti-
Cattle Rustling Law of 1974 (P.D. No. 533, August 8, 1974), wherein the
principal crimes still are piracy, highway robbery and cattle rustling. Also, in
the matter of destructive arson (Article 320, Revised Penal Code, as last
amended by R.A. No. 7659), the principal offense remains as
arson although the same becomes a capital offense when inter alia, death
results as a consequence of the commission of any of the acts punished
under said article of the Code.
In the present case, the academic value of specifying whether it is a case
of illegal possession of firearm resulting in homicide or murder, or,
conversely, homicide or murder through the illegal possession and use of
an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken
either way, the penalty for aggravated illegal possession of a firearm is the
single indivisible penalty of death, in which case the provision on recidivism
would not apply. If, however, the illegal possession is not established but
either homicide or murder is proved, then the matter of recidivism may
have some significance in the sense that, for purposes thereof, the
accused was convicted of a crime against persons and he becomes a
recidivist upon conviction, or another crime under the same title of the
Code.
Lastly, on the matter of the offense or offenses to be considered and the
penalty to be imposed when the unlawful killing and the illegal possession
are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render
a joint decision thereon, imposing a single penalty for aggravated illegal
possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either
simple illegal possession, homicide or murder per se. The same procedural
rule and substantive disposition should be adopted if one information for
each offense was drawn up and these informations were individually
assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession
separately from the homicide or murder could be susceptible of abuse
since it entails undue concentration of prosecutorial powers and discretion.
Prefatorily, the fact that the killing was committed with a firearm will
necessarily be known to the police or prosecutorial agencies, the only
probable problem being the determination and obtention of evidence to
show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without
alleging therein that the same was committed by means of an unlicensed
firearm, the case would not fall under Presidential Decree No. 1866. Even
if the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use
of a firearm by itself, even if proved in that case, would not affect the
accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the
prosecution intending to file thereafter the charge for homicide or murder
but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other
hand, the separate and subsequent prosecution for homicide or murder
prospers, the objective of Presidential Decree No. 1866 cannot be
achieved since the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the
proposition that the real offense committed by the accused, and for which
sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible
problems projected herein may be minimized or obviated if both offenses
involved are charged in only one information or that the trial thereof, if
separately charged, be invariably consolidated for joint decision.
Conjointly, this is the course necessarily indicated since only a single
composite crime is actually involved and it is palpable error to deal
therewith and dispose thereof by segregated parts in piecemeal fashion.
(emphasis supplied, with some footnotes in the original opinion being
incorporated in the text by way of documentation.)
With appropriate respect for the opinions en contra, I take this opportunity
not only to elaborate upon and further clarify my aforequoted views
in Barros but, hopefully, to also cleanse the expanding framework of our
criminal law from ideas which have not grown apace with conceptual
changes over time.
My position in Barros is challenged as being a novel theory which sets
aside the doctrine followed in some cases previously decided by the Court
and the rationale on which they were based. That is understandable, since
the inertia of time has always been the obstacle to the virtues of change.
That mind-set appears to predominate in the action of the majority in the
instant cases.
However, it is precisely for that reason that we are now reviewing those
doctrines, as we have done in a number of cases before, instead of taking
a stance of infallibility. And, if it does turn out that we are mistaken, then in
law and in conscience we must act accordingly, for, as has been said, the
beauty of a mistake is that it can be corrected; the tragedy is that it call be
perpetuated.
I
1. It is obvious that our present problem had its origin in the aforecited
case of People vs. Tac-an where the controversial theory was first laid
down that since one offense (illegal possession of an unlicensed firearm) is
penalized under a special statute while the other (murder) is punished
under the Revised Penal Code, they can be validly prosecuted and
punished separately. The trial court imposed the death penalty in each of
said cases, the offenses having been committed in 1984 with the decision
rendered therein in 1986, but this Court modified those sentences to two
penalties of reclusion perpetua because of the supervenience of the 1987
Constitution. Significantly, it was explicitly accepted therein that "(a)lthough
the circumstance that human life was destroyed with the use of an
unlicensed firearm is not an aggravating circumstance . . . it may still be
taken into account to increase the penalty to death (reclusion
perpetua under the 1987 Constitution) because of the explicit provision of
P.D. No. 1866."
2. That mother case of Tac-an gave birth to a progeny of identically-based
decisions, the first being People vs. Tioson 3 where, in addition to the
rationale that the offenses were punished under separate laws, the theory
of separate penalties was further sought to be justified thus: "It does not,
however, follow that the homicide or murder is absorbed in the offense;
otherwise an anomalous absurdity results whereby a more serious crime
defined and penalized in the Revised Penal Code is absorbed by a
statutory offense, which is just a malum prohibitum."
3. Next came People vs. Caling 4 which is notable for lucidly laying down
the distinction between what it categorized for easy reference as
the simple and aggravated forms of illegal possession of unlicensed
firearms, although it adhered to the theory of separate offenses where a
killing is involved but hewing only to the reason that this is because these
offenses are punished by separate laws, as theorized in Tac-an. In Caling,
however, the accused was acquitted and no application of penalties was
actually made.
4. People vs. Jumamoys 5 sustained separate convictions for murder and
the aggravated form of illegal possession of an unlicensed firearm on the
same rationale as Tioson, with an added advertence to People
vs. Doriguez 6 that such separate convictions will theoretically not run afoul
of the prohibition against double jeopardy.
5. This was followed by People vs. Deunida 7 where, on two charges for
murder and aggravated illegal possession of firearms, the accused was
convicted only of the latter offense since the prosecution withdrew the
charge for murder. The Court, in this case, considered the withdrawal of
the indictment for murder as erroneous on the bases of the doctrines
in Tac-an, Caling and Tioson.
6. In People vs. Somooc, 8 the accused who committed homicide with the
use of an illegally possessed unlicensed firearm was charged with and
convicted of the aggravated form of illegal possession and punished
by reclusion perpetua since the offense was committed in 1988. The Court
called attention to the doctrine and ratiocination in Caling.
II
It will, therefore, be observed that "the settled ruling in the aforementioned
cases" is actually a skein drawn from the same single thread originally
introduced by Tac-an and stitched into the jurisprudential fabric with some
permutative designs. It is not necessarily "unfortunate if we should
suddenly depart therefrom" where the benefit of a second view and the
grace of hindsight dictate such a course of action.
The Court will recall the series of cases, when the proscription against the
imposition of the death penalty was still upon us, wherein we initially
provided in our decisions different and inconsistent rules on the proper
periods of the penalty for murder, at that time punishable by reclusion
temporal in its maximum period to death. We eventually settled
on reclusion perpetua as the medium period. 9 Of more recent memory was
the spate of conflicting positions on the penalty for illegal possession and
traffic in dangerous drugs, and the amendments brought about by Republic
Act No. 7659, until we arrived at a solution in People vs. Simon. 10 Nobody
was heard to complain that we were running afoul of the doctrine of stare
decisis, as now appears to be the stance of the majority.
Indeed, if hard cases make bad law, bad law also makes hard cases,
whether what is involved is statutory or case law. Of course, in discharging
our duty of judicial interpretation, there may be not only merit but also
facility, if not the expediency of the slothful path of least resistance, in just
adopting the rule of uniformity on the bases of past decision. But, equally
as commendable as the doctrine of stare decisis itself, is the well-known
and ancient wisdom in the reminder that such doctrine does not mean blind
adherence to precedents.
III
Obviously, because of the reasoning in Tac-an, the majority opinion
emphasizes that in imposing a single penalty of reclusion perpetua for the
qualified violation of Presidential Decree No. 1866 and treating murder
merely as an element of the statutory offense, an incongruous situation
results wherein a more serious crime under the Revised Penal Code,
which is malum in se, is absorbed by a lesser offense under a special law
which is only malum prohibitum. Hence, it was urged during the
deliberations that we should not adopt a novel doctrine which rests on a
shaky foundation.
1. The basic premise of this argument is definitely off-tangent. The penalty
for the aggravated illegal possession of unlicensed firearm, in the
terminology of Caling, is the single indivisible penalty of death which would
be imposable regardless of the generic modifying circumstances 11 or of
whether the killing constitutes murder or homicide. The penalty under
Presidential Decree No. 1866 is, therefore, decidedly higher than that for
murder, although it is now reclusion perpetua to death in Republic Act No.
7659, and, being thereby covered by Article 63 of the Code, will be
reduced to reclusion perpetua in the absence of aggravating
circumstances. Of course, it does not even have to be pointed out that the
penalty for homicide is only reclusion temporal in its entire extent.
2. Even assuming arguendo that the penalty for the aforesaid taking of
human life could be higher than the penalty for aggravated illegal
possession which would absorb the former, that is not an unheard-of or
earthshaking legal tableau. The objections to the doctrine of absorption
here is reminiscent of what Judge Agustin P. Montesa reportedly stated, as
quoted in People vs. Hernandez, et al., 12 that: "The theory of absorption
tenaciously adhered to by the defense to the effect that rebellion absorbs
all these more serious offenses is preposterous, to say the least,
considering that it is both physically and metaphysically impossible for a
smaller unit or entity to absorb a bigger one."
Unfortunately, that astute observation was rejected by this Court, and
advisedly so, since we are bound by legal precepts and not by physical or
metaphysical laws. It is now an accepted dictum that the life of the law is
not necessarily logic but experience. These considerations must have
prompted the Court to also defend the doctrine of absorption in treason
cases, 13 holding that more serious offenses committed for treasonous
purposes are absorbed in the former, with the piquant observation
in Labra that "(t)he factual complexity of the crime of treason does not
endow it with the functional ability of worm multiplication or amoeba
reproduction."
In the scheme of penalties under the Revised Penal Code, it is accepted
that a lesser offense may absorb a graver offense. As already stated, the
lesser offense of rebellion which is punished by prision mayor absorbs the
graver offense of murder which is now punished by reclusion perpetua to
death, and all other offenses even with higher penalties if committed in
furtherance of rebellion. 14 On a lower level of comparison and closer to the
case at bar, the lesser offense of forcible abduction which is punished
by reclusion temporal 15 absorbs the graver offense of illegal detention of a
woman which is punished by reclusion perpetua to death. 16 The lower
offense of slavery involving the kidnapping of a person which is punished
by prision mayor 17 absorbs the higher offense of kidnapping which is
punished by reclusion perpetua to death. 18
3. Neither should the fact that the aggravated form of illegal possession of
an unlicensed firearm is a malum prohibitum punished by a special law
inveigh against the doctrine of absorption we have adopted in Barros. In
fact, as hereinbefore quoted, Tac-an recognized that the killing should be
taken into account to increase the penalty to death because of the explicit
provision of Presidential Decree No. 1866.
In People vs. Simon, ante, we traced the legal history of crimes punished
under special laws, from the time they were divided by a seemingly
impermeable membrane, because of their American origin and formulation,
from felonies under the Revised Penal Code, which are of Spanish vintage.
We explained how the legal development of adopting the scheme of
penalties in the Revised Penal Code and applying them to those punished
by special laws, markedly starting with subversion in Republic Act No.
1700, resulted in the consequent selective applicability of some provisions
of the Code to special laws, absent an express or implicit prohibition
against such vicarious application. There is decidedly no insuperable
obstacle now to the application of the doctrine of absorption to offenses
provided for or contemplated in Presidential Decree No. 1866.
