Coverage as mentioned by Judge Abbu for the final exams: 40% MCQ 60% ESSAY 1. 2. 3. 4. 5. 6. 7. 8. 9.

PD 532 (Anti-Piracy and highway Robbery) BP 22 (Bouncing Check Law) Child Abuse Act Anti-Sexual Harassment Law Rape Law PD 9262 (Violence Against Women and Children) Illegal Possession of Firearms Probation Law Anti-Wiretapping Law

PROBATION LAW (PD 968) 1. What is a Probation? Probation is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. 2. Nature of Probation? Probation is a mere privilege and its grant rest solely upon the discretion of the court and is to be exercised primarily for the benefit of society and only incidentally for the benefit of the accused. 3. Purposes of Probation This Decree shall be interpreted so as to: (a) promote the correction and rehabilitation of an offender by providing him with individualized treatment; (b) provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and (c) prevent the commission of offenses. 4. underlying Philosophy of probation WHEREAS, one of the major goals of the government is to establish a more enlightened and humane correctional systems that will promote the reformation of offenders and thereby reduce the incidence of recidivism; WHEREAS, the confinement of all offenders prisons and other institutions with rehabilitation programs constitutes an onerous drain on the financial resources of the country; and WHEREAS, there is a need to provide a less costly alternative to the imprisonment of offenders who are likely to respond to individualized, community-based treatment programs; 5. When to File the Petition for Probation The court may, after it shall have convicted and sentenced a defendant and upon application at any time of said defendant within the period for perfecting an appeal, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. Provided, That no application for probation shall be entertained or granted if the defendant has perfected an appeal frm the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waver of the right to appeal, or the automatic withdrawal of a pending appeal. An order granting or denying probation shall not be appealable. (As amended by PD 1990.) 6. Mandatory conditions of Probation Every probation order issued by the court shall contain conditions requiring that the probationer shall: (a) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; (b) report to the probation officer at least once a month at such time and place as specified by said officer. The court may also require the probationer to: (a) cooperate with a program of supervision; (b) meet his family responsibilities;

(c) devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; (d) undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; (e) pursue a prescribed secular study or vocational training; (f) attend or reside in a facility established for instruction, recreation or residence of persons on probation; (g) refrain from visiting houses of ill-repute; (h) abstain from drinking intoxicating beverages to excess; (i) permit to probation officer or an authorized social worker to visit his home and place or work; (j) reside at premises approved by it and not to change his residence without its prior written approval; or (k) satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience. 7. Effect of Filing of Petition for Probation It is deemed to be a waiver of defendants right to appeal. Probation order shall take effect upon its issuance, at which time the court shall inform the offender of the consequences thereof and explain that upon his failure to comply with any of the conditions prescribed in the said order or his commission of another offense, he shall serve the penalty imposed for the offense under which he was placed on probation. 8. Effect of Appeal by the accused of his conviction It is deemed as an automatic withdrawal of the pending appeal. 9. Qualifications/Disqualifications to undergo Probation Only offenders convicted and sentenced by final judgment, who are not covered by PR 603, Dangerous Drugs Act and similar laws, who have not served their sentenced, and are not specifically disqualified may apply for probation. Section 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six (6) years; (b) convicted of subversion or any offense against the national security or the public order; (c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos; (d) who have been once on probation under the provisions of this Decree; and (e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. (As amended by PD 1990.) 10. Period of probation Period of Probation. (a) The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two years, and in all other cases, said period shall not exceed six years. (b) When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor to be more than twice the total number of days of subsidiary imprisonment as computed at the rate established, in Article thirty-nine of the Revised Penal Code, as amended. 11. Pending resolution of the petition for probation, what will happen to the accused? 12. Main criterion for determining who maybe granted probation Criteria for Placing an Offender on Probation. In determining whether an offender may be placed on probation, the court shall consider all information relative, to the character, antecedents,

environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the court finds that: (a) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or (b) there is undue risk that during the period of probation the offender will commit another crime; or (c) probation will depreciate the seriousness of the offense committed Salient JURISPRUDENCE Probation should be availed of at the 1st opportunity. The law considers appeal and probation mutually exclusive remedies. (Francisco vs. CA - 243 SCRA 384 An order denying motion to withdraw application for probation and rejecting notice of appeal is not appealable. The filing of application renders the judgement final and executory and justifies the cancellation of the bond. (Angelo vs. CA - 251 SCRA 523) Probation law is not a penal statute and therefore the principle of liberal interpretation is inapplicable. (Pablo vs. Castillo - 337 SCRA 176) During the period of probation, the probationer is not disqualified from running for a public office because the accessory penalty of suspension from office is put on hold for the duration of the probation. The period within which a person is under probation cannot be equated with service of the sentence adjudged. (Moreno Urbano vs. Comelec - 498 SCRA 547) See More

. I.R.A. 8294 amending P.D. 1866 - Illegal Possession of Firearms and Ammunition 1. 2. 3. 4. 5. 6. 7. 8. 9. What is the basis of classification of firearms? Nature of the crime of illegal possession of firearms. WHat are the essential elements to be proven? Are ownership and good faith valid defenses? Meaning of the term "unlicensed firearm". How many Information must be filed when an unlicensed firearm is used in killing a person? Meaning of Illegal Possession of Firearm under P.D. 1866. What are considered as low-powered firearms; high-powered firearms? Is there a complex crime of rebellion, sedition or coup d'etat with the use of illegal possession of firearms? 10. Acts punished under the law. CASES: 1. Pp vs. Taguba - 342 SCRA 199 2. Pp vs. Cortez - 324 SCRA 335 3. Pp. vs. Montinola - GR # 131856 prom. 7/9/2001 - 360 SCRA 631 4. Pp. vs. Narvaza - 298 SCRA 637 prom. 11/16/98 - 298 SCRA 637 5. Pp. vs. Ricafranca - 323 SCRA 652 6. Pp vs. Samonte - 341 SCRA 342 7. Mallari vs. CA - GR # 110569 prom. 12/9/96

PEOPLE OF THE PHILIPPINES vs. RAUL TAGUBA y REYNOSO and JAIME TOLIBAS y CAMPOSANO, RAUL TAGUBA Y REYNOSO On appeal is the decision dated November 8, 1993 of the Regional Trial Court of Pasay City, Branch 117, in Criminal Case No. 92-1382 finding appellant guilty of the crime of illegal possession of firearm, and in Criminal Case No. 92-1384, finding appellant and accused guilty of the crime of homicide with the use of an unlicensed firearm, sentencing them to the penalty of reclusion perpetua, and ordering them to indemnify the heirs of the victim the amount of P50,000.00, and to pay the costs. Appellant Taguba is a 30 year-old security guard, residing in Dagat-Dagatan, Caloocan City, while accused Tolibas is a 33 year-old basin vendor residing in the same place. The victim, Amador Guina, was a 24 year-old marble mason. For the State, the Office of the Solicitor General presented the following summary of the facts:[1] On September 1, 1992, at around 11:30 in the evening Amado Guina,[2] Joe Mari Tamargo and Peter Castro were on board a public utility jeepney along Taft Avenue (pp. 19-20, TSN, January 12, 1993) coming from Buendia bound for Manila. They had just come from their work in a marble works company at Megamall in EDSA (pp. 3-5, TSN, January 12, 1993). The jeepney was fully loaded with passengers (p. 8, ibid). Amado was seated on one side at the rear portion of the jeepney directly facing Joe Mari and Peter who were seated at the other side of the jeepney (p. 8, ibid). When the jeep was cruising near the San Isidro Church in Pasay City (p. 6, TSN, January 12, 1993), appellant, who was seated immediately next to the right of Amado, suddenly, announced a hold-up (p. 8, TSN, January 12, 1993) whispering do not move, this is a hold up (p. 15, ibid). Appellant was holding a gun (p. 15, ibid) a caliber .38 revolver p. 13, ibid). Amado moved both of his hands as he wanted to resist (p. 15, ibid) and appellant, upon seeing this, immediately fired the gun at Amado (p. 10, ibid). A commotion ensued inside the jeepney during which time appellant and his companion, Jaime Tolibas, fled from the scene (p. 10, ibid). Joe Mari and Peter brought the wounded Amado to the Philippine General Hospital using the same public utility jeepney they were riding on (p. 11, ibid). Amado, however, died along the way (p. 11, ibid); and was declared dead on arrival (DOA) at the said hospital (p. 10, TSN, February 17, 1993). Meanwhile, Police Officer 1 Fernando Dominguez, a member of the Philippine National Police Special Action Force assigned at Fort Bonifacio, was on his way to his house on Villaroel St. in Pasay City after coming from the said camp (pp. 5-6, TSN, February 10, 1993). When he reached Sandejas St. corner Taft Avenue, he heard three consecutive gun shots (p. 6, ibid). Shortly thereafter he saw two men running towards him (pp. 6-7, ibid). He stopped the two, introduced himself as a police officer, ordered them to lie down and frisked both of them while in that prone position (p. 7, ibid). He was able to confiscate a gun from appellant which he found tucked at the back of appellants pants (p. 7, ibid). He was also able to confiscate from appellant and Tolibas several identification cards (Exhibits I, I-1, I2) some of which were fake (pp. 7-8, ibid). While he was deciding on whether to bring the appellant and Tolibas to Fort Bonifacio or Pasay City Police Station, he was told by some bystanders that there were police officers nearby so he decided to turn over appellant and Tolibas to the police officers (p. 9, ibid). He asked appellant and Tolibas to walk toward the direction of the police officers, taking the precaution to walk behind the two for he might not be recognized as a police officer, unnecessarily placing himself at risk (pp. 9-10, ibid). Police Officer 3 Edgardo Cordova and Police Officer 3 Ernie Cabrega were along Lakas ng Bayan St. near the corner of Sandejas St. and Taft Avenue in Pasay City patrolling the area (p. 3, TSN, April 13, 1993). They saw Police Officer 1 Dominguez walking toward them pointing a gun at appellant and Tolibas in front of him. Aside from the gun pointed at appellant and Tolibas, Police Officer 1 Dominguez was also holding another gun in his left hand, its muzzle pointed downward (pp. 3-4, ibid). Upon reaching hearing distance, they were informed by Police Officer 1 Dominguez that he had arrested the two, the gun in his left hand being the gun he had confiscated and that the gun in his right hand was his own (p. 4, ibid). Police Officer 3 Cordova and Cabrega took the guns from Police Officer 1 Dominguez and asked the three to come with them to their headquarters (p. 4, ibid). At the headquarters, Police Officer Dominguez was able to produce documents supporting the legality of his possession of the gun while appellant and Tolibas were not, and on the basis of this fact, the two were turned over to the Investigation Division for the filing of the necessary charges (p. 5, ibid). The gun was