4. Nor should we hold a "judicial prejudice" from the fact that the two forms
of illegal possession of firearms in Presidential Decree No. 1866 are mala
prohibita. On this score, I believe it is time to disabuse our minds of some
superannuated concepts of the difference between mala in se and mala
prohibita. I find in these cases a felicitous occasion to point out this
misperception thereon since even now there are instances of incorrect
assumptions creeping into some of our decisions that if the crime is
punished by the Revised Penal Code, it is necessarily a malum in se and,
if provided for by a special law, it is a malum prohibitum.
It was from hornbook lore that we absorbed the distinctions given by text
writers, claiming that: (1) mala in se require criminal intent on the part of
the offender; in mala prohibita, the mere commission of the prohibited act,
4regardless of intent, is sufficient; and (2) mala in se refer to felonies in the
Revised Penal Code, while mala prohibita are offenses punished under
special laws.
The first distinction is still substantially correct, but the second is not
accurate. In fact, even in the Revised Penal Code there are felonies which
are actually and essentially mala prohibita. To illustrate, in time of war, and
regardless of his intent, a person who shall have correspondence with a
hostile country or territory occupied by enemy troops shall be punished
therefor. 19 An accountable public officer who voluntarily fails to issue the
required receipt for any sum of money officially collected by him,
regardless of his intent, is liable for illegal exaction. 20Unauthorized
possession of picklocks or similar tools, regardless of the possessor's
intent, is punishable as such illegal possession. 21 These are felonies under
the Revised Penal Code but criminal intent is not required therein.
On the other hand, I need not mention anymore that there are now in our
statutes so many offense punished under special laws but wherein criminal
intent is required as an element, and which offenses are accordingly mala
in se although they are not felonies provided for in the Code.
IV
1. From the foregoing discussion, I regret that I cannot agree with the
rationalization of the majority that two separate penalties must be imposed
on the same accused because he is supposed to have committed two
separate offenses of (1) illegal possession with murder, and (2) the same
murder per se. The unusual justification is that in the first offense, the
murder is not considered as a separate offense but only to increase the
penalty for the illegal possession, and in the second offense, that same
murder shall now be considered as a separate offense in itself. To make
this theory palatable, the example is given that if the murder is committed
with an unlicensed firearm, the death penalty is imposable, whereas if it is
committed with a licensed firearm, the penalty shall only be reclusion
perpetua.
This concern is evidently due to the fact that Republic Act No. 7659, which
"reimposed" the death penalty for certain heinous crimes, does not include
the offense that we have termed as aggravated form of illegal possession
of firearms which is provided for in the second paragraph of Section 1,
Presidential Decree No. 1866. It approximates, therefore, an obsessive
desire to impose a higher penalty, even if thereby basic principles of
criminal law and the clear provisions of Presidential Decree No. 1866 are
to be disregarded. Should that intent to impose the present penalty for
murder, be subserved by charging that crime separately and then
prosecuting the offender again for using the firearm with which he
committed the same murder? And, will that objective be achieved if the
crime is homicide which has not been affected by Republic Act No. 7659
but will thereby also be subjected to the same double prosecution under
the reasoning of the majority?
It has always been my position that the death penalty was not "abolished"
by the 1987 Constitution, since I had some participation in formulating the
provision involved. It merely provides that the same shall not "be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it," 22 that is, authorizes its imposition. Meanwhile, all
laws which provided for the death penalty remained in force and were
maintained in the statute books despite that constitutional provision since it
did not by itself have the effect of amending or repealing them. Some of
those laws were later expressly repealed or amended by the President in
the exercise of her then legislative powers and, thereafter, some were
repealed or modified by Congress, which even added other heinous crimes
with capital penalties. However, other laws like Presidential Decree No.
1866, which were not thus repealed or amended, retain their present
provisions and effects, except that the death penalty provided by them
would in the meantime be reduced to reclusion perpetua. Parenthetically,
why should the laws concerned be deemed amended or repealed if the
death penalty provided for therein had already been "abolished" by the
Constitution?
Republic Act No. 7659 did not "reimpose" the death penalty on murder.
Article 248 of the Penal Code, which provided for the penalty of reclusion
temporal in its maximum period to death for that crime, was amended by
Republic Act No. 7659, merely to increase the penalty to reclusion
perpetua to death, but it remained in full force even during the interim
except for the fact that the penalty of death could not then be imposed.
That is why the title of Republic Act No. 7659 is "An act to Impose the
Death Penalty in Certain Heinous Crimes, Amending for that purpose, the
Revised Penal Code, . . . ." The same is true with respect to the
aggravated form of illegal possession of firearms, except that the
imposition of the death penalty thereunder is still proscribed.
2. Even if we were to indulge the majority in its thesis on the effects of
Republic Act No. 7659 on Presidential Decree No. 1866, that is, that by the
non-inclusion in the former of the aggravated form of illegal possession
with murder the death penalty cannot be imposed for the murder, that fact
does not warrant and cannot justify the recourse it has adopted as a
judicial dictum. The second paragraph of the aforestated Section 1
expressly and unequivocally provides for such illegal possession and
resultant killing as a single integrated offense which is punished as such.
The majority not only created two offenses by dividing a single offense into
two but, worse, it resorted to the unprecedented and invalid act of treating
the original offense as a single integrated crime and then creating another
offense by using a component crime which is also an element of the
former.
It would already have been a clear case of judicial legislation if the illegal
possession with murder punished with a single penalty had been divided
into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative
powers for this Court to now, as it has done, treat that single offense as
specifically described by the law and impose reclusion perpetua therefor
(since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to
be able to impose the death sentence. For indeed, on this score, it is
beyond cavil that in the aggravated form of illegal possession, the
consequential murder (or homicide) is an integrated element or integral
component since without the accompanying death, the crime would merely
be simple illegal possession of a firearm under the first paragraph of
Section 1.
3. The fact that the aggravated form of illegal possession with murder was
not included in Republic Act No. 7659 is a matter for Congress, and not for
this Court, to remedy. A legislative terrain with gaps of omission in the
statute is not terra incognita to the courts, familiar as we are with instances
thereof. The legislature may have committed such omissions in the law for
reasons of its own or through unintended oversight but, unless judicial
remedy is constitutionally permissible, and in the cases at bar it is not, the
courts must await the legislative remedy of amendment or repeal of that
law.
For illustration, we can just again refer to the impasse earlier discussed
regarding the logically absurd penalties for kidnapping in Article 267, in
relation to forcible abduction of a woman under Article 342 and kidnapping
for
slavery in Article 272, all of the Revised Penal Code. A reading of Republic
Act No. 18 23 and Republic Act No. 1084 24 readily reveals that it was the
purpose of Congress by corresponding amendment of the other related
provisions of the Code, to put all forms of kidnapping and serious illegal
detention in Article 267. Yet, in the process, that objective was not fully
subserved by the two amendatory laws since forcible abduction of a
woman, which necessarily involves her kidnapping and detention, as well
as kidnapping for the purpose of enslaving the victim, were overlooked and
not included in the provisions of Article 267. 25
These instances are presented to project the discrepancies in what should
be the appropriate penalties for the aforesaid offenses involved because of
their omission by Congress in the logical taxonomy of crimes. Yet, the
Judiciary stands bound by the aforementioned state of the law on the
matter, and has no attempted to exercise the power reserved for legislative
amendment to suit its perceptions on what the penalties should be for
forcible abduction and slavery. Similarly, the disposition in the cases at bar
is grounded on the omission or non-inclusion of murder through the use of
an illegally possessed firearm in the heinous crimes subject of Republic Act
No. 7659. But, instead of respecting the legislative formulation, the majority
has contrarily decided to disregard the clear import of Presidential Decree
No. 1866 and opted to impose two penalties for what it considers as two
offenses through a bifurcated interpretation.
4. Following that treatment, is the Court now prepared to adopt the same
procedure with regard to similar offenses punished under other decrees?
For example, Presidential Decree No. 532, 26 punishes highway robbery
with murder or homicide with the mandatory penalty of death. Since this
offense has not been included in Republic Act No. 7659 and the death
penalty cannot be imposed, shall this Court also follow the same procedure
of imposing the penalty of reclusion perpetua for the highway robbery with
murder (or homicide) under Presidential Decree No. 532, and then further
impose the death penalty for the same murder under Article 248 of the
Revised Penal Code?
Again, Presidential Decree No. 533 27 imposes the penalty of reclusion
perpetua to death if a person is killed as a result of cattle rustling. This
offense has not been included in Republic Act No. 7659, hence the penalty
can only be reclusion perpetua. By adopting the same rationale in the case
at bar, shall the Court then impose the penalty of reclusion perpetua for
cattle rustling pursuant to Presidential Decree No. 533 and then, if the
killing constitutes murder attended only by an aggravating circumstance,
should it then impose another penalty of death for the same murder under
Article 248 of the Code?
Still further, Presidential Decree No. 534 28 provides that if illegal fishing
with the use of explosives or noxious or poisonous substances results "in
the loss of human life, then the penalty shall be imprisonment from 20
years to life, or death." This offense is not provided for in Republic Act No.
7659, hence the death penalty cannot be imposed; but the killing could
conceivably constitute murder since the use of explosion or poison is a
qualifying circumstance. The inevitable question that must again be posed,
based on the theory adopted here by the majority, is whether or not the
illegal fishing with murder shall be punished with life imprisonment at most
under Presidential Decree No. 534, and then, if only an aggravating
circumstance is present therein, the accused must also be given another
penalty of death under Article 248 of the Code.
We can easily multiply what are clearly perceivable as the dangerous
consequences of the solution contrived by the majority of creating two
offenses and imposing two penalties. I have, however, chosen the
foregoing illustrations involving acts punished under both a presidential
decree and the Revised Penal Code, with murder as a common
denominator, to make my analogies as close as possible to that involving
Presidential Decree No. 1866 in these cases. In truth, the same
problematic situation could be raised and created against any composite
felony in the Code which is considered as a unitary offense and punished
by a single penalty, if the majority's novel theory of duality of offenses with
double penalties were to be applied thereto.
It is rather pointless to essay an unnecessary distinction between the
phrase "as a result or on the occasion of" which refers to the killing
committed in the course of violating Presidential Decrees Nos. 532, 533
and 534, and the killing "with the use" of an illegally possessed firearm
contemplated in Presidential Decree No. 1866. Incidentally, the equivalent
phrase used in the special complex crimes in Articles 294 and 297 of the
Code, in referring to the deaths caused by the malefactor, is "by reason or
on occasion of" the different stages of the robbery therein. But the common
denominator and identity among all the aforesaid composite crimes, for
purposes of the issue under consideration, is that there is a principal
offense, which is separately punishable, and an unlawful killing with a
direct nexus to or connection with that principal offense is also committed.
What is then the focus of the inquiry in the present case which applies with
equal force to the aforestated composite crimes is merely whether or
not, apart from and in addition to the penalty imposable on the offender if
he violates any of the foregoing decrees or commits robbery in any of its
stages and which penalty is increased precisely if accompanied by an
unlawful killing, he should be further and separately punished for such
homicidal or murderous taking of human life. The implacable question is
whether or not two separate penalties should be imposed on him for killing
the same victim since those decrees and the Code already provide a
single but increased penalty for the crimes therein if accompanied by an
unlawful killing and thereby constituting a composite crime. Whether the
death of the victim supervened as "a result or on the occasion," or "by
reason or on occasion," or "with the use" of the firearm or poisonous
substances availed of by the accused is im material even if liberally viewed
in the context of the mens rea as proposed by the majority.