turned over to the Investigating Officer, Senior Police Officer Elmer Pueda (p. 5, ibid). With the confirmation of the arrest, Police Officer 1 Dominguez was requested to execute an affidavit of arrest (Exhibit J) in connection with the incident (p. 11, TSN, February 10, 1993). On September 2, 1992, the body of Amado was autopsied by the Medico-Legal Officer of the Western Police District, Dr. Manuel A. Lagonera. In his Post Mortem Findings (Exhibit L) he identified the cause of death as the gunshot wound at the right upper chest anterolateral, to wit: On September 3, 1992, Joe Mari learned from a newspaper that appellant and Tolibas were arrested near the scene of the shooting of his friend on the very same night the shooting happened (p. 12, TSN, January 12, 1993). Together with Peter, he went to the Pasay City Jail to see appellant and Tolibas, and there he was able to confirm that the persons arrested by Police Officer Dominguez were the ones who shot Amado (p. 12., TSN, January 12, 1993). He then executed a sworn statement (Exhibit H) on September 5, 1992 with SPO1 Pineda identifying appellant as the person who shot Amado, and Tolibas as appellants companion during the attempted holdup (pp. 12-13, ibid). For the defense, appellant and accused presented the following version of the story:[3] On September 1, 1992, on or about 11:30 oclock in the evening, herein accused-appellant, together with his co-accused, Jaime Tolibas, boarded a Monumento bound jeepney along Libertad Street, Pasay City, Metro Manila. The two (2) accused just came from accused Jaime Tolibas (sic) cousin, who was then residing somewhere in that vicinity. The passenger jeepney they were riding at the time, upon reaching the vicinity of Vito Cruz and Taft Avenue, Streets, a commotion broke out and the passengers riding the same all ran away from the jeep. The commotion was the result of a gun shot that was fired inside the passenger jeepney. A male person who is claimed to be a hold-upper fired at one of the passengers and the fatality was one Amador Guina. Both accused were among the passengers who ran away from the passenger jeepney upon hearing the gun shots. Running through an alley in the vicinity of Vito Cruz Street, both accused were stopped by a passing police officer, PNP Special Action Force, PO1 Fernando Dominguez detailed at Fort Bonifacio. A gun was alleged to have been confiscated from accused-appellant Raul Taguba. The two (2) accused including the gun alleged to have been confiscated were turned over by police officer Dominguez to a patrolling team of Pasay policemen named PO3s Cordora and Cabrega. Both accused were brought to the Pasay Police Station for investigation and SPO1 Elmer Pueda of the said police station conducted the investigation including the alleged gun confiscated. Preliminarily, both accused are being charged only of usurpation of authority by police investigation (sic) SPO1 Elmer Pueda because of the false IDs confiscated from them. They were then detained at the Pasay Police Station for two (2) days and no complainant appeared for that period of time. Accused Jaime Tolibas was inquested and charged with usurpation of authority while accused-appellant Raul Taguba and Jaime Tolibas were charged with illegal possession of firearm. On September 5, 1992, an alleged eye witness, Joe Mari Tamargo Y Jumuad appeared before the office of investigator SPO1 Elmer Pueda of the Criminal Investigation Branch, Pasay Police Station, to give his statement of a hold-up incident which happened on September 1, 1992. Based on his statement, which is prosecution exhibit H and H-1, he chanced upon and was able to read a news item in the Sept. 3, 1992 issue of Peoples Tonight. On page 5 to 8 thereof, he allegedly recognized a male person on a news caption Policemen Arrest Policemen and pointed to a male suspect then seated in front of him and the investigator, as the alleged gunman who killed his friend, Amador Guina, in a hold-up incident which happened on September 1, 1992. Based on the late testimony of Joe Mari Tamargo, another case and information for Homicide With The Use of An Unlicensed Firearm was filed against the two (2) accused. On September 4, 1992, appellant was charged with the crime of Illegal Possession of Firearms in Criminal Case No. 93-1382, which was raffled to the RTC-Pasay City, Branch 117. Said Information reads:[4] The undersigned Assistant City Prosecutor accuses RAUL TAGUBA Y REYNOSO of VIOLATION OF PRESIDENTIAL DECREE NO. 1866, committed as follows: That on or about the 1st day of September, 1992, in Pasay, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Raul Taguba y Reynoso, with intent to use, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control one (1) Caliber .38 with three (3) live ammunition, without the necessary permit to possess the same. Contrary to law. Pasay, Metro Manila, September 3, 1992.

(SGD.) CONSTANTINO O. ORAA Asst. City Prosecutor On September 7, 1992, after prosecution witness Tamargo surfaced, appellant and accused were additionally charged in Criminal Case No. 92-1384 with violation of Section 1, Paragraph 2 of Presidential Decree No. 1866 (Homicide with the Use of an Unlicensed Firearm), which was raffled to the RTC-Pasay, Branch 110. The Information states:[5] The undersigned Assistant City Prosecutor accuses RAUL TAGUBA Y REYNOSA AND JAIME TOLIBAS Y CAMPOSANO, of the crime of HOMICIDE WITH THE USE OF UNLICENSED FIREARM (SECTION 1, PARAGRAPH 2, OF PD. 1866), committed as follows: That on or about the 1st day of September, 1992, in Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, without justifiable cause but with deliberate intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault, and shot one AMADOR GUINA with the use of an unlicensed firearm (caliber 38 revolver Smith and Wesson (Paltik) without Serial Number) on the vital part of his body, thereby inflicting upon the latter mortal wound which cause his death. Contrary to law. Pasay, Metro Manila. 07 September 1992. (sgd.) MERCEDES POSADA-LACAP Asst. City Prosecutor Upon arraignment, appellant entered a plea of not guilty in the Illegal Possession case.[6] Appellant and accused likewise entered their respective pleas of not guilty to the charge of Homicide with the Use of an Unlicensed Firearm.[7] Upon discovery of the two pending cases in the different branches of the trial court, the defense moved for the consolidation of the two cases.[8] During joint trial, the prosecution presented the following witnesses: (1) Joe Mari Tamargo, eyewitness to the incident, (2) PO1 Fernando Dominguez, who initially arrested both appellant and accused, (3) Dr. Manuel Lagonera, Medico-Legal officer of the Western Police District, who conducted the autopsy on the body of the victim, (4) PO3 Edgardo Cordova, (5) SPO2 Jose Villa Garcia, the policemen to whom PO1 Dominguez turned over appellant and accused, and (6) Marilou Guina, widow of the victim, who testified as to the damages sustained as a result of the death of her husband. For the defense, appellant and accused both testified and interposed the defense of denial. Both protested that they were mere innocent passengers of the jeepney. Appellant testified that he jumped out of the jeepney when an unidentified man suddenly shot his seatmate. When accused saw appellant running away, he followed suit. The two were still running when they were accosted by four policemen, who frisked them and confiscated their identification cards.[9] On November 8, 1993, the trial court rendered a consolidated decision, disposing thus: WHEREFORE, in view of the foregoing, the Court finds the accused Raul Taguba y Reynoso GUILTY beyond reasonable doubt in Criminal case no. 92-1382, for violation of R.A. 1866, and sentences him to an indeterminate penalty of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal as maximum, and to pay the costs. It is also ordered that the firearm, subject matter of the offense, be turned over to the Firearms and Explosives Unit of the Philippine National Police for proper disposition. Likewise, the Court in Criminal case no. 92-1384, the Court (sic) finds the accused Raul Taguba y Reynoso and Jaime Tolibas y Camposano GUILTY beyond reasonable doubt of homicide with the use of an unlicensed firearm defined and penalized under Section 1, paragraph 2, of P.D. 1866, and sentences them to reclusion perpetua; to indemnify the heirs of the deceased Amado Guina, jointly and severally the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. Both accused shall be credited in the service of their sentence with the full time during which they have undergone preventive imprisonment in accordance with Article 29 of the Revised Penal Code. Only appellant interposed an appeal. He contends that the trial court erred in: [12]

I. ... NOT FINDING THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED-APPELLANT RAUL TAGUBA BEYOND REASONABLE IN THE TWO CASES. II. ... CONVICTING ACCUSED-APPELLANT RAUL TAGUBA FOR THE TWO CRIMES OF HOMICIDE WITH THE USE OF AN UNLICENSED FIREARM AND FOR VIOLATION OF PRESIDENTIAL DECREE NO. 1866 AND SENTENCING HIM THE PENALTY OF RECLUSION PERPETUA AND AN INDETERMINATE PENALTY OF TEN YEARS AND ONE DAY OF PRISION MAYOR AS MINIMUM TO FOURTEEN YEARS, EIGHT MONTHS AND ONE DAY OF RECLUSION TEMPORAL AS MAXIMUM. In his brief, appellant assails the credibility of eyewitness Joe Mari Tamargo considering that it took him four (4) days after the incident to surface. Further, appellant bewails the fact that they were not in a police lineup when Tamargo identified them as the assailants. Appellant further assails the testimony of PO1 Dominguez considering that he executed his statement on September 1, 1992, but only signed it on September 3, 1992. Lastly, appellant claims that his conviction cannot stand since the firearm allegedly confiscated from him was never presented during trial. In the appellees brief, the Office of the Solicitor-General contends that the trial court did not err in its assessment of credibility of the witnesses, not having overlooked facts of substance or circumstances of significance which, if considered, would alter the result of the case. Further, the delay of a mere four days in the execution of Joe Maris sworn statement has no bearing on his credibility. As to the delay in PO1 Dominguez signing of his statement, he already explained that he made a temporary statement only because he was then about to go home. Further, there is no requirement that the firearm confiscated from appellant should in all instances be presented during trial. As explained by PO3 Cordora, the person who had custody of the firearm died after the incident, and the police officers could no longer locate the subject firearm. An appeal in a criminal case throws the whole case wide open for review, and issues whether raised or not by the parties may be resolved by the appellate court.[13] Thus, we find that the issues in this case pertain to (1) the assessment of credibility of witnesses, (2) the correct characterization of the crime or crimes committed by appellant and accused, and (3) the propriety of their conviction for illegal possession of firearm in view of the non-presentation of the subject firearm in court. As we have repeatedly held, the assessment of credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude. Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.[14] We generally uphold and respect the trial courts appraisal since, as an appellate court, we do not deal with live witnesses but only the cold pages of a written record.[15] In this case, the identification of appellant and accused by PO1 Dominguez and eyewitness Tamargo was positive and categorical. Appellant and accused literally ran into PO1 Dominguez in their bid to escape the failed hold-up.[16] Tamargo who was seated in front of the victim actually saw appellant shoot at the victim with a .38 cal. firearm.[17] Further, Tamargo promptly surfaced after reading the news of the arrest in a local newspaper which showed the pictures of appellant and accused.[18] Hence, he could not even be faulted for the slightest delay in coming out as an eyewitness to the killing. Likewise, PO1 Domiguez satisfactorily explained the delay of three days in signing the affidavit of arrest. The foregoing considered, we find no cogent reason to depart from the factual findings of the trial court. As to the crime or crimes committed by appellant, the peculiar circumstances of the case led to the filing of two cases, both involving illegal possession of firearms. The trial court convicted appellant of illegal possession in Criminal Case No. 92-1382 and both appellant and accused of the crime of illegal possession in its aggravated form under Criminal Case No. 92-1384. However, the passage of Republic Act No. 8294,[19] which lowered the penalties for illegal possession, has changed the legal scenario for appellant. Being beneficial to appellant who is not a habitual criminal, R.A. No. 8294 should be considered in his favor.[20] Under Section 1, third paragraph of R.A. No. 8294, and as interpreted by the Court in People v. Molina[21] and subsequent cases,[22] if homicide or murder is committed with the use of an unlicensed firearm, only the offense of homicide or murder is committed, and the use of the unlicensed firearm should be considered as an aggravating circumstance. An examination of the allegations in the Information reveals that all the elements of homicide were sufficiently alleged and proven during trial. However, the Information did not allege any of the circumstances which would qualify the crime to murder. Hence, appellant can only be convicted of the crime of homicide. On the last issue, can the crime of illegal possession be proven even in case of non-presentation of the subject firearm? In cases involving illegal possession of firearms, the prosecution has the burden of proving the elements thereof, viz.: (a) the existence of the subject firearm; and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the

same.[23] As to the first requisite, the existence of the subject firearm can be best established by the presentation of the firearm owned or possessed by the accused. However, there is no requirement that the actual firearm itself must be presented in court. In People v. Orehuela,[24] the Court held that the existence of the firearm can be established by testimony, even without the presentation of the said firearm. Thus, the non-presentation of the subject firearm is not fatal to the prosecution of an illegal possession case. In this case, two credible witnesses testified that they saw appellant in possession of the subject firearm. PO1 Dominguez testified that he recovered a .38 cal. firearm with no serial number from appellant. Prosecution witness Tamargo saw appellant shoot at the victim. These witnesses who are total strangers to appellant and accused had no false motive to testify against them. The positive testimonies, therefore, prevail over the bare denials of appellant and accused. Worth noting, both were seen right in the midst of the locus criminis. As to the second requisite, the non-existence of the license or permit was sufficiently proven by the Certification (Exh. A) of Sr. Inspector Mario M. Espino of the Philippine National Police, Firearms and Explosives Office that appellant is not a licensed/ registered firearms holder of any kind and caliber. The foregoing considered, the crime committed by appellant was homicide, with the use of the unlicensed firearm as an aggravating circumstance. Under Art. 249 of the Revised Penal Code, the penalty for homicide is reclusion temporal, which in view of the presence of one aggravating circumstance, should be imposed in its maximum period. Applying the Indeterminate Sentence Law, the minimum of the penalty should be taken from prision mayor. The lowering of the penalty, being favorable to the accused who did not interpose an appeal, should likewise be applied as to him.[25] As to damages, the trial court correctly ordered appellant and accused solidarily to pay the heirs of the victim the amount of P50,000.00 as indemnity, pursuant to current jurisprudence.[26] As to appellant, we find on review that he is liable for actual damages in the amount of P37,500.00, it being duly supported by receipts.[27] Likewise, based on the evidence, he is also liable in the amount of P850,440.00, for the loss of earning capacity of the victim.[28] Furthermore, considering that the widow testified as to the mental anguish she suffered on account of the death of her husband,[29] he is likewise ordered to pay the amount of P50,000.00 as moral damages. Finally, one aggravating circumstance having been proved, the award of exemplary damages against appellant in the amount of P20,000.00 is also in order. WHEREFORE, the consolidated decision of the Regional Trial Court of Pasay City, Branch 117, in Criminal Case Nos. 92-1382 and 92-1384, is hereby MODIFIED. Pursuant to existing laws, the Information in Criminal Case No. 92-1382 is quashed and the judgment therein VACATED and SET ASIDE. Appellant RAUL TAGUBA y REYNOSO and accused JAIME TOLIBAS y CAMPOSANO, are found GUILTY only of the crime of HOMICIDE aggravated by the use of an unlicensed firearm in Criminal Case no. 92-1384. Appellant is hereby sentenced to the penalty of eleven (11) years, four (4) months, and one (1) day of prision mayor maximum as minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal maximum as maximum, and ordered solidarily to pay the heirs of the victim the amount of P50,000.00 as indemnity. Although accused JAIME TOLIBAS y CAMPOSANO did not appeal his sentence, said penalty in this case being lower than that imposed by the trial court, shall now APPLY to his favor. In addition, appellant Taguba is hereby ordered to pay the heirs of the victim the amounts of P37,500.00 as actual damages, P850,440.00 as loss of earnings, P50,000.00 as moral damages, and P20,000.00 as exemplary damages. G.R. No. 129693 January 24, 2000 PEOPLE OF THE PHILIPPINES, vs. RUDY CORTES Y CABALLERO Before the Court for automatic review is the Decision1 of the Regional Trial Court of Masbate, Branch 46, in Criminal Case No. 7978, convicting the accused-appellant, Rudy Cortes y Caballero, of the crime of rape committed against Analiza Germina y Banculo, sentencing him to suffer the supreme penalty of death, and disposing thus: WHEREFORE, the Court finds the accused Rudy Cortes y Caballero guilty beyond reasonable doubt of the crime of rape defined under Art. 335 of the Revised Penal Code with three (3) attendant aggravating circumstances a crime penalized under R.A. No. 2632 and R.A. No. 411, and hereby imposes to the accused the supreme penalty of DEATH and to indemnify the victim, Analiza Germina, the sum of P50,000.00 as moral damages, and to pay the costs. Filed on January 16, 1996, the Information charging the accused-appellant with the crime of rape, alleges: That on or about September 29, 1995, at about 12:00 o'clock midnight, at Sitio Balik-Balik [sic], Barangay Poblacion, Municipality of Baleno, Province of Masbate, Philippines and within the jurisdiction