5. Prescinding from the substantive aspect and shifting to the procedural
and constitutional view, I am also bothered by the impact of the majority
opinion upon the rule on double jeopardy. I am referring, of course, to
double jeopardy arising from prosecutions for the same offense under two
or more laws as contemplated in the Rules of Court, 29 and not to the
special situation under the Constitution 30 involving a prosecution for the
same act punished under a law and an ordinance, as clarified in People
vs. Relova, etc., et al. 31 In the first kind of double jeopardy for purposes of
this discussion, what is determinative is the identity of the offense, hence
the "same-evidence" test applies, that is, that the facts alleged and proven
in one charge would, based on the same evidence, suffice to support the
second charge, and vice-versa. 32 Accordingly, the citation by the majority
of People vs. Doriquez 33 is of no moment, since it refers to a single act
offending against two entirely distinct and unrelated provisions of law one
of which requires proof of an additional fact or element, hence different and
not identical offenses are involved.
In the cases now before us, it is difficult to assume that the evidence for
the murder in the first charge of aggravated illegal possession of firearm
with murder would be different from the evidence to be adduced in the
subsequent charge for murder alone. In the second charge, the illegal
possession is not in issue, except peripherally and inconsequentially since
it is not an element or modifying circumstance in the second charge, hence
the evidence therefor is immaterial. But, in both prosecutions, the evidence
on murder is essential, in the first charge because without it the crime is
only simple illegal possession, and, in the second charge, because murder
is the very subject of the prosecution. Assuming that all the other
requirements under Section 7, Rule 117 are present, can it be doubted that
double jeopardy is necessarily present and can be validly raised to bar the
second prosecution for murder? 34
In fact, we can extrapolate this constitutional and reglementary objection to
the cases of the other composite crimes for which a single penalty is
imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the
same offense of either estafa or falsification; or how the accused convicted
of robbery with homicide under Article 294 can be legally charged again
with either of the same component crimes of robbery or homicide; or how
the convict who was found guilty of rape with homicide under Article 335
can be duly haled before the court again to face charges of either the same
rape or homicide. Why, then, do we now sanction a second prosecution for
murder in the cases at bar since the very same offense was an
indispensable component for the other composite offense of illegal
possession of firearm with murder? Why would the objection of non bis in
idem as a bar to a second jeopardy lie in the preceding examples and not
apply to the cases now before us?
The majority comes up with the so-called "additional element" test to take
the issue out of the rule on double jeopardy, citing for that purpose Yap
vs. Lutero 35 and People vs. Relova, etc., et al. 36 These cases are not
actually in point since they are primarily concerned with the question of
double jeopardy where the same offense is punished by two statutes or
different sections of the same statute, as contrasted with double jeopardy
arising from the same act punished by a law and likewise by an ordinance,
as has earlier been explained. The distinction is not germane here since
there is no punitive ordinance involved in the case at bar. This proposition
of the majority, however, bears discussion.
I do not gainsay the validity of the "additional element test," if properly
understood and correctly applied. As I have written elsewhere, it is a
cardinal rule that the protection against double jeopardy may be invoked
only for identical offenses or where an offense necessarily includes or is
necessarily included in the other offense. However, it has also long been
held that a single act may offend against two or more entirely distinct and
unrelated provisions of law, and if one provision requires proof of an
additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar
prosecution under the other. 37 That is because the two offenses continue
to exist independently of each other, with their respective penalties
remaining unaffected by the commission of or penalty for the other offense.
This is illustrated by the considerations in the present rule that Batas
Pambansa Blg. 22, which punishes the mere issuance of bouncing checks,
is not a bar to another prosecution for estafa through the use of bouncing
checks under paragraph 2(d), Article 315 of the Revised Penal
Code. 38 The rationale therefor is that the issuance per se of a bouncing
check is ipso jure punishable under Batas Pambansa Blg. 22, but to be
punishable as estafa under the Code, the additional elements of deceit and
damage are required. Also, while the former offense requires the drawer's
knowledge of lack or insufficiency of funds in the drawee bank at the time
the check is issued, the aforesaid provision on estafa does not so require.
The penalty for the former is fixed by Section 1 of said law without regard
to the damage caused or even without such damage, whereas the penalty
for estafa through bouncing checks is determined by the damage to the
offended party. 39 Lastly, Section 5 of Batas Pambansa Blg. 22 provides
that prosecution thereunder "shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code."
These features are absent in the integrated offense of murder or homicide
with the use of an illegally possessed firearm. It is true that mere illegal
possession has a specific lower penalty in Presidential Decree No. 1866,
and murder or homicide have their own specific penalties in Articles 248
and 249 of the Code. However, the moment both erstwhile separate
offenses juridically unite, we have what for expediency has been called by
this Court an aggravated form of illegal possession of firearm punishable
by the two highest penalties of reclusion perpetua to death. We cannot
speak here, therefore, of the "additional element test" which presupposes
and requires that the two offenses remain distinct from each other, with the
discrete penalty for one being immune from that for the other. What,
instead, transpired in Presidential Decree No. 1866 is a unification or
merger in law of both offenses of illegal possession of firearm and murder
or homicide, with each of them becoming a component offense in a new
and different composite crime punished by another and gravely higher
penalty.
V
1. The apprehension was also aired in our deliberations that the ruling
in Barros may provide dishonest prosecutors with unfettered discretion to
charge parties who commit illegal possession of firearms in its aggravated
form not with the said offense but only with homicide or murder with one
qualifying circumstance, and without any generic aggravating
circumstance, so that by such strategy the accused would thereby get only
the minimum period of the penalty.
As long as we live in a world of men and not of angels, there will always be
that legitimate fear over the possible excesses of officialdom. There are,
however, a plenitude of remedies provided by law for such a contingency,
either criminal, civil or administrative in nature. In fact, if that act of the
public prosecutor amounts to a refusal to perform a specific duty imposed
on him by law, his nonfeasance could even be controlled by an action for
mandamus and he can be compelled to charge the proper offense in the
information. 40
2. Again, drawing from the experience in Deunida where only the
aggravated illegal possession charge proceeded while that for homicide
was withdrawn, then on the submission that no private interest had to be
protected therein, no private prosecutor could appear for the victim.
Indeed, it was stated in said case: "No private interest is therefore involved.
The civil liability arising from death may be the subject of a separate civil
action or impliedly instituted with the criminal action for murder or
homicide." The Court then ordered the deletion of the award of civil
liability ex delicto.
It is my stand that even under such circumstances, the trial court may
justifiedly assess and award the corresponding damages to the heirs of the
victim. This is not one of the so-called "victimless crimes" where, by the
very nature of the crime, no damages can possibly be sustained by a
private party, such as espionage, violation of neutrality, flight to enemy
country or crimes against popular representation. 41 Where the victim was
killed under the circumstances contemplated in Presidential Decree No.
1866, I see no reason why the case should be excepted from the
fundamental rule that every person criminally liable is civilly liable. 42 Thus,
while the crime of rebellion is directed against the Government, yet in the
rebellion cases decided by this Court, corresponding awards for civil
damages were invariably granted so long as the offense which caused the
damage was proved and the victim and the malefactor or the property
involved were duly identified by satisfactory evidence.
3. The advertence to People vs. De Gracia, et al., 43 the decision wherein
was penned by this writer, overlooks or fails to mention that the same was
decided under the aegis of the doctrines in the cases hereinbefore
enumerated, specifically the Tioson case, to which we then had to defer as
they constituted the prevailing rule, but which are now sought to be
revisited in the instant case in light of Barros.
The statement in De Gracia that "(i)t was a legal malapropism for the lower
court to interject the aforestated provision of the Revised Penal Code in
this prosecution for a crime under a special law," referred to the action of
the trial court in recommending executive clemency for the accused.
Although there are some contrary views on the matter, the writer held that
Article 5 of the Code does not apply to convictions under a special law
where such application, as earlier stated, is expressly or impliedly
prohibited. Said Article 5 expressly provides for the authority of the court to
recommend executive clemency "when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty." Since, at that time the legal interplay between Presidential Decree
No. 1866 and the penalties "borrowed" for it from the Revised Penal Code
was still amorphous, this writer had to make those pronouncements in said
case, but, precisely, the same are now being reexamined in the present
cases.
I am aware that I have raised a number of what may appear as
discomposing views but these should provoke a more thorough
reexamination of the issues in these cases. On the other hand, I
apprehend that the decision handed down herein may have opened a
Pandora's box of legal curiosities and the swarm thus released will in due
time return to the Court to roost. I can only hope that the Court's mavens of
penal law who are responsible for the majority opinion here can fortify the
same to meet the diverse and adverse reactions that it will predictably
create.
On the foregoing premises, I respectfully but vigorously register my dissent
on the points indicated and for the reasons advanced therefor.
Narvasa, C.J., Romero, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Separate Opinions
HERMOSISIMA, JR., J.: concurring
Murder, most foul for betraying a depraved heart, is the inordinate killing of
a human being, unlawfully and with premeditated malice, wilfully,
deliberately, a felony described in and penalized under Article 248 of the
Revised Penal Code.
On the other hand, the unlawful possession of an unlicensed firearm, that
artifice consisting essentially of a straight tube to propel a shot, shell or
bullet by the explosion of gunpowder, is penalized as the offense of Illegal
Possession of Unlicensed Firearm by Presidential Decree No. 1866 of
martial law vintage.
Against accused-appellant Daniel Quijada y Circulado were filed the two
aforestated cases: Murder, Criminal Case No. 8178 and Illegal Possession
of an Unlicensed Firearm, Criminal Case No. 8179 "which firearm was
carried by the said accused outside of his residence and was used by him
in committing the crime of murder" in violation of paragraph 2, Section 1, of
Presidential Decree (P.D.) No. 1866. After a joint trial, the trial court
convicted accused-appellant in both cases and sentenced him to suffer the
penalty of Reclusion Perpetua for the crime of Murder and imprisonment a
period of Seventeen (17) Years, Four (4) Months and One (1) Day, as
minimum, to Twenty (20) Years and One (1) Day, as maximum, for the
offense of Qualified Illegal Possession of Unlicensed Firearm penalized
under the aforecited P.D. No. 1866.
There is no question that, as found by the majority, the crime of Murder and
the offense of Illegal Possession of Firearm had been established by
evidence beyond the shadow of doubt.
While the majority affirms the twin conviction of the accused-appellant in
both Criminal Case No. 8178 for Murder and Criminal Case No. 8179 for
Illegal Possession of an Unlicensed Firearm, the minority asserts the
dissenting opinion that, as in People vs. Barros, 1 accused-appellant may
only be convicted of the offense of Illegal Possession of Unlicensed
Firearm in its aggravated form, inferring that the crime of Murder has been
absorbed by that offense or rather that the two (2) crimes may be said to
have been complexed with each other.