of this Honorable Court, the above-named accused armed with a knife, by means of violence and intimidation, did then and there willfully, unlawfully, and feloniously have carnal knowledge with Analiza Germina y Banculo against her will and consent. CONTRARY TO LAW.3 The inculpatory facts and circumstances complained of can be culled as follows: The private Complainant, Analiza Germina y Banculo, seventeen years old (17), was the lone occupant of her parents' house at Sitio Balik-Balik [sic], Poblacion, Baleno, Masbate, as she was studying in the nearby Baleno High School. Her parents were then staying in another house at Barangay Batuila, Baleno, Masbate.4 At around midnight of September 22, 1995, Analiza was suddenly awakened by a heavy weight pressing down upon her.5 Since the house was lighted, she recognized her attacker, Rudy Cortes y Caballero, who is her brother-in-law. Accused-appellant pointed a knife at her throat and covered her mouth with a handkerchief.6 Despite Analiza's struggle to free herself, the accused-appellant succeeded in removing her underpants.7 With his one hand poking a knife near her throat, and the other holding her hand, he positioned his legs on top of the legs of Analiza and forcibly inserted his penis into her vagina even as the latter felt a strange onslaught of pain.8 After consummating his crime, accused-appellant warned Analiza to keep the incident to herself or he would kill her; wielding his knife to signify the threat.9 On November 12, 1995, Analiza had gathered enough courage to report the incident to her mother such that on November 17, 1995, she was brought to Dra. Marilou A. Hernandez for medical examination.10 The pertinent portion of the medical report dated November 11, 1995, stated: hymenal healed laceration at 6:00 o'clock position Vaginal os admits two fingers with ease.11 Accused-appellant interposed alibi as a defense. He declared that in the night of September 29, 1995, he was inside his house in Sog-ong, Baleno, Masbate. According to him, the victim had a misunderstanding with her older sister, Elsa Cortes, (his wife) because they advised the victim not to allow her boyfriend to sleep in their parents' house in Balic-Balic.12 This version of accused-appellant was corroborated by his wife Elsa Cortes, who testified that from 6:00 o'clock in the evening of September 29, 1995 until the following morning, accused-appellant was in their house. Elsa likewise confirmed the alleged misunderstanding between her and Analiza.13 On April 28, 1997, the trial court came out with the judgment of conviction under automatic review. The defense contends that: I THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE. II THE COURT A QUO ERRED IN ORDERING THE ACCUSED-APPELLANT TO INDEMNIFY THE VICTIM IN THE AMOUNT OF P50,000.00 AS MORAL DAMAGES AND TO PAY THE COSTS.14 It is doctrinal that the evaluation by the trial court of the testimony of a witness is accorded with highest respect because the trial court had the direct and singular opportunity to observe the facial expression, gesture, and tone of voice of a witness while testifying and therefore, competent to determine whether or not the witness is telling the truth.15 In the case under scrutiny, the trial court gave credence to the testimony of the rape victim, ratiocinating thus: The victim in testifying how the crime of rape was committed against her was straightforward and direct on the material facts which has all the earmarks of truthfulness.16 Indeed, the victim's truthfulness can be gleaned unerringly from her testimony, to wit: The testimony of the rape victim was reinforced by the findings of Dra. Marilou A. Hernandez, who opined that the healed laceration at 6:00 o'clock position on the victim's hymen could have been caused by sexual intercourse.19 Against the tale of Analiza, accused-appellant put up alibi as a defense. Time-honored is the rule that alibi is inherently weak and easily contrived.20 Accused-appellant must therefore prove with clear and

convincing evidence that it was physically impossible for him to be at the place and approximate time of commission of the felony,21 which quantum of proof he failed to come forward with. The house of accused-appellant is approximately three kilometers from the locus criminis, a distance which could be negotiated in less than an hour hike.22 It was not then physically impossible for accused-appellant to leave and after raping Analiza, to return to his house without his wife noticing his brief absence.1wphi1.nt What is more, the defense of alibi cannot prevail over the positive testimony of the prosecution witness and her clear identification of accused-appellant as the perpetrator of the crime.23 In the case under scrutiny, since accused-appellant was positively identified by the rape victim, his defense of alibi cannot prevail. Accused-appellant theorized that the lower court did not consider infirmities in the testimony of Analiza which should have warranted his acquittal. He argued24 that it was highly improbable for him (accused-appellant) to have been on top of the victim for one long hour before he was able to consummate the rape. The Court discerns no basis for deviating from the settled rule that testimonies of rape victims who are young and immature are credible.25 Inconsistencies in their testimonies on minor details do not affect the substance of their declaration, veracity and weight of their testimony. As aptly held by the trial court, "Although the length of time might be too long, the precise length of time would be of no moment since it could have been only be an error in her approximation of the length of time."26 Verily, the length of time during which accused-appellant was on top of the victim is only a minor detail which cannot detract from the fact of rape. It could simply mean that due to the resistance of the victim, it took a long time before accused-appellant succeeded in consummating his crime. So also, the mistake in the calculation of time could have been engendered by the natural fickleness of memory which tends to strengthen rather than weaken credibility as it erases any suspicion of rehearsed testimony and does not destroy the substance of her testimony.27 Besides, it is not unlikely that accused-appellant stayed that long on top of the victim considering the apparent impunity which the surrounding circumstances afforded him. It bears stressing that the victim was all alone in her house, not to mention the fact that her mouth was covered by a handkerchief, and her cries could not have possibly caught the attention of the neighbors who, at twelve midnight, were presumably in deep slumber. Accused-appellant argued further that if the rape was consummated only after an hour, "then he runs the risk of being seen in the house in a very compromising situation considering that it was night time and the victim was alone in the house."28 In a long line of rape cases, the Court has consistently held that lust is no respecter of time and place, and rape can be and has been committed in even the unlikeliest of places. Venues of rape have been inside a house where there were other occupants, in a room adjacent to where the victim's family members were sleeping or even in a room which the victim shares with the sister of the offender. There is no rule that rape can be committed only in seclusion.29 With more reason therefore that the aforecited ruling should be applied in this case. As stressed upon by the Solicitor General, the situation of the victim is practically an open invitation to the criminally deviant, like the accused-appellant who, being the brother-in-law of the victim, knew her isolation.30 Contrary to the claim of accused-appellant, the time and place of commission of the crime sued upon actually created a very nil chance for him to be caught because the victim was alone in the house and the people in the neighborhood could not be expected to be all awake and roaming around the streets at midnight. Neither does the Court find convincing the claim of delay on the part of the victim in reporting the sexual assault against her. This Court has consistently held that delay in reporting rape incidents in the face of threats of physical violence, cannot be taken against the victim. A rape victim's action is oftentimes overwhelmed by fear rather than by reason. It is this fear, springing from the initial rape, that the perpetrator hopes to build up a climate of extreme psychological terror, which would, he hopes, numb his victim into silence and submissiveness.31 The case of Analiza appears to be no exception. The threat of accused-appellant on her life generated fear in her mind which for a period of more than a month cowed her into silence. No tenability can be fathomed in the supposed ill-motive imputed on the victim by accused-appellant and his wife. It would take more than an advice which allegedly angered the victim for the latter to subject her family to humiliation, and herself to embarrassment and life-long stigma. No woman, especially of tender age, would concoct a story of defloration, allow the examination of her private parts, and thereafter, pervert herself by being subjected to a public trial if she was not motivated solely by the desire to vindicate her honor.32