While the teleological debate on whether criminal punishment is justified as
retribution or as reformation continually rages, hardly disputable is the
static view and unchanged reality that the primordial justification for
punishing any man is that he has broken the law. While in Anglo-American
jurisdictions, there exist what are known as common law offenses, in our
jurisdiction, no act is a crime unless it is made so by statute. 2 Every law
enacted by the legislature for the restraint and punishment of crimes and
for the preservation of the public peace, health and morals comes within
the police power of the State. 3
The right of prosecution and punishment for a crime is one of the attributes
that by a natural law belongs to the sovereign power instinctively charged
by the common will of the members of society to look after, guard and
defend the interests of the community, the individual and social rights and
the liberties of every citizen and the guaranty of the exercise of his rights. 4
In the exercise of its right, duty and power to determine and define crimes
and their corresponding penalties, the lawmaking body is initially and
usually guided by the general condition of penal liability under the legal
maxim, "actus non facit reum, nisi mens sit rea," which, if freely translated,
means that "an act is not criminal unless the mind is criminal." On the basis
of this, which is commonly known as the mens rea doctrine, our Revised
Penal Code was enacted to largely penalize unlawful acts accompanied by
evil intent which are denominated en masse as crimes mala in se. The
paramount consideration here is the existence of a malicious intention
borne out by the concurrence of freedom, intelligence and intent which
altogether make up the "criminal mind" behind the resultant "criminal act".
It is not always, however, that the evil to society anent a criminal act
depends upon the state of mind of the offender. And no less valid, critical
and indispensable is the prerogative of the legislature, through special
enactments, to forbid the doing of a particular act and legislate the
commission of such act to be a crime, regardless of the intent of the doer.
In many crimes, made by statutory enactment, the intention of the person
who commits the crime is entirely immaterial. This is necessarily so. If it
were not, the statute as a deterrent influence would be substantially
worthless. It would be impossible of execution . In many cases the act
complained of is itself that which produces the pernicious effect which the
statute seeks to avoid. In those cases, the pernicious effect is produced
with precisely the same force and result whether the intention of the person
performing the act is good or bad . . . It is quite different from that large
class of crimes, made such by the common law or by statute, in which the
injurious effect upon the public depends upon the corrupt intention of the
person perpetrating the act. 5
In general, it may be said that there must be malus animus or a criminal
intent. But there is also a class of crimes known as crimes mala
prohibita which, on the broad grounds of public policy, criminalize certain
acts without the usual requisite proof of the intent of the actor to commit
the crime.
In the case of The State vs. McBrayer (98 N.C., 623) this court stated:
It is a mistaken notion that positive, willful intent to violate the criminal law
is an essential ingredient in every criminal offense, and that where there is
an absence of such intent there is no offense; this is especially true as to
statutory offenses. When the statute plainly forbids an act to be done, and
it is done by some person, the law implies conclusively the guilty intent,
although the offender was honestly mistaken as to the meaning of the law
he violates. When the language is plain and positive, and the offense is not
made to depend upon the positive, willful intent and purpose, nothing is left
to interpretation.
xxx xxx xxx
Care must be exercised in distinguishing the difference between the intent
to commit the crime and the intent to perpetrate the act The accused did
not consciously intend to commit a crime; but he did intend to commit an
act, and that is, by the very nature of things, the crime itself-intent and all.
The working of the law is such that the intent and the act are inseparable.
The act is the crime. 6
Indeed, to distinguish between crimes mala in se and mala prohibita by
simply pointing out that the former refer to felonies in the Revised Penal
Code while the latter are punished under special laws, does not amount to
much, for there are indeed felonies that are penalized regardless of the
felon's criminal intentions, and conversely, there are also special offenses
that require proof of criminal intent.
Whether or not in a given case the statute is to be construed as forbidding
the doing of an act and criminalizing the same without regard to the intent
of the perpetrator of the act, is to be determined by the court by
considering the subject matter of the prohibition as well as the language of
the statute, thereby ascertaining the intention of the lawmaker. The index of
whether or not a crime is malum prohibitum is not its form, that is, whether
or not it is found in the Revised Penal Code or in a special penal statute,
but the legislative intent that underlies its continuing existence as part of
the law of the land.
Considering the nature of the offense, the purpose to be accomplished, the
practical methods available for the enforcement of the law, and such other
matters as throw light upon the meaning of the language, the question in
interpreting a criminal statute is whether the intention of the legislature was
to make knowledge of the facts an essential element of the offense, or to
put upon everyone the burden of finding out whether his contemplated act
is prohibited, and of refraining from it if it is. 7
In this light, we have not just a few times precisely delineated the malum
prohibitum nature of P.D. No. 1866, which is a codification of the laws on
unlawful possession of unlicensed firearms, among others.
As has been aforesaid, in determining whether or not an offense is malum
prohibitum or not, the relevant inquiry must concern the legislative intent as
to the requirement of criminal intent or lack thereof. In this respect, the
discussion of Justice Regalado in People vs. De Gracia 8 is appropriate:
The first issue to be resolved is whether or not intent to possess is an
element of the offense punishable under Presidential Decree No. 1866
and, if so, whether appellant . . . did intend to illegally possess firearms and
ammunition
The rule is that ownership is not an essential element of illegal possession
of firearms and ammunition. . . .
But is the mere fact of physical or constructive possession sufficient to
convict a person for unlawful possession of firearms or must there be an
intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good faith and
absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit
the crime is not necessary. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but he did intend to commit
an act, and that act is, by the very nature of things, the crime itself. In the
first (intent to commit the crime), there must be criminal intent; in the
second (intent to perpetrate the act), it is enough that the prohibited act is
done freely and consciously.
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. 9
In its enactment, P.D. No. 1866 was undoubtedly intended as a substantial
measure in response to the perennial problem of law enforcement and
public order and safety, Thus, we always pointed out that P.D. No. 1866
was passed because of an upsurge of crimes vitally affecting public order
and safety due to the proliferation of illegally possessed and manufactured
firearms, which crimes have resulted in loss of human lives, damage to
property and destruction of valuable resources of the country. 10
The aforecited public policy concern justified the blanket prohibition in P.D.
No. 1866 against mere possession of unlicensed firearms, among others,
without regard to the criminal intent of the possessor. Indeed, what is being
punished is the illegal possession, among others, of unlicensed firearms.
What the decree does is to define the offense and provide for the penalty
that may be imposed, specifying the qualifying circumstances that would
aggravate the offense. There is no encroachment on the power of the court
to determine after due hearing whether the prosecution has proved beyond
reasonable doubt that the offense of illegal possession of firearms has
been committed and that the qualifying circumstances attached to its has
been established also beyond reasonable doubt as the Constitution and
judicial precedents require. 11
Insofar as material to the present case, what is penalized is the sole,
simple act of a person who shall, among others, "unlawfully possess any
firearm". The gravamen of the offense is the fact of possession of a firearm
without a license or authority for such possession. 12 It is only the offense of
Illegal Possession of Unlicensed Firearm that is, in the corporeal and
material sense, provided for and defined in Section 1 of P.D. No. 1866. The
penalty therefor, however, is another matter.
It is undisputed that P.D. No. 1866 was validly enacted in 1983 in the
exercise of legislative powers by then President Marcos under the 1973
Constitution, which powers inherently included the prerogative to prohibit
certain acts perceived by the lawmaker to be substantially prejudicial to the
public interest. Thus, Section 1 forbids the possession by any person of a
firearm for which he does mot have the proper license and/or authority. The
sole act forbidden, prohibited and thereby criminalized is the illegal
possession of an unlicensed firearm. That is all. However, while the offense
penalized is singular, the penalties for such offense are plural and are
distinguished from each other by certain circumstances which the
lawmaker considered to be valid reasons to impose penalties heavier than
the others. Thus, as a whole, the pertinent portion of said decree provides,
to wit:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
Be Used in the Manufacture of Firearms or Ammunition. The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with crimes of rebellion, insurrection, or subversion, the penalty
of death shall be imposed.
xxx xxx xxx 13
The circumstances (1) that homicide or murder is committed with the use
of an unlicensed firearm and (2) that the illegal possession of unlicensed
firearm is committed in furtherance of, or incident to, or in connection with
the crimes of rebellion, insurrection or subversion, only qualify or aggravate
the offense of Illegal Possession of Unlicensed Firearm for purposes of
increasing the penalty therefor. These circumstances do not create another
offense or a special kind of illegal possession or another form of illegal
possession. When either of such circumstances is attendant under the
premises of a case, such circumstance only authorizes and justifies the
imposition of a higher penalty. It only has the effect of upgrading the
penalty and not of supplying an additional, separate element of a new or
another offense. Thus, there is no such thing as a special complex crime of
illegal possession of unlicensed firearm used in homicide, 14 or murder for
that matter. Neither could we have conceived what we have been calling
the aggravated form of illegal possession 15 or qualified illegal
possession, 16 to be a separate, distinct and independent offense from
illegal possession without any qualifying circumstance. Even Justice
Regalado concedes in his Separate Opinion in People vs. Barros 17 that
"the nomenclature of aggravated illegal possession is used just for
expediency, in the same manner as that of 'qualified rape' under Article 335
when the sexual assault is attended by the circumstances therein which
result in increased penalties."
In People vs. Barros, 18 we were mainly concerned with the issue as to
whether or not, whenever a killing is effected with the use of an unlicensed
firearm, the malefactor should be punished separately for both offenses,
with the unlawful taking of life to be proceeded against under the
corresponding provision of the Revised Penal Code and the illegal
possession of the firearm under P.D. No. 1866. There, we decided that said
malefactor ought only to be punished for qualified illegal possession of
firearm essentially because the two crimes are not altogether separate or
disconnected from each other both in law and in fact and could thus be
viewed as a situation bordering close to or approximating the concept of
complex crime proper and/or as a situation where the graver offense (of
qualified illegal possession) can be said to have absorbed the lesser
offense (of homicide or murder) which constitutes the essential element
siring the so-called "capital offense of the aggravated form of illegal
possession".
There is no time more appropriate to re-examine the Barros ruling than
now, for to persist in it would result in an absurd situation that cannot be
justified even under the hallowed principle of stare decisis.
Merely that two crimes are not altogether separate or disconnected from
each other both in law and in fact, is of no moment. In the first place,
should they in law and in fact be altogether separate or disconnected from
each other to foreclose their absorption into or complexing with, each
other? In the second place, that very statement provides a basic
presumption and reality that must be fully understood insofar as its
implications and consequences are concerned. They are precisely two
crimes, and these two crimes are punished under two separate, distinct
and independent laws. Punishment is a corollary of lawbreaking by a
member of society whose law is broken. 19 In this case, there are two
separate laws involved, two separate crimes punished by two laws, and
two counts of breaking the law constituting two crimes for which two
separate penalties are provided. Concededly, accused-appellant performed
only one action which was made basis for two Informations each charging
a distinct offense. But it is also a well-established rule in this jurisdiction
that
a single act may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional fact or
element which the other does not, an acquittal or conviction or a dismissal
of the information under one does not bar prosecution under the other.
Phrased elsewise, where two different laws (or articles of the same code)
define two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the same facts,
if each crime involves some important act which is not an essential
element of the other. 20
Where there are, as in this case, two crimes punished by two distinct laws
enacted for absolutely different purposes, and both laws are clear and
unambiguous, and no absurdity or unreasonableness is evident from the
application of both, it is not the proper function of the court to change or
alter in any way the state of things thereunder. That it is desirable,
equitable, wise, humane or charitable to find a way to decrease the penalty
or avoid imposition of the penalties under the two laws, is not denied, but
at most we can only "legislate interstitially . . . confined from molar to
molecular motions" 21 and clear up ambiguities or fill in the gaps. Gaps in
our conscience and our personal convictions must be found and provided
some other legitimate channel for expression and realization.
The law on complex crime proper is not applicable here. One of the
reasons often cited in proscribing complexing a crime under the Revised
Penal Code and an offense under a special law is that the latter is not
punishable by a penalty divisible into periods. Now following our ruling
in People vs. Simon, 22 the suppletory effect of the Revised Penal Code
upon P.D. No. 1866 is now starkingly broadened because though it is a
special penal law, the penalties provided therein are actually taken from
the Revised Penal Code in their technical nomenclature, duration,
correlation and legal effects, such that the same treatment as that
respecting Revised Penal Code penalties may now be given to penalties
under certain special laws.
However, notwithstanding the import of our ruling in the said case
of People vs. Simon, it still cannot be said that there is no longer any
obstacle in complexing murder with qualified illegal possession because
the very essence and nature of each of these crimes remains unchanged
and unaffected. Murder, or for that matter, homicide, remains distinct from
the crime of Illegal Possession of Unlicensed Firearm where the firearm is
used in perpetrating the killing. The defendant in such cases committed
two different acts with two separate criminal intents, to wit, the desire to
take unlawfully the life of a person and the sheer violation of the law which
prohibits the possession of a firearm without the required permit. 23 In other
words, there is in this instant case a case of plurality of crimes where
accused-appellant performed one act which resulted in two different crimes
penalized under two separate laws which have distinct purposes and are
independent from each other.
Neither does the doctrine of absorption obtain in this case. For absorption
to take place under the circumstances thereof, there must be two
materially distinct and separate offenses involved murder and what has
been referred to as the capital offense of the aggravated form of illegal
possession of unlicensed firearm. As has been explained hereinabove,
however, the offense defined in Section 1 of P.D. No. 1866 is plainly, simply
illegal possession of unlicensed firearm. The circumstance of homicide or
murder only operates to upgrade the penalty for the offense of illegal
possession of unlicensed firearm and does not as it has not been intended
to, sire and penalize a second offense or the so-called capital offense of
the aggravated form of illegal possession of unlicensed firearm. The
offense of illegal possession, as such, in turn, cannot validly absorb murder
or homicide because the latter is not an element of the former. Nothing
more indubitably evidences the intent of the legislature to maintain the
integrity and effectivity of the penal provision for murder and homicide, on
the one hand, and of Section 1 of P.D. No. 1866, on the other, than the
very pertinent provision of said decree which neither created any special
complex crime nor amended nor repealed the provisions on murder or
homicide nor defined a separate offense of an aggravated form of illegal
possession.
We are not unaware of the fundamental legal principle that every doubt in
the construction of a criminal statute should be resolved in favor of any
person accused of a crime. To mete out a lesser penalty is certainly
favorable to an accused; such, however, presupposes the existence of
some doubt in the application of the law pertinent to his circumstances. In
the instant case, there is no ambiguity, ambivalence, confusion, doubt or
question respecting the applicable laws. The penalties provided for by the
Revised Penal Code for the crime of Murder and by P.D. No. 1866 for the
offense of Illegal Possession of Unlicensed Firearm are not under attack
And it could not also be said that the application of said laws and the
imposition of said penalties bring about an undeniable situation
characterized by such absurdity, unreasonableness, and socially, morally
or philosophically virulent consequences as to justify the utter disregard of
said laws and their substantive provisions regarding penalties. Certainly,
there must be a limit to what the court may do to remedy what it perceives
as a difficult but avoidable situation. The consequences of the application
of our valid, subsisting laws, after all, do not always have to satisfy our own
standards of what is just and fair.
Finally, with the enactment of Republic Act (R.A.) No. 7659 24 reimposing
the death penalty for certain heinous crimes, an anomalous situation may
merge in our midst if we apply Barros. Said Act enumerated particular
crimes under the Revised Penal Code and specific offenses under special
laws that shall henceforth contain provisions imposing the death penalty
under certain circumstances. One of the crimes enumerated thereunder is
Murder, which may now be punished by death. 25 The death penalty may
now also be meted out in, among others, the case of drug-related crimes
as provided for in the Dangerous Drugs Act of 1972 26 and the crimes
provided for in the Anti-Carnapping Act of 1972. 27
Of utmost significance is the fact that not included in the enumeration of
special offenses where the death penalty has been revived, is P.D. No.
1866. R.A. 7659 being a penal statute which must, as a rule, be strictly
construed against the State, the inescapable and inevitable conclusion is
that Congress, in enacting R.A. No. 7659, did not intend to revive the death
penalty provision found in the second and third paragraphs of Section 1 of
P.D. No. 1866.
The foregoing makes for a tremendous import. On the one hand, were we
to insist that murder may be complexed with or absorbed by illegal
possession of unlicensed firearm where said firearm is used in the
commission of murder or homicide, a person convicted for said offense
may only be punished with a penalty no higher than reclusion perpetua,
since R.A. No. 7659 did not revive the death penalty provision in Section 1
of P.D. No. 1866. On the other hand, a person who has used a licensed
firearm in committing murder may be punished with death if there were
sufficient aggravating circumstances attendant in the killing, since R.A. No.
7659 restored the death penalty for the crime of murder. No much deeper
analysis is needed to realize that an anomalous, absurd situation confronts
us where the use of an unlicensed firearm in killing is rewarded by a lesser
penalty. Herein lies real injustice. And we cannot scale down this
resounding message which indifference on our part would impart: if "would
be" criminals were to kill, they ought to kill with unlicensed firearms so that
they will fall within the purview of P.D. No. 1866 with respect to which the
death penalty has not been restored and not within the provisions of the
Revised Penal Code for murder, for then depending upon the nature and
number of the aggravating circumstances that may attend such crimes,
they face the possibility of being sentenced to death, an eventuality that
could never be under P.D. No. 1866.
Certainly, we cannot close our eyes to this absurd situation, and it will be
irresponsible of us to allow the absurdity to persist. We should not
stubbornly cling to the illusion that murder and illegal possession of
unlicensed firearm used in murder may be complexed with each other or
absorbed into each other. Anyway, they are not so disconnected from each
other that doing so would translate into a lower penalty. For us to cling to
such an illusion would be tantamount a complete disregard of legal
concepts and principles in the realm of crime and punishment that has
remain good, sound, valid law.
WHEREFORE, the conviction of the accused by the court a quo of the two
(2) crimes aforesaid, that is, for Murder and Illegal Possession of
Unlicensed Firearm, should be, as it is, affirmed.
REGALADO, J.: concurring and dissenting
I concur in the majority opinion only insofar as it holds accused-appellant
Daniel Quijada y Circulado guilty of the crime of murder with the use of an
illegally possessed firearm and punishes him therefor. I confess, however,
that I cannot in conscience reconcile myself with the unfortunate doctrine
first announced in People vs. Tac-an, 1 and now reiterated by the majority,
that said appellant should be twice penalized for two supposedly distinct
offenses involving (1) the murder of the victim with an illegally possessed
firearm, under Presidential Decree No. 1866 and (2) the same murder of
that same victim, this time under Article 248 of the Revised Penal Code.
I have heretofore rejected this very same dual verdicts of conviction in my
concurring opinion in People vs. Barros, 2 which found favor with all my
brethren in the Second Division, including Chief Justice Andres R. Narvasa
acting as the ponente of the decision in that case and in his capacity as the
Chairman of that Division. Indeed, I feel quite strongly that through the play
on words that illegal possession of firearm used in a killing is punishable
under Presidential Decree No. 1866, while the same killing with the same
illegally possessed firearm is separately punished under Article 248 of the
Revised Penal Code, we have been beguiled by the semantical tyranny of
shifting emphases.
I endeavored to analyze what I considered the error of that approach and
thereby expose the speciously camouflaged theory espoused in Tac-
an which I believe, and still do, constitutes an affront on doctrinal concepts
of penal law and assails even the ordinary notions of common sense. To
avoid excursive reading, I quote my humble explanation
in Barros somewhat at length:
Under the dispositions heretofore made by the Court involving the crimes
of homicide or murder through the use of an illegally possessed firearm,
and the same is true with the case at bar, the following queries may be
posed:
1. Should the crimes of homicide or murder, which are the end results, be
punished separately from and in addition to the liability for illegal
possession of the firearm as the instrument or the means employed?
2. On the other hand, should not the principal sole offense be the
aggravated form of illegal possession of a firearm under the second
paragraph of Section 1 of Presidential Decree No. 1866, with the homicide
or murder being absorbed therein as an integral element of the crime in its
aggravated form?
3. If either homicide or murder and illegal possession of firearm are so
charged in one and the same information, should they be considered and
punished as a single offense of homicide or murder with the use of an
unlicensed firearm, or as a case of aggravated illegal possession of firearm
resulting in homicide or murder, with the death penalty to be imposed in
either case?
4. If homicide or murder is charged in a separate information while
aggravated illegal possession of firearm is made the subject of a separate
indictment filed simultaneously with or prior or subsequent to the former,
but with the respective informations on the killing and the illegal possession
mutually alleging facts regarding the other offense as an attendant
circumstance, should the accused be held liable for two distinct crimes
regardless of whether the cases are jointly tried by the same court or
separately by the two courts where the informations were independently
filed?
On the first question, it is true that from the theoretical concept of the
requisite mens rea, the killing as the result of the criminal design arose
from a specific criminal intent, that is, the animus interficendi or intent to
kill. The illegal possession of the firearm requires a discrete and specific
intent to possess the weapon, which is the animus possidendi, coupled
with the physical possession thereof.
It would, therefore, appear at first blush that the two offenses having arisen
from different criminal intents, this would be, under the philosophical bases
for concurso de delitos, a case of material or real plurality under which
different crimes have been committed and for each of which a separate
criminal liability attaches. The flaw in this approach, however, is that
although two crimes have been committed, they are not altogether
separate or disconnected from each other both in law and in fact. The
illegally possessed firearm having been the weapon used in the killing, the
former was at least the necessary, although not an indispensable, means
to commit the other.
The situation thus borders closer to the concept of a complex crime proper,
technically known as a delito complejo, rather than to the postulate of two
separate crimes. It is true that former doctrines were to the effect that there
can be no complex crime where one of the component offenses is
punished by a special law. The rationale therefore was that in a complex
crime, Article 48 of the Code prescribes that the penalty shall be for the
graver offense to be applied in its maximum period. Since, at that time, the
penalties for crimes provided in special laws were not divided into periods,
it would be impossible to apply Article 48.
That ratiocination no longer applies now, specifically with respect to the
ease at bar, since the penalties in Presidential Decree No. 1866 were all
taken from the scale of penalties in the Code. The only possible difficulty in
this novatory approach would be on the first kind of complex crime, that is,
the delito compuesto since it exists "(w)hen a single act constitutes two or
more grave or less grave felonies." The use of that particular term for the
delicts committed bars the application of that form of complex crime to
offenses under Presidential Decree No. 1866, since "felonies" are offenses
provided and defined in the Code.
That objection would not, however, apply to a delito complejo since it is
sufficient therefor that "an offense is a necessary means for committing the
other." By these considerations, however, the writer does not mean to
imply that a killing through the use of an illegally-possessed firearm is
a delito complejo under Article 48 of the Code. As was carefully stated,
such an offense merely borders closer to or approximates the concept of
a delito complejo, but it thereby emphasizes the thesis that the offenses
should not be considered as separate crimes to be individually punished
under the principle of material plurality.