The trial court correctly found that the rape was committed with the use of a deadly weapon and consequently, the imposable penalty therefor is reclusion perpetua to death.33 Reclusion perpetua and death are indivisible penalties. Article 63 of the Revised Penal Code provides the rules for their application, one of which, pertinent to the case under consideration, is that when in the commission of the crime only one aggravating circumstance was present, the graver penalty is to be imposed. In the present case, the aggravating circumstances of nocturnity, dwelling and relationship were considered by the lower court. But the aggravating circumstance of nocturnity cannot be appreciated since the evidence does not convincingly show that nighttime was purposely sought by the accusedappellant to ensure its execution.34 So also, the aggravating circumstance of relationship cannot be appreciated in this case because relationship,35 which is a special aggravating circumstance, must be specifically alleged in the Information.36 Since the prosecution failed to state in the Information that the accused-appellant is the victim's brother-in-law (a relative by affinity within the second civil degree), being the husband of the victim's eldest sister, Elsa Germina, the aggravating circumstance of relationship cannot be considered to aggravate the penalty of accused-appellant. On the question of whether or not the aggravating circumstance of dwelling attended the commission of the crime, a ruling in the affirmative has not been reached. Consequently, absent any modifying circumstance, the lesser penalty provided by law should be imposed. Under prevailing jurisprudence, the victim is entitled to an indemnity ex delicto in the amount of Fifty Thousand (P50,000.00) Pesos, in addition to the P50,000.00 moral damages awarded by the trial court. WHEREFORE, the judgment of Branch 46 of the Regional Trial Court of Masbate in Criminal Case No. 7987, finding accused-appellant Rudy Cortes y Cabalero guilty beyond reasonable doubt of the crime of rape under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is AFFIRMED with the modification that the penalty of reclusion perpetua is imposed. Accused-appellant is further sentenced to pay the victim, Analiza Germina y Banculo, the amount of Fifty Thousand (P50,000.00) Pesos, as indemnity ex delicto, apart from moral damages of Fifty Thousand (P50.000.00) Pesos. Costs against accused-appellant.

G.R. Nos. 131856-57 July 9, 2001 PEOPLE OF THE PHILIPPINES, vs. WILLIAM MONTINOLA The core issue in this case is whether the use of an unlicensed firearm in the killing perpetrated by reason or on the occasion of the robbery may be treated as a separate offense or as an aggravating circumstance in the crime of robbery with homicide. Accused-appellant William Muyco Montinola (hereafter WILLIAM) was charged before the Regional Trial Court of Iloilo City with robbery with homicide in Criminal Case No. 47168 and illegal possession of firearm in Criminal Case No. 47269. The accusatory portions of the two informations read as follows: Criminal Case No. 47168: That on or about the 18th day of November 1996, in the City of Iloilo, Philippines, and within the jurisdiction of this Honorable court, the above named accused, armed with unlicensed Cal. 380 Pistol "Llama" with Serial No. 170257 did then and there deliberately, willfully and criminally with violence against or intimidation of persons, with intent of gain, take and carry away cash amount of P67,500.00 belonging to Jose Eduardo Reteracion, and by reason and on occasion thereof, the said accused shot to death the said Jose Eduardo Reteracion; that cash amount of P48,200.00 was recovered from the herein accused. Contrary to Law.1 Criminal Case No. 47169 reads as follows: That on or about the 18th day of November 1996, in the City of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, said accused, with deliberate intent and without any justifiable motive, did then and there willfully, unlawfully and criminally have in his possession, custody and control one (1) Pistol Llama, caliber .380 with Serial No. 170257 with two (2) cal. .380 live ammunition without having obtained the proper license or permit to carry, to hold and possess the same, which firearm was used by the said accused William Muyco Montinola in shooting to death the victim Jose Eduardo Reteracion. Contrary to Law.2 Upon his arraignment on 6 January 1997,3 WILLIAM entered a plea of not guilty to both charges. Joint trial of the two cases was conducted. However, on 19 February 1997, after the prosecution had presented three witnesses, WILLIAM moved to withdraw his previous plea of "not guilty"; and when rearraigned, he pleaded "guilty" to both charges. Nevertheless, trial on the merits continued. The antecedent facts, as summarized by the Office of the Solicitor General, are as follows: At noon of November 18, 1996, appellant boarded a passenger jeepney driven by Jesus Hibinioda bound for Libertad Plaza, Iloilo City. Among the passengers was Jose Eduardo Reteracion. All of a sudden, appellant drew his gun, an unlicensed firearm, .380 caliber pistol Llama with Serial No. 170257 and directed Reteracion to hand over his money or else he would be killed (p. 19, TSN, January 13, 1997). Appellant aimed the firearm at the neck of Reteracion and fired successive shots at the latter. As a result Reteracion slumped dead (pp. 22-23, TSN, January 13, 1997). Police Officer Garcia, who heard the shot, approached the jeep and met appellant carrying a gun. He chased appellant who ran away with his jacket bloodstained as he threw bundles of money. Garcia and the bystanders picked up the money strewn on the way by appellant. Police Officer Hollero finally caught up with appellant, who was brought to the police station with his gun (pp. 5-10, TSN, January 13, 1997). The gun used by appellant while robbing and killing Reteracion was determined by Senior Police Officer Ely Superio of the PNP Firearms Unit as not licensed. Appellant had no permit to possess and/or carry the same (p. 4, TSN, February 18, 1997). The paraffin test made on the hands of appellant yielded positive for gun powder nitrate indicating that he had recently fired a gun (p. 7, TSN, February 19,

1997). The gun confiscated from appellant [was] the same gun used to shoot and kill the victim as shown by the comparison of the slugs from the tested bullets with the slugs recovered from the body of the victim (pp. 7-8 TSN, February 26, 1997). The wife of the victim spent for the burial and wake of her husband an amount of P191,835.00 and failed to recover P39,500.00 which was a part of the money taken from her husband. She became depressed, sleepless and not in the mood to eat because of utter sadness resulting from the death of her husband (pp. 6-14, TSN, January 14, 1997).4 On 24 April 1996, the trial court rendered a Joint Judgment5 finding WILLIAM guilty beyond reasonable doubt of the charges filed against him. It sentenced him to reclusion perpetua for the robbery with homicide and to the penalty of death for illegal possession of firearm. It also ordered him to pay the family of the victim the amounts of P50,000 as death indemnity; P191,835 for the burial and wake expenses; and P39,000 for the unrecovered part of the money taken from the victim and to pay the victims wife P100,000 as moral damages. On 19 May 1997, WILLIAM filed with the trial court a Notice of Appeal6 stating that he was appealing the decision to the Court of Appeals. In an order dated 15 May 1997, the trial court directed the transmission of the records to this Court. In his appellants Brief, WILLIAM imputes this lone error to the trial court: IT WOULD BE AN ERROR TO IMPOSE THE DEATH PENALTY FOR THE CRIME OF ILLEGAL POSSESSION OF FIREARM BECAUSE OF THE ENACTMENT OF REPUBLIC ACT NO. 8294 WHICH AMENDED PRESIDENTIAL DECREE NO. 1866. WILLIAM contends that the use of an unlicensed firearm in the crime of murder or homicide should be appreciated as an aggravating circumstance and not as a separate offense pursuant to R.A. No. 8294,7 specifically Section 1 thereof, amending for that purpose P.D. No. 1866.8 The new law, R.A. No. 8294, may be retroactively applied, since it is favorable to him in that it effectively "reduced the penalties for simple and aggravated forms of illegal possession." For this reason, he prays that the Court reconsider the challenged decision of the trial court and order the dismissal of the case for illegal possession of firearm. On the other hand, the Office of the Solicitor General (OSG) maintains that the invocation by WILLIAM of the benefits of the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. 8294, is misplaced. The use of an unlicensed firearm shall be considered as an aggravating circumstance in the crime of murder or homicide only, which are classified as crimes against persons, and not to robbery with homicide, which is classified as a crime against property under Title X of the Revised Penal Code. Furthermore, to apply to the present case the provisions of R.A. No. 8279 and treat the use of an unlicensed firearm as a special aggravating circumstance would contravene Article 22 of the Revised Penal Code and Section 22, Article III, of the 1987 Constitution prohibiting the "ex post facto application of law." Under Article 294 of the Revised Penal Code, the crime of robbery with homicide is punishable with reclusion perpetua to death. Should the Court appreciate the use of an unlicensed firearm as an aggravating circumstance, the higher penalty of death shall be meted on the accused. Essentially, therefore, WILLIAM shall be made to suffer a greater and harsher punishment than that which the law imposed when the act was committed. Upon the other hand, there is no legal obstacle on the conviction of WILLIAM of the separate crimes of robbery with homicide and illegal possession of firearm because such is supported by our ruling in People v. Cerveto.9 The OSG then sought for the affirmance of the trial courts ruling adjudging the accused guilty of two separate crimes of robbery with homicide and illegal possession of firearm. It recommends, however, that in the charge of illegal possession of firearm the accused be given the benefit of the lighter penalty provided in R.A. No. 8294, i.e., a penalty ranging from four years (4) and two (2) months, as minimum, to six (6) years, as maximum, of prision correccional. Furthermore, the accused should be ordered to return the amount of P19,300 representing the "difference between the amount taken away and the amount recovered as alleged in the information." A few words on procedure and jurisdiction. WILLIAMs notice of appeal has not escaped our attention. He therein stated that he was appealing the trial courts judgment to the Court of Appeals. It must be noted that it is the Supreme Court, and not the Court of Appeals, that has appellate jurisdiction over all criminal cases in which the penalty imposed is reclusion perpetua or higher.10 As to judgments in which death penalty is imposed, such as the judgment in Criminal Case No. 47169, no notice of appeal is necessary, as the same is subject to automatic review11 pursuant to Article 47 of the Revised Penal Code, as amended by R.A. No. 7659.