This premise accordingly brings up the second query as to whether or not
the crime should properly be the aggravated illegal possession of an
unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm
punished by death under the second paragraph of Section 1, Presidential
Decree No. 1866, and it is on this point that the writer dissents from the
holding which would impose a separate penalty for the homicide in addition
to that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to
the accused, the Court has correctly held that to be the simple possession
punished with reclusion temporal in its maximum period to reclusion
perpetua in the first paragraph of Section 1. Where, complementarily, the
unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the
graver offense of aggravated illegal possession. In other words, the
homicide or murder constitutes the essential element for integrating into
existence the capital offense of the aggravated form of illegal possession
of a firearm. Legally, therefore, it would be illogical and unjustifiable to use
the very same offenses of homicide or murder as integral elements of and
to create the said capital offense, and then treat the former all over again
as independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive
standpoint, virtually of the nature of the so-called "special complex crimes,"
which should more appropriately be called composite crimes, punished in
Article 294, Article 297 and Article 335. They are neither of the same legal
basis as nor subject to the rules on complex crimes in Article 48, since they
do not consist of a single act giving rise to two or more grave or less grave
felonies nor do they involve an offense being a necessary means to
commit another. However, just like the regular complex crimes and the
present case of aggravated illegal possession of firearms, only a single
penalty is imposed for each of such composite crimes although composed
of two or more offenses.
On the other hand, even if two felonies would otherwise have been
covered by the conceptual definition of a complex crime under Article 48,
but the Code imposes a single definite penalty therefor, it cannot also be
punished as a complex crime, much less as separate offenses, but with
only the single penalty prescribed by law. Thus, even where a single act
results in two less grave felonies of serious physical injuries and serious
slander by deed, the offense will not be punished as a delito
compuesto under Article 48 but as less serious physical injuries with
ignominy under the second paragraph of Article 265. (People vs. Lasala, L-
12141, January 30, 1962, 4 SCRA 61.) The serious slander by deed is
integrated into and produces a graver offense, and the former is no longer
separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as
well as the discussion on complex and composite crimes, is that when an
offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority
would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is
more of a question of classification for purpose of the other provisions of
the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included
in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually sourced from
the very provisions of Presidential Decree No. 1866 which sought to
"consolidate, codify and integrate" the various laws and presidential
decrees to harmonize their provisions" which "must be updated and
revised in order to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlying the provisions
of the Anti-Carnapping Act of 1972 (R.A. No. 6539, August 26, 1972),
wherein the principal crime to be charged is still carnapping, although the
penalty therefore is increased when the owner, driver or occupant of the
carnapped vehicle is killed. The same situation, with escalating punitive
provisions when attended by a killing, are found in the Anti-Piracy and Anti-
Highway Robbery Law of 1974 (P.D. No. 532, August 8, 1974) and the Anti-
Cattle Rustling Law of 1974 (P.D. No. 533, August 8, 1974), wherein the
principal crimes still are piracy, highway robbery and cattle rustling. Also, in
the matter of destructive arson (Article 320, Revised Penal Code, as last
amended by R.A. No. 7659), the principal offense remains as
arson although the same becomes a capital offense when inter alia, death
results as a consequence of the commission of any of the acts punished
under said article of the Code.
In the present case, the academic value of specifying whether it is a case
of illegal possession of firearm resulting in homicide or murder, or,
conversely, homicide or murder through the illegal possession and use of
an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken
either way, the penalty for aggravated illegal possession of a firearm is the
single indivisible penalty of death, in which case the provision on recidivism
would not apply. If, however, the illegal possession is not established but
either homicide or murder is proved, then the matter of recidivism may
have some significance in the sense that, for purposes thereof, the
accused was convicted of a crime against persons and he becomes a
recidivist upon conviction, or another crime under the same title of the
Code.
Lastly, on the matter of the offense or offenses to be considered and the
penalty to be imposed when the unlawful killing and the illegal possession
are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render
a joint decision thereon, imposing a single penalty for aggravated illegal
possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either
simple illegal possession, homicide or murder per se. The same procedural
rule and substantive disposition should be adopted if one information for
each offense was drawn up and these informations were individually
assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession
separately from the homicide or murder could be susceptible of abuse
since it entails undue concentration of prosecutorial powers and discretion.
Prefatorily, the fact that the killing was committed with a firearm will
necessarily be known to the police or prosecutorial agencies, the only
probable problem being the determination and obtention of evidence to
show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without
alleging therein that the same was committed by means of an unlicensed
firearm, the case would not fall under Presidential Decree No. 1866. Even
if the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use
of a firearm by itself, even if proved in that case, would not affect the
accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the
prosecution intending to file thereafter the charge for homicide or murder
but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other
hand, the separate and subsequent prosecution for homicide or murder
prospers, the objective of Presidential Decree No. 1866 cannot be
achieved since the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the
proposition that the real offense committed by the accused, and for which
sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible
problems projected herein may be minimized or obviated if both offenses
involved are charged in only one information or that the trial thereof, if
separately charged, be invariably consolidated for joint decision.
Conjointly, this is the course necessarily indicated since only a single
composite crime is actually involved and it is palpable error to deal
therewith and dispose thereof by segregated parts in piecemeal fashion.
(emphasis supplied, with some footnotes in the original opinion being
incorporated in the text by way of documentation.)
With appropriate respect for the opinions en contra, I take this opportunity
not only to elaborate upon and further clarify my aforequoted views
in Barros but, hopefully, to also cleanse the expanding framework of our
criminal law from ideas which have not grown apace with conceptual
changes over time.
My position in Barros is challenged as being a novel theory which sets
aside the doctrine followed in some cases previously decided by the Court
and the rationale on which they were based. That is understandable, since
the inertia of time has always been the obstacle to the virtues of change.
That mind-set appears to predominate in the action of the majority in the
instant cases.
However, it is precisely for that reason that we are now reviewing those
doctrines, as we have done in a number of cases before, instead of taking
a stance of infallibility. And, if it does turn out that we are mistaken, then in
law and in conscience we must act accordingly, for, as has been said, the
beauty of a mistake is that it can be corrected; the tragedy is that it call be
perpetuated.
I which is only malum prohibitum. Hence, it was urged during the
1. It is obvious that our present problem had its origin in the aforecited
case of People vs. Tac-an where the controversial theory was first laid
down that since one offense (illegal possession of an unlicensed firearm) is
penalized under a special statute while the other (murder) is punished
under the Revised Penal Code, they can be validly prosecuted and
punished separately. The trial court imposed the death penalty in each of
said cases, the offenses having been committed in 1984 with the decision
rendered therein in 1986, but this Court modified those sentences to two
penalties of reclusion perpetua because of the supervenience of the 1987
Constitution. Significantly, it was explicitly accepted therein that "(a)lthough
the circumstance that human life was destroyed with the use of an
unlicensed firearm is not an aggravating circumstance . . . it may still be
taken into account to increase the penalty to death (reclusion
perpetua under the 1987 Constitution) because of the explicit provision of
P.D. No. 1866."
2. That mother case of Tac-an gave birth to a progeny of identically-based
decisions, the first being People vs. Tioson 3 where, in addition to the
rationale that the offenses were punished under separate laws, the theory
of separate penalties was further sought to be justified thus: "It does not,
however, follow that the homicide or murder is absorbed in the offense;
otherwise an anomalous absurdity results whereby a more serious crime
defined and penalized in the Revised Penal Code is absorbed by a
statutory offense, which is just a malum prohibitum."
3. Next came People vs. Caling 4 which is notable for lucidly laying down
the distinction between what it categorized for easy reference as
the simple and aggravated forms of illegal possession of unlicensed
firearms, although it adhered to the theory of separate offenses where a
killing is involved but hewing only to the reason that this is because these
offenses are punished by separate laws, as theorized in Tac-an. In Caling,
however, the accused was acquitted and no application of penalties was
actually made.
4. People vs. Jumamoys 5 sustained separate convictions for murder and
the aggravated form of illegal possession of an unlicensed firearm on the
same rationale as Tioson, with an added advertence to People
vs. Doriguez 6 that such separate convictions will theoretically not run afoul
of the prohibition against double jeopardy.
5. This was followed by People vs. Deunida 7 where, on two charges for
murder and aggravated illegal possession of firearms, the accused was
convicted only of the latter offense since the prosecution withdrew the
charge for murder. The Court, in this case, considered the withdrawal of
the indictment for murder as erroneous on the bases of the doctrines
in Tac-an, Caling and Tioson.
6. In People vs. Somooc, 8 the accused who committed homicide with the
use of an illegally possessed unlicensed firearm was charged with and
convicted of the aggravated form of illegal possession and punished
by reclusion perpetua since the offense was committed in 1988. The Court
called attention to the doctrine and ratiocination in Caling.
II
It will, therefore, be observed that "the settled ruling in the aforementioned
cases" is actually a skein drawn from the same single thread originally
introduced by Tac-an and stitched into the jurisprudential fabric with some
permutative designs. It is not necessarily "unfortunate if we should
suddenly depart therefrom" where the benefit of a second view and the
grace of hindsight dictate such a course of action.
The Court will recall the series of cases, when the proscription against the
imposition of the death penalty was still upon us, wherein we initially
provided in our decisions different and inconsistent rules on the proper
periods of the penalty for murder, at that time punishable by reclusion
temporal in its maximum period to death. We eventually settled
on reclusion perpetua as the medium period. 9 Of more recent memory was
the spate of conflicting positions on the penalty for illegal possession and
traffic in dangerous drugs, and the amendments brought about by Republic
Act No. 7659, until we arrived at a solution in People vs. Simon. 10 Nobody
was heard to complain that we were running afoul of the doctrine of stare
decisis, as now appears to be the stance of the majority.
Indeed, if hard cases make bad law, bad law also makes hard cases,
whether what is involved is statutory or case law. Of course, in discharging
our duty of judicial interpretation, there may be not only merit but also
facility, if not the expediency of the slothful path of least resistance, in just
adopting the rule of uniformity on the bases of past decision. But, equally
as commendable as the doctrine of stare decisis itself, is the well-known
and ancient wisdom in the reminder that such doctrine does not mean blind
adherence to precedents.
III
Obviously, because of the reasoning in Tac-an, the majority opinion
emphasizes that in imposing a single penalty of reclusion perpetua for the
qualified violation of Presidential Decree No. 1866 and treating murder
merely as an element of the statutory offense, an incongruous situation
results wherein a more serious crime under the Revised Penal Code,
which is malum in se, is absorbed by a lesser offense under a special law
deliberations that we should not adopt a novel doctrine which rests on a
shaky foundation.
1. The basic premise of this argument is definitely off-tangent. The penalty
for the aggravated illegal possession of unlicensed firearm, in the
terminology of Caling, is the single indivisible penalty of death which would
be imposable regardless of the generic modifying circumstances 11 or of
whether the killing constitutes murder or homicide. The penalty under
Presidential Decree No. 1866 is, therefore, decidedly higher than that for
murder, although it is now reclusion perpetua to death in Republic Act No.
7659, and, being thereby covered by Article 63 of the Code, will be
reduced to reclusion perpetua in the absence of aggravating
circumstances. Of course, it does not even have to be pointed out that the
penalty for homicide is only reclusion temporal in its entire extent.
2. Even assuming arguendo that the penalty for the aforesaid taking of
human life could be higher than the penalty for aggravated illegal
possession which would absorb the former, that is not an unheard-of or
earthshaking legal tableau. The objections to the doctrine of absorption
here is reminiscent of what Judge Agustin P. Montesa reportedly stated, as
quoted in People vs. Hernandez, et al., 12 that: "The theory of absorption
tenaciously adhered to by the defense to the effect that rebellion absorbs
all these more serious offenses is preposterous, to say the least,
considering that it is both physically and metaphysically impossible for a
smaller unit or entity to absorb a bigger one."
Unfortunately, that astute observation was rejected by this Court, and
advisedly so, since we are bound by legal precepts and not by physical or
metaphysical laws. It is now an accepted dictum that the life of the law is
not necessarily logic but experience. These considerations must have
prompted the Court to also defend the doctrine of absorption in treason
cases, 13 holding that more serious offenses committed for treasonous
purposes are absorbed in the former, with the piquant observation
in Labra that "(t)he factual complexity of the crime of treason does not
endow it with the functional ability of worm multiplication or amoeba
reproduction."
In the scheme of penalties under the Revised Penal Code, it is accepted
that a lesser offense may absorb a graver offense. As already stated, the
lesser offense of rebellion which is punished by prision mayor absorbs the
graver offense of murder which is now punished by reclusion perpetua to
death, and all other offenses even with higher penalties if committed in
furtherance of rebellion. 14 On a lower level of comparison and closer to the
case at bar, the lesser offense of forcible abduction which is punished
by reclusion temporal 15 absorbs the graver offense of illegal detention of a
woman which is punished by reclusion perpetua to death. 16 The lower
offense of slavery involving the kidnapping of a person which is punished
by prision mayor 17 absorbs the higher offense of kidnapping which is
punished by reclusion perpetua to death. 18
3. Neither should the fact that the aggravated form of illegal possession of
an unlicensed firearm is a malum prohibitum punished by a special law
inveigh against the doctrine of absorption we have adopted in Barros. In
fact, as hereinbefore quoted, Tac-an recognized that the killing should be
taken into account to increase the penalty to death because of the explicit
provision of Presidential Decree No. 1866.
In People vs. Simon, ante, we traced the legal history of crimes punished
under special laws, from the time they were divided by a seemingly
impermeable membrane, because of their American origin and formulation,
from felonies under the Revised Penal Code, which are of Spanish vintage.
We explained how the legal development of adopting the scheme of
penalties in the Revised Penal Code and applying them to those punished
by special laws, markedly starting with subversion in Republic Act No.
1700, resulted in the consequent selective applicability of some provisions
of the Code to special laws, absent an express or implicit prohibition
against such vicarious application. There is decidedly no insuperable
obstacle now to the application of the doctrine of absorption to offenses
provided for or contemplated in Presidential Decree No. 1866.
4. Nor should we hold a "judicial prejudice" from the fact that the two forms
of illegal possession of firearms in Presidential Decree No. 1866 are mala
prohibita. On this score, I believe it is time to disabuse our minds of some
superannuated concepts of the difference between mala in se and mala
prohibita. I find in these cases a felicitous occasion to point out this
misperception thereon since even now there are instances of incorrect
assumptions creeping into some of our decisions that if the crime is
punished by the Revised Penal Code, it is necessarily a malum in se and,
if provided for by a special law, it is a malum prohibitum.
It was from hornbook lore that we absorbed the distinctions given by text
writers, claiming that: (1) mala in se require criminal intent on the part of
the offender; in mala prohibita, the mere commission of the prohibited act,
4regardless of intent, is sufficient; and (2) mala in se refer to felonies in the
Revised Penal Code, while mala prohibita are offenses punished under
special laws.
The first distinction is still substantially correct, but the second is not
accurate. In fact, even in the Revised Penal Code there are felonies which
are actually and essentially mala prohibita. To illustrate, in time of war, and
regardless of his intent, a person who shall have correspondence with a
hostile country or territory occupied by enemy troops shall be punished
therefor. 19 An accountable public officer who voluntarily fails to issue the
required receipt for any sum of money officially collected by him,
regardless of his intent, is liable for illegal exaction. 20Unauthorized
possession of picklocks or similar tools, regardless of the possessor's
intent, is punishable as such illegal possession. 21 These are felonies under
the Revised Penal Code but criminal intent is not required therein.
On the other hand, I need not mention anymore that there are now in our
statutes so many offense punished under special laws but wherein criminal
intent is required as an element, and which offenses are accordingly mala
in se although they are not felonies provided for in the Code.
IV
1. From the foregoing discussion, I regret that I cannot agree with the
rationalization of the majority that two separate penalties must be imposed
on the same accused because he is supposed to have committed two
separate offenses of (1) illegal possession with murder, and (2) the same
murder per se. The unusual justification is that in the first offense, the
murder is not considered as a separate offense but only to increase the
penalty for the illegal possession, and in the second offense, that same
murder shall now be considered as a separate offense in itself. To make
this theory palatable, the example is given that if the murder is committed
with an unlicensed firearm, the death penalty is imposable, whereas if it is
committed with a licensed firearm, the penalty shall only be reclusion
perpetua.
This concern is evidently due to the fact that Republic Act No. 7659, which
"reimposed" the death penalty for certain heinous crimes, does not include
the offense that we have termed as aggravated form of illegal possession
of firearms which is provided for in the second paragraph of Section 1,
Presidential Decree No. 1866. It approximates, therefore, an obsessive
desire to impose a higher penalty, even if thereby basic principles of
criminal law and the clear provisions of Presidential Decree No. 1866 are
to be disregarded. Should that intent to impose the present penalty for
murder, be subserved by charging that crime separately and then
prosecuting the offender again for using the firearm with which he
committed the same murder? And, will that objective be achieved if the
crime is homicide which has not been affected by Republic Act No. 7659
but will thereby also be subjected to the same double prosecution under
the reasoning of the majority?
It has always been my position that the death penalty was not "abolished"
by the 1987 Constitution, since I had some participation in formulating the
provision involved. It merely provides that the same shall not "be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it," 22 that is, authorizes its imposition. Meanwhile, all
laws which provided for the death penalty remained in force and were
maintained in the statute books despite that constitutional provision since it
did not by itself have the effect of amending or repealing them. Some of
those laws were later expressly repealed or amended by the President in
the exercise of her then legislative powers and, thereafter, some were
repealed or modified by Congress, which even added other heinous crimes
with capital penalties. However, other laws like Presidential Decree No.
1866, which were not thus repealed or amended, retain their present
provisions and effects, except that the death penalty provided by them
would in the meantime be reduced to reclusion perpetua. Parenthetically,
why should the laws concerned be deemed amended or repealed if the
death penalty provided for therein had already been "abolished" by the
Constitution?
Republic Act No. 7659 did not "reimpose" the death penalty on murder.
Article 248 of the Penal Code, which provided for the penalty of reclusion
temporal in its maximum period to death for that crime, was amended by
Republic Act No. 7659, merely to increase the penalty to reclusion
perpetua to death, but it remained in full force even during the interim
except for the fact that the penalty of death could not then be imposed.
That is why the title of Republic Act No. 7659 is "An act to Impose the
Death Penalty in Certain Heinous Crimes, Amending for that purpose, the
Revised Penal Code, . . . ." The same is true with respect to the
aggravated form of illegal possession of firearms, except that the
imposition of the death penalty thereunder is still proscribed.
2. Even if we were to indulge the majority in its thesis on the effects of
Republic Act No. 7659 on Presidential Decree No. 1866, that is, that by the
non-inclusion in the former of the aggravated form of illegal possession
with murder the death penalty cannot be imposed for the murder, that fact
does not warrant and cannot justify the recourse it has adopted as a
judicial dictum. The second paragraph of the aforestated Section 1
expressly and unequivocally provides for such illegal possession and
resultant killing as a single integrated offense which is punished as such.
The majority not only created two offenses by dividing a single offense into
two but, worse, it resorted to the unprecedented and invalid act of treating
the original offense as a single integrated crime and then creating another
offense by using a component crime which is also an element of the
former.
It would already have been a clear case of judicial legislation if the illegal
possession with murder punished with a single penalty had been divided
into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative
powers for this Court to now, as it has done, treat that single offense as
specifically described by the law and impose reclusion perpetua therefor
(since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to
be able to impose the death sentence. For indeed, on this score, it is
beyond cavil that in the aggravated form of illegal possession, the
consequential murder (or homicide) is an integrated element or integral
component since without the accompanying death, the crime would merely
be simple illegal possession of a firearm under the first paragraph of
Section 1.
3. The fact that the aggravated form of illegal possession with murder was
not included in Republic Act No. 7659 is a matter for Congress, and not for
this Court, to remedy. A legislative terrain with gaps of omission in the
statute is not terra incognita to the courts, familiar as we are with instances
thereof. The legislature may have committed such omissions in the law for
reasons of its own or through unintended oversight but, unless judicial
remedy is constitutionally permissible, and in the cases at bar it is not, the
courts must await the legislative remedy of amendment or repeal of that
law.
For illustration, we can just again refer to the impasse earlier discussed
regarding the logically absurd penalties for kidnapping in Article 267, in
relation to forcible abduction of a woman under Article 342 and kidnapping
for
slavery in Article 272, all of the Revised Penal Code. A reading of Republic
Act No. 18 23 and Republic Act No. 1084 24 readily reveals that it was the
purpose of Congress by corresponding amendment of the other related
provisions of the Code, to put all forms of kidnapping and serious illegal
detention in Article 267. Yet, in the process, that objective was not fully
subserved by the two amendatory laws since forcible abduction of a
woman, which necessarily involves her kidnapping and detention, as well
as kidnapping for the purpose of enslaving the victim, were overlooked and
not included in the provisions of Article 267. 25
These instances are presented to project the discrepancies in what should
be the appropriate penalties for the aforesaid offenses involved because of
their omission by Congress in the logical taxonomy of crimes. Yet, the
Judiciary stands bound by the aforementioned state of the law on the
matter, and has no attempted to exercise the power reserved for legislative
amendment to suit its perceptions on what the penalties should be for
forcible abduction and slavery. Similarly, the disposition in the cases at bar
is grounded on the omission or non-inclusion of murder through the use of
an illegally possessed firearm in the heinous crimes subject of Republic Act
No. 7659. But, instead of respecting the legislative formulation, the majority
has contrarily decided to disregard the clear import of Presidential Decree
No. 1866 and opted to impose two penalties for what it considers as two
offenses through a bifurcated interpretation.
4. Following that treatment, is the Court now prepared to adopt the same
procedure with regard to similar offenses punished under other decrees?
For example, Presidential Decree No. 532, 26 punishes highway robbery
with murder or homicide with the mandatory penalty of death. Since this
offense has not been included in Republic Act No. 7659 and the death
penalty cannot be imposed, shall this Court also follow the same procedure
of imposing the penalty of reclusion perpetua for the highway robbery with
murder (or homicide) under Presidential Decree No. 532, and then further
impose the death penalty for the same murder under Article 248 of the
Revised Penal Code?
Again, Presidential Decree No. 533 27 imposes the penalty of reclusion
perpetua to death if a person is killed as a result of cattle rustling. This
offense has not been included in Republic Act No. 7659, hence the penalty
can only be reclusion perpetua. By adopting the same rationale in the case
at bar, shall the Court then impose the penalty of reclusion perpetua for
cattle rustling pursuant to Presidential Decree No. 533 and then, if the
killing constitutes murder attended only by an aggravating circumstance,
should it then impose another penalty of death for the same murder under
Article 248 of the Code?
Still further, Presidential Decree No. 534 28 provides that if illegal fishing
with the use of explosives or noxious or poisonous substances results "in
the loss of human life, then the penalty shall be imprisonment from 20
years to life, or death." This offense is not provided for in Republic Act No.