But as to judgments imposing reclusion perpetua, such as that in Criminal Case No. 47168, the appeal to this Court shall be by filing a notice of appeal with the trial court.12 WILLIAMs notice of appeal from the judgment in Criminal Cases Nos. 47168-69, albeit erroneous since it was directed to the Court of Appeals, may nevertheless be given due course. For even without that or even if he did not appeal from said judgment, we would nevertheless review the same conformably with our ruling in People vs. Alitagtag,13 as affirmed in People vs. Contreras.14 We ruled therein that where cases have been consolidated and jointly tried, and only one decision is rendered sentencing the accused to death in one and to reclusion perpetua in the others, he would be deemed to have appealed from the judgment in the latter cases. Now on the merits of the case. We find that the prosecution has duly established by evidence independent from WILLIAMs plea of guilty and confession of guilt that he killed the victim after having succeeded in divesting the latter of his money. The gun he used in shooting the victim, which was thereafter seized from him and offered in evidence, was unlicensed. And per the testimony of SPO3 Ely Superio of the PNP Firearms and Explosive Unit, WILLIAM had no license or permit to possess or carry the same. The lone issue thus obtaining in this case is whether in light of the amendment introduced by R.A. No. 8294 to P.D. No. 1866 he could be prosecuted for, and convicted of, the separate crimes of robbery with homicide and illegal possession of firearms. On 18 November 1996, when the crime was committed, the pertinent law, P.D. No. 1866, provided in Section 1 thereof as follows: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition or Instruments 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 a firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearms or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. In People v. Alolod,15 the accused therein grabbed from a passenger of a jeepney a bag containing money. When the latter resisted and grappled for the possession of the bag, accused shot him twice with a .38 caliber paltik revolver. In our decision of 7 January 1997, we affirmed the trial courts judgment convicting the accused-appellant therein of two separate crimes of robbery with homicide and illegal possession of firearm and sentencing him to the penalty of reclusion perpetua in each case. As to the charge of illegal possession of firearm, we held: Sec. 1 of P.D. [No.] 1866 provides that "[i]f homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed." Since the incident took place on 13 December 1991 when the death penalty was proscribed and before it was reimposed under R.A. [No.] 7659, which took effect [on] 31 December 1993, the sentence is automatically commuted to reclusion perpetua. The present case has similar set of facts; the only difference is that the crimes were committed on 18 November 1996 when R.A. No. 7659 restoring the death penalty was already in effect. Thus, in line with the ruling in Alolod and applying P.D. No. 1866 and R.A. No. 7659, WILLIAM could be held guilty of two separate crimes of robbery with homicide and illegal possession of firearm, and sentenced to reclusion perpetua for the first crime and to death for the second. Fortunately for WILLIAM, on 6 July 1997 while his case was still pending, R.A. No. 8294 amending P.D. No. 1866 took effect. The third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, provides: If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In recent cases,16 we ruled that there could be no separate conviction for illegal possession of firearm if homicide or murder is committed with the use of an unlicensed firearm; instead, such use shall be considered merely as an aggravating circumstance in the homicide or murder committed. Hence,

insofar as the new law will be advantageous to WILLIAM as it will spare him from a separate conviction for illegal possession of firearm, it shall be given retroactive effect.17 We cannot apply to the instant case People v. Cervito,18 which is relied upon by the OSG. Unlike in the instant case, that case did not call for the application of the second paragraph of Section 1 of P.D. No. 1866 or the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, since the unlicensed firearm which was recovered from the scene of the crime was not the one used in the homicide committed on the occasion of the robbery. The prosecution evidence itself disclosed that such gun had not been fired, as it had no spent shells. The accused-appellant therein, Freneto Cervito, was, however, seen pointing that gun at the passengers while the robbery was going on. He was thus convicted of two crimes of robbery with homicide and illegal possession of firearm. We affirmed his conviction for both crimes. Although the crimes were committed on 10 July 1995 before the effectivity of R.A. No. 8294, we applied the said law with respect to the penalty for the crime of illegal possession of firearm for being more favorable to the accused in that it provided a lighter penalty. The next question that needs to be addressed is whether the use of an unlicensed firearm in the killing perpetrated by reason or on the occasion of the robbery may be considered as an aggravating circumstance in the crime of robbery with homicide. It is undisputed that, pursuant to the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, such use of an unlicensed firearm is a special aggravating circumstance in the homicide or murder committed. But, may the aggravating circumstances attending the killing be appreciated in fixing the appropriate penalty for robbery with homicide? The rulings on this matter are conflicting. In People v. Galang19 and People v. Semaada,20 treachery and cruelty, which attended the killing, were considered as aggravating circumstances in determining the penalty for robbery with homicide. In People v. Nismal,21 the circumstance of disregard of respect due the victim on account of his rank aggravated the crime of robbery with homicide. Likewise, in People v. Capillas,22 People v. Ang,23 and People v. Punzalan,24 we held that when the killing is committed by reason or on the occasion of the robbery, the qualifying circumstances attendant to the killing would be considered as generic aggravating circumstances; thus, in all these three cases the circumstance of abuse of superior strength25 served to aggravate the crime. In the third case, evident premeditation was also considered as aggravating. However, in these three cases, as well as in People v. Ponciano,26 we said that disregard of age, sex or rank is not aggravating in robbery with homicide, which is primarily a crime against property, as the homicide is regarded as merely incidental to the robbery. It is worthy to note, however, that in the more recent case of People v. Salvatiera,27 reiterated in People v. Cando28 and People v. Macabales,29 we held that when treachery obtains in the special complex crime of robbery with homicide, such treachery is to be regarded as a generic aggravating circumstance, since robbery with homicide is a composite crime with its own definition and special penalty in the Revised Penal Code. Having formed part of the circumstances proven concerning the actual commission of the crime, such treachery would help determine the penalty to be imposed. Furthermore, it may not be amiss to state that the special aggravating circumstance of use of an unlicensed firearm mentioned in Article 29630 of the Revised Penal Code has been held to be applicable only to cases of robbery in band under Article 295 of the same Code. It was not appreciated in fixing the penalty for robbery with homicide under Article 294 even if committed by a band with the use of unlicensed firearms (the element of band was considered merely as an ordinary aggravating circumstance).31 At any rate, even assuming that the aggravating circumstances present in the commission of homicide or murder may be counted in the determination of the penalty for robbery with homicide, we cannot appreciate in this case the special aggravating circumstance of "use of an unlicensed firearm" mentioned in the third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294. Such law was not yet enacted when the crime was committed by WILLIAM; it cannot, therefore, be given retroactive effect for being unfavorable to him. Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide is punishable by reclusion perpetua to death, which are both indivisible penalties. Article 63 of the same Code provides that in all cases in which the law prescribes a penalty composed of two indivisible penalties, the greater penalty shall be applied when the commission of the deed is attended by one aggravating circumstance. If we would apply retroactively the special aggravating circumstance of use of unlicensed firearm under Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, the imposable penalty would be death. Conformably with our ruling in People v. Valdez,32 reiterated in People v.