7659, hence the death penalty cannot be imposed; but the killing could
conceivably constitute murder since the use of explosion or poison is a
qualifying circumstance. The inevitable question that must again be posed,
based on the theory adopted here by the majority, is whether or not the
illegal fishing with murder shall be punished with life imprisonment at most
under Presidential Decree No. 534, and then, if only an aggravating
circumstance is present therein, the accused must also be given another
penalty of death under Article 248 of the Code.
We can easily multiply what are clearly perceivable as the dangerous
consequences of the solution contrived by the majority of creating two
offenses and imposing two penalties. I have, however, chosen the
foregoing illustrations involving acts punished under both a presidential
decree and the Revised Penal Code, with murder as a common
denominator, to make my analogies as close as possible to that involving
Presidential Decree No. 1866 in these cases. In truth, the same
problematic situation could be raised and created against any composite
felony in the Code which is considered as a unitary offense and punished
by a single penalty, if the majority's novel theory of duality of offenses with
double penalties were to be applied thereto.
It is rather pointless to essay an unnecessary distinction between the
phrase "as a result or on the occasion of" which refers to the killing
committed in the course of violating Presidential Decrees Nos. 532, 533
and 534, and the killing "with the use" of an illegally possessed firearm
contemplated in Presidential Decree No. 1866. Incidentally, the equivalent
phrase used in the special complex crimes in Articles 294 and 297 of the
Code, in referring to the deaths caused by the malefactor, is "by reason or
on occasion of" the different stages of the robbery therein. But the common
denominator and identity among all the aforesaid composite crimes, for
purposes of the issue under consideration, is that there is a principal
offense, which is separately punishable, and an unlawful killing with a
direct nexus to or connection with that principal offense is also committed.
What is then the focus of the inquiry in the present case which applies with
equal force to the aforestated composite crimes is merely whether or
not, apart from and in addition to the penalty imposable on the offender if
he violates any of the foregoing decrees or commits robbery in any of its
stages and which penalty is increased precisely if accompanied by an
unlawful killing, he should be further and separately punished for such
homicidal or murderous taking of human life. The implacable question is
whether or not two separate penalties should be imposed on him for killing
the same victim since those decrees and the Code already provide a
single but increased penalty for the crimes therein if accompanied by an
unlawful killing and thereby constituting a composite crime. Whether the
death of the victim supervened as "a result or on the occasion," or "by
reason or on occasion," or "with the use" of the firearm or poisonous
substances availed of by the accused is im material even if liberally viewed
in the context of the mens rea as proposed by the majority.
5. Prescinding from the substantive aspect and shifting to the procedural
and constitutional view, I am also bothered by the impact of the majority
opinion upon the rule on double jeopardy. I am referring, of course, to
double jeopardy arising from prosecutions for the same offense under two
or more laws as contemplated in the Rules of Court, 29 and not to the
special situation under the Constitution 30 involving a prosecution for the
same act punished under a law and an ordinance, as clarified in People
vs. Relova, etc., et al. 31 In the first kind of double jeopardy for purposes of
this discussion, what is determinative is the identity of the offense, hence
the "same-evidence" test applies, that is, that the facts alleged and proven
in one charge would, based on the same evidence, suffice to support the
second charge, and vice-versa. 32 Accordingly, the citation by the majority
of People vs. Doriquez 33 is of no moment, since it refers to a single act
offending against two entirely distinct and unrelated provisions of law one
of which requires proof of an additional fact or element, hence different and
not identical offenses are involved.
In the cases now before us, it is difficult to assume that the evidence for
the murder in the first charge of aggravated illegal possession of firearm
with murder would be different from the evidence to be adduced in the
subsequent charge for murder alone. In the second charge, the illegal
possession is not in issue, except peripherally and inconsequentially since
it is not an element or modifying circumstance in the second charge, hence
the evidence therefor is immaterial. But, in both prosecutions, the evidence
on murder is essential, in the first charge because without it the crime is
only simple illegal possession, and, in the second charge, because murder
is the very subject of the prosecution. Assuming that all the other
requirements under Section 7, Rule 117 are present, can it be doubted that
double jeopardy is necessarily present and can be validly raised to bar the
second prosecution for murder? 34
In fact, we can extrapolate this constitutional and reglementary objection to
the cases of the other composite crimes for which a single penalty is
imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the
same offense of either estafa or falsification; or how the accused convicted
of robbery with homicide under Article 294 can be legally charged again
with either of the same component crimes of robbery or homicide; or how
the convict who was found guilty of rape with homicide under Article 335
can be duly haled before the court again to face charges of either the same
rape or homicide. Why, then, do we now sanction a second prosecution for
murder in the cases at bar since the very same offense was an
indispensable component for the other composite offense of illegal
possession of firearm with murder? Why would the objection of non bis in
idem as a bar to a second jeopardy lie in the preceding examples and not
apply to the cases now before us?
The majority comes up with the so-called "additional element" test to take
the issue out of the rule on double jeopardy, citing for that purpose Yap
vs. Lutero 35 and People vs. Relova, etc., et al. 36 These cases are not
actually in point since they are primarily concerned with the question of
double jeopardy where the same offense is punished by two statutes or
different sections of the same statute, as contrasted with double jeopardy
arising from the same act punished by a law and likewise by an ordinance,
as has earlier been explained. The distinction is not germane here since
there is no punitive ordinance involved in the case at bar. This proposition
of the majority, however, bears discussion.
I do not gainsay the validity of the "additional element test," if properly
understood and correctly applied. As I have written elsewhere, it is a
cardinal rule that the protection against double jeopardy may be invoked
only for identical offenses or where an offense necessarily includes or is
necessarily included in the other offense. However, it has also long been
held that a single act may offend against two or more entirely distinct and
unrelated provisions of law, and if one provision requires proof of an
additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar
prosecution under the other. 37 That is because the two offenses continue
to exist independently of each other, with their respective penalties
remaining unaffected by the commission of or penalty for the other offense.
This is illustrated by the considerations in the present rule that Batas
Pambansa Blg. 22, which punishes the mere issuance of bouncing checks,
is not a bar to another prosecution for estafa through the use of bouncing
checks under paragraph 2(d), Article 315 of the Revised Penal
Code. 38 The rationale therefor is that the issuance per se of a bouncing
check is ipso jure punishable under Batas Pambansa Blg. 22, but to be
punishable as estafa under the Code, the additional elements of deceit and
damage are required. Also, while the former offense requires the drawer's
knowledge of lack or insufficiency of funds in the drawee bank at the time
the check is issued, the aforesaid provision on estafa does not so require.
The penalty for the former is fixed by Section 1 of said law without regard
to the damage caused or even without such damage, whereas the penalty
for estafa through bouncing checks is determined by the damage to the
offended party. 39 Lastly, Section 5 of Batas Pambansa Blg. 22 provides
that prosecution thereunder "shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code."
These features are absent in the integrated offense of murder or homicide
with the use of an illegally possessed firearm. It is true that mere illegal
possession has a specific lower penalty in Presidential Decree No. 1866,
and murder or homicide have their own specific penalties in Articles 248
and 249 of the Code. However, the moment both erstwhile separate
offenses juridically unite, we have what for expediency has been called by
this Court an aggravated form of illegal possession of firearm punishable
by the two highest penalties of reclusion perpetua to death. We cannot
speak here, therefore, of the "additional element test" which presupposes
and requires that the two offenses remain distinct from each other, with the
discrete penalty for one being immune from that for the other. What,
instead, transpired in Presidential Decree No. 1866 is a unification or
merger in law of both offenses of illegal possession of firearm and murder
or homicide, with each of them becoming a component offense in a new
and different composite crime punished by another and gravely higher
penalty.
V
1. The apprehension was also aired in our deliberations that the ruling
in Barros may provide dishonest prosecutors with unfettered discretion to
charge parties who commit illegal possession of firearms in its aggravated
form not with the said offense but only with homicide or murder with one
qualifying circumstance, and without any generic aggravating
circumstance, so that by such strategy the accused would thereby get only
the minimum period of the penalty.
As long as we live in a world of men and not of angels, there will always be
that legitimate fear over the possible excesses of officialdom. There are,
however, a plenitude of remedies provided by law for such a contingency,
either criminal, civil or administrative in nature. In fact, if that act of the
public prosecutor amounts to a refusal to perform a specific duty imposed
on him by law, his nonfeasance could even be controlled by an action for
mandamus and he can be compelled to charge the proper offense in the
information. 40
2. Again, drawing from the experience in Deunida where only the
aggravated illegal possession charge proceeded while that for homicide
was withdrawn, then on the submission that no private interest had to be
protected therein, no private prosecutor could appear for the victim.
Indeed, it was stated in said case: "No private interest is therefore involved.
The civil liability arising from death may be the subject of a separate civil
action or impliedly instituted with the criminal action for murder or
homicide." The Court then ordered the deletion of the award of civil
liability ex delicto.
It is my stand that even under such circumstances, the trial court may
justifiedly assess and award the corresponding damages to the heirs of the
victim. This is not one of the so-called "victimless crimes" where, by the
very nature of the crime, no damages can possibly be sustained by a
private party, such as espionage, violation of neutrality, flight to enemy
country or crimes against popular representation. 41 Where the victim was
killed under the circumstances contemplated in Presidential Decree No.
1866, I see no reason why the case should be excepted from the
fundamental rule that every person criminally liable is civilly liable. 42 Thus,
while the crime of rebellion is directed against the Government, yet in the
rebellion cases decided by this Court, corresponding awards for civil
damages were invariably granted so long as the offense which caused the
damage was proved and the victim and the malefactor or the property
involved were duly identified by satisfactory evidence.
3. The advertence to People vs. De Gracia, et al., 43 the decision wherein
was penned by this writer, overlooks or fails to mention that the same was
decided under the aegis of the doctrines in the cases hereinbefore
enumerated, specifically the Tioson case, to which we then had to defer as
they constituted the prevailing rule, but which are now sought to be
revisited in the instant case in light of Barros.
The statement in De Gracia that "(i)t was a legal malapropism for the lower
court to interject the aforestated provision of the Revised Penal Code in
this prosecution for a crime under a special law," referred to the action of
the trial court in recommending executive clemency for the accused.
Although there are some contrary views on the matter, the writer held that
Article 5 of the Code does not apply to convictions under a special law
where such application, as earlier stated, is expressly or impliedly
prohibited. Said Article 5 expressly provides for the authority of the court to
recommend executive clemency "when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty." Since, at that time the legal interplay between Presidential Decree
No. 1866 and the penalties "borrowed" for it from the Revised Penal Code
was still amorphous, this writer had to make those pronouncements in said
case, but, precisely, the same are now being reexamined in the present
cases.
I am aware that I have raised a number of what may appear as
discomposing views but these should provoke a more thorough
reexamination of the issues in these cases. On the other hand, I
apprehend that the decision handed down herein may have opened a
Pandora's box of legal curiosities and the swarm thus released will in due
time return to the Court to roost. I can only hope that the Court's mavens of
penal law who are responsible for the majority opinion here can fortify the
same to meet the diverse and adverse reactions that it will predictably
create.
On the foregoing premises, I respectfully but vigorously register my dissent
on the points indicated and for the reasons advanced therefor.
Narvasa, C.J., Romero, Puno, Vitug, Kapunan and Mendoza, JJ., concur.