Macoy,33 insofar as the new law would aggravate the crime of robbery with homicide and increase the penalty from reclusion perpetua to death, it would not be given retroactive application, lest it would acquire the character of an ex post facto law. Hence, we shall not appreciate that special aggravating circumstance. There being no modifying circumstances, the lesser penalty34 of reclusion perpetua shall be imposed upon accused-appellant WILLIAM. Parenthetically, the trial court was correct in not crediting in favor of WILLIAM the mitigating circumstance of plea of guilty, since the change of his plea from "not guilty" to "guilty" was made only after the presentation of some evidence for the prosecution.35 To be entitled to such mitigating circumstance, the accused must have voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution.36 The following requirements must therefore concur: (1) the accused spontaneously confessed his guilt; (2) the confession of guilt was made in open court, that is, before a competent court trying the case; and (3) the confession of guilt was made prior to the presentation of evidence for the prosecution.37 The third requisite is wanting in the present case.1wphi1.nt We shall modify the awards of damages. The award of P191,835 for burial and wake expenses should be reduced to P117,672.26, since only the latter amount was evidenced by receipts. Likewise, considering the allegation in the information and the testimony38 of the victims wife that the amount of P48,200 was recovered from WILLIAM, the award of P39,000 representing the unrecovered part of the money taken from the victim must also be reduced to P19,300 (the difference between the sum of money taken from the victim [P67,500] and that recovered from accused-appellant [P48,200]). We should also reduce the award of moral damages from P100,000 to P50,000 in accordance with current jurisprudence.39 WHEREFORE, the Joint Judgment of the Regional Trial Court of Iloilo City, Branch 25, in Criminal Cases Nos. 47168 and 47269 is AFFIRMED with MODICATIONS as follows: 1. In Criminal Case No. 47169, accused-appellant WILLIAM MONTINOLA is ACQUITTED of the crime of illegal possession of firearm and therefore spared the penalty of death; 2. In Criminal Case No. 47168, where the penalty of reclusion perpetua is imposed, (a) The award of P191,835 for burial and wake expenses is REDUCED to P117,672.26; (b) The award of P39,000 representing the unrecovered part of the money taken from the victim is REDUCED to P19,300; and (c) The award for moral damages is REDUCED from P100,000 to P50,000.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELICISIMO NARVASA, JIMMY ORANIA and MATEO NARVASA, accused, FELICISIMO NARVASA and JIMMY ORANIA appellants. DECISION PANGANIBAN, J.: What crime or crimes are committed when a killing is perpetrated with the use of unlicensed firearms? In the absence of the firearms themselves, may illegal possession of firearms be proven by parol evidence?

The Case

Appellants Felicisimo Narvasa and Jimmy Orania seek the reversal of the October 11, 1996 Decision[1] of the Regional Trial Court of Alaminos, Pangasinan, in Criminal Case Nos. 2629-A, 2648-A and 2646-A, finding them guilty beyond reasonable doubt of illegal possession of firearms in its aggravated form and sentencing them to reclusion perpetua.

Assistant Provincial Prosecutor Emiliano A. Rabina filed three Informations[2] against the appellants and their co-accused, Mateo Narvasa. In Criminal Case No. 2648-A, the Amended Information filed on November 10, 1993 charged Felicisimo Narvasa (in conspiracy with the other accused) with aggravated illegal possession of firearm allegedly committed as follows: That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody an M-14 Rifle without first securing the necessary license or permit from the lawful authorities and which firearm in conspiracy with Jimmy Orania and Mateo Narvasa was used in the killing of one SPO3 Primo Camba, victim in Crim. Case No. 2629-A. In Criminal Case No. 2646-A, Jimmy Orania (in conspiracy with the other accused) was charged with aggravated illegal possession of firearm in the Amended Information which reads: That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody a .30 U.S. Carbine without first securing the necessary license /and/or permit from the lawful authorities and which firearm in conspiracy with Mateo Narvasa and Felicisimo Narvasa was used in the killing of SPO3 Primo Camba, victim in Crim. Case No. 2629-A. In Criminal Case No. 2629-A, Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa were charged with homicide allegedly committed as follows: That on or about February 6, 1992, at Sitio Bugtong, [B]arangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, armed with high powered guns, did then and there willfully, unlawfully, and feloniously shoot SPO3 PRIMO CAMBA which caused his instantaneous death as a consequence, to the damage and prejudice of his heirs. Felicisimo Narvasa and Jimmy Orania were arrested, but Mateo Narvasa remained at large. When arraigned, the two appellants, assisted by their counsel,[3] pleaded not guilty.[4] Trial proceeded in due course. Thereafter, the court a quo rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, in consideration of the foregoing premises and the evidence presented, this Court finds both accused Felicisimo Narvasa in Criminal Case No. 2648-A and Jimmy Orania in Criminal Case No.2646-A [g]uilty beyond reasonable doubt of the crime of [i]llegal [p]ossession of [f]irearms in its aggravated form in these cases and therefore, both accused are sentenced to death penalty but for reasons that the law at that time of the commission of the crime prohibits death sentence penalty, these two accused therefore shall each suffer the sentence of single, indivisible penalty of reclusion perpetua and are ordered to pay jointly and severally the heirs of the victim the amount of P50,000.00 as death indemnity and moral damages of P100,000.00 each, plus cost. In Criminal Case No. 2629-A for [h]omicide, this Court has considered this case as [a] necessary component of the crimes of [i]llegal [p]ossession in their aggravated form, as the same is merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in [its] aggravated form, which is the graver offense. With respect to accused Mateo Narvasa, since he has not been arrested and never brought to the jurisdiction of this Court, this case in the meantime, is ordered archived insofar as said accused Mateo Narvasa is concerned. Let an Alias Warrant of Arrest issue as against accused Mateo Narvasa. The [b]ailbond posted by accused Felicisimo Narvasa is hereby ordered cancelled. Appellants counsel then filed a Notice of Appeal to the Court of Appeals.[5] In an Order[6] dated October 24, 1996, the trial court deemed the appeal filed by Felicisimo Narvasa and Jimmy Orania perfected, and effected the transmittal of the case records to the Court of Appeals. Realizing the mistake, the Court of Appeals subsequently forwarded the records to this Court.[7]

The Facts Evidence for the Prosecution

In his Brief, the solicitor general[8] presented the following narration of facts: On February 6, 1992, after lunch time[,] Villamor Laderas and Ernesto Nagal, councilmen of Quinaoayanan, Bani, Pangasinan, acting on a report that there were missing carabaos, pigs and goats, repaired to the far-flung Sitio Bugtong of the town of Bani and to Sitio Patar of the adjoining town of Agno in Pangasinan, which they reached at around 5:30 that afternoon. Then Laderas and Nagal patrolled the area. Along their way, the two chanced upon the gang of appellants[.] [T]hey were five and three of them were armed. Jimmy Orania was holding a caliber .30 U.S. carbine, Mateo Narvasa was armed with [an] M-16 and Felicisimo Narvasa was carrying an M-14. The two are familiar with those kind[s] of guns as they have seen similar ones carried by policemen. They said, a carbine is shorter than [an] M-14 and [an] M-16 is longer than [an] M-14 (Tsn., April 21, 1994, pp. 1-35, December 13, 1995, pp. 1-12). Laderas and Nagal simply stared at the five and then they proceeded to their way home. Unluckily for the goons, the two councilmen met the two policemen[,] SPO3 Primo Camba and PO2 Simeon Navora who were on patrol and they reported what they saw (Ibid). The two policemen were also responding to a report about the missing animals and they suggested that all of them should track down the armed goons (Ibid). After walking some distance, the four responding men saw the house of appellant Felicisimo Narvasa on a hilly portion around 100 meters away from their path. They decided to investigate at the house but before they could negotiate the distance, they were met by a volley of gunfire. The four[,] who were ten meters apart[,] dove and sought cover (Tsn., April, 1994, p. 11). When the firing took a halt, Laderas had the courage to raise his head and [view] xxx the source of the gunfire. Laderas saw Felicisimo Narvasa in a squatting position aiming at the two policemen and Jimmy Orania was seated near him guiding him at his target. Mateo Narvasa was also aiming his gun. There was an exchange of gunfire as the policemen were able to take proper positions. Unfortunately, SPO3 Camba was hit. Navora summoned Laderas and Nagal to get closer to give aid to Camba. Laderas and Nagal carried Camba as they retreated and, Navora followed moving backwards as he kept firing at their enemies (Ibid, tsn., July 20, 1994, pp. 1-8; tsn., August 15, 1994, pp. 2-30). In the process of the retreat, Camba [bled] profusely and he died even before he could be brought out from the scene of the crime. The body of Camba was left at the scene of the crime while his companions escaped and called for help. Several policemen arrived. Pieces of evidence like empty shells of M-16, M-14 and caliber .30 U.S. carbine bullets were gathered and some policemen were tasked to track down the goons (Exhs. C, C-1 to C-4; tsn., August 16, 1994, pp. 6-10). Shortly thereafter, Felicisimo Narvasa, Glicerio Narvasa, Rederio Narvasa and Jimmy Orania were apprehended. Mateo Narvasa was not found. The four were investigated and paraffin tested. Felicisimo Narvasa and Jimmy Orania were found positive of gunpowder burns (Tsn., August 16, 1994, pp. 1115).[9]

Evidence for the Defense

Appellants deny the charges against them. Felicisimo Narvasa even claims that his son Arnel was shot by Ernesto Nagal, Villamor Laderas and PO2 Simeon Navora. In their Brief,[10] they state: Felicisimo Narvasa testified that he was sleeping at his house on the afternoon of February 6, 1992 when Glicerio Narvasa woke him up and informed him that his son Arnel was shot. He went downstairs and saw his co-accused Jimmy Orania embracing his son. He asked his son who shot him and the latter told his father that it was the group of Councilman Laderas who shot him. He instructed Orania and his wife to bring his son to the hospital but the latter died at the hospital. He further averred that before he slept, Jimmy Orania, Glicerio Narvasa and Rederio Narvasa were in his house drinking two bottles of gin after helping him [fix] the fence in his house. Accused-appellant Narvasa when asked to explain the

charge against him denied committing the same. On March 17, 1992 he gave his affidavit naming Ernesto Nagal, Villamor Laderas and Simeon Navora as the assailants of his son. (TSN, August 8, 1999, pp. 3-17) Jimmy Orania testified that on February 6, 1992, he was in the house of his co-accused Felicisimo Narvasa because he was invited to work on the fence of Felicisimo. After finishing their work, Jimmy[,] together with Glicerio and Rederio Narvasa[,] drunk two bottles of gin. At about 5:00 oclock in the afternoon he instructed Arnel Narvasa to get their carabaos grazing around 100 meters north of the house of Felicisimo, when he heard a gunshot coming from that direction. Arnel shouted for help, so he proceeded to the place where Arnel was shot and carried him to the house of Felicisimo. The latter was awakened by Glicerio and when he asked his son who shot him, Arnel answered that it was the group of Laderas. Jimmy Orania further averred that he knew nothing and denied participation in the killing of Primo Camba. That on the day after February 6, 1992, they were picked up by the police. (TSN, August 20, 1996, pp. 3-13).[11]

Ruling of the Trial Court

The trial court accorded credibility to the prosecution witnesses and held that mere denial could not overcome the prosecution evidence showing that appellants used high-powered firearms to shoot at the prosecution witnesses, thereby resulting in the death of SPO3 Primo Camba. Further supporting said testimonies were the results of the paraffin test conducted on appellants and the recovery of various cartridges and shells matching the firearms purportedly used in the crime. Though these unlicensed firearms were not presented as evidence, the trial court, citing People v. Ferrera,[12] ruled that appellants may still be convicted of illegal possession of firearms. Finally, the trial court found that appellants acted in conspiracy in the killing of Primo Camba. However, on the basis of People v. Barros,[13] it held that the homicide was merely an element of the illegal possession of firearms in its aggravated form; thus, homicide in the present case was taken into account not as a separate crime but as an aggravating circumstance which increased the penalty for the illegal possession of firearms. Hence, this appeal.[14]

Assignment of Errors

In assailing the trial courts Decision, appellants interpose the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCONSISTENT TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE INSUFFICIENCY OF THE PROSECUTIONS EVIDENCE TO WARRANT CONVICTION OF THE ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT OF THE CRIME OF AGGRAVATED ILLEGAL POSSESSION OF FIREARM.[15] In the main, the resolution of this case revolves around the credibility of the prosecution witnesses, the sufficiency of the prosecution evidence and the characterization of the crime committed.

The Courts Ruling

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

First Issue: Credibility of Prosecution Witnesses

Appellants question the credibility of Witnesses Laderas and Nagal because of an alleged inconsistency in their testimonies. Laderas testified that there was an exchange of fire between appellants and PO2 Simeon Navora, while Nagal declared that only the appellants fired. Appellants point out that conflicting testimonies on a material and relevant point casts doubt [on] the truthfulness or veracity[17] of such testimonies. Appellants contention is untenable. The circumstances of the instant case explain the seeming inconsistency in the testimonies of the two witnesses. At the time, they were under fire and in fear of losing their lives. Moreover, they did not take cover in the same place that Navora did. Nonetheless, their uncertainty on whether Navora had fired back is immaterial to the crime charged and too insignificant to impair their credibility. In any event, the Court has ruled that a witness is not expected to remember an occurrence with perfect recollection of minute details.[18]

Second Issue: Sufficiency of the Evidence

Appellants cite People v. Lualhati,[19] wherein this Court ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: the existence of the subject firearm and the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same. Appellants contend that the existence of the firearms was not sufficiently proven because the prosecution had not presented the firearms as evidence. It is necessary, they argue, that said firearms allegedly possessed by the accused-appellants and allegedly used in the killing of Policeman Primo Camba be presented in evidence as those firearms constitute the corpus delicti of the crime with which they are sentenced.[20] Appellants argument is not persuasive. In People v. Lualhati, this Court merely stated that the existence of the firearm must be established; it did not rule that the firearm itself had to be presented as evidence. Thus, in People v. Orehuela,[21] the Court held that the existence of the firearm can be established by testimony, even without the presentation of the said firearm. In the said case, Appellant Orehuela was convicted of qualified illegal possession of a firearm despite the fact that the firearm used was not presented as evidence. The existence of the weapon was deemed amply established by the testimony of an eyewitness that Orehuela was in possession of it and had used it to kill the victim, viz.: We consider that the certification was adequate to show that the firearm used by Modesto Orehuela in killing Teoberto Canizares was a firearm which Orehuela was not licensed to possess and to carry outside his residence on the night that Teoberto Canizares was shot to death. That that firearm was a . 38 caliber pistol was shown by the testimony and report of NBI Ballistician Bonifacio Ayag. When the above circumstances are taken together with the testimony of the eyewitness that Modesto Orehuela was in fact in possession of a firearm and used the same to kill Teoberto Canizares, we believe that accused Orehuela was properly found guilty of aggravated or qualified illegal possession of firearm and ammunition. In the present case, the testimonies of several witnesses indubitably demonstrate the existence of the firearms. Villamor Laderas stated that when he went to Barangay Quinaoayanan, Bani, Pangasinan to investigate a report regarding missing carabaos, pigs and goats, he saw the appellants carrying long firearms In addition, Primo Camba was hit by a bullet, and empty shells of M-16, M-14 and .30 caliber carbine bullets were later on recovered in the vicinity of the place where the shooting occurred. The above facts, duly proven and taken together, sufficiently establish the existence of the subject firearms and the fact that appellants possessed and used said firearms in firing at Villamor Laderas, Ernesto Nagal, and Simeon Navora, as well as Primo Camba who succumbed to the gunshot wound he had sustained. The present case can be distinguished from People v. Navarro[25] wherein the Court held that illegal possession of firearm could not be deemed an aggravating circumstance because the existence of the said firearm was not proven. In said case, a witness testified that he saw appellant shoot the victim with a short firearm. No firearm, however, was presented as evidence, although a gun was recovered from the accused when he was arrested. Moreover, no proof was adduced to show that the

firearm allegedly seen by the witness was the same one recovered by the authorities from the accused. Thus, the Court held: In the case at bar, the Information alleged that on January 5, 1991, the appellant had in his possession an unlicensed firearm which he used in killing Ferdinand Rabadon. This firearm was allegedly recovered on January 5, 1994, when appellant was arrested. However, said firearm was not presented in court or offered as evidence against the appellant. Although Rabago testified that he saw the appellant with a short firearm when the latter shot Rabadon on January 5, 1991 no other proof was presented to show that such gun, allegedly used on January 5, 1991, was the same one recovered on January 5, 1994. The prosecution was not able to establish sufficiently the existence of the subject firearm x x x. In other words, the evidence on the existence of the firearm was beset with doubt and conflict. Such uncertainty is not found in the present case, for the testimonies of several witnesses indubitably established that the subject firearms were in the possession of the appellants. As to proof that appellants had no license or permit to possess the firearms in question, we have held in People v. Villanueva[26] that the second element of illegal possession of firearms can be proven by the testimony or the certification of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the firearm in question. The Court ruled: As we have previously held, the testimony of, or a certification from the PNP Firearms and Explosives Unit that the accused-appellant was not a licensee of the said firearm would have sufficed to prove beyond reasonable doubt the second element of the crime of illegal possession. The prosecution submitted a certification showing that Appellants Felicisimo Narvasa and Jimmy Orania were not licensed firearm holders,[27] a fact that was attested to by SPO4 Roberto Manuel, a member of the PNP stationed at the provincial headquarters of the Pangasinan Provincial Command as Assistant Firearms and Explosives NCPO, who testified thus:

Appellants Responsiblefor Policemans Death

Laderas, Nagal and Navora testified that as their group, which included Primo Camba, approached Felicisimo Narvasas house, they were suddenly fired upon. Camba was hit and it was from that bullet wound that he died. That appellants were responsible for his death is clear from Navoras testimony: Laderas was able to identify their attackers as Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa. As these three directed and fired their guns at Laderas, Nagal, Navora and Camba, there was unity in action and purpose, and thus, conspiracy was present. Although it was not ascertained who among them actually shot Camba, all of them are liable for his death. In conspiracy, the act of one is the act of all.

Third Issue: The Crime

The totality of the evidence shows that appellants possessed unlicensed firearms, which they used in killing Primo Camba. In its Decision, the trial court convicted appellants of [i]llegal [p]ossession of [f]irearms in its aggravated form and considered homicide merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in its aggravated form. Applying People v. Barros[30] to the proven facts, the trial court imposed upon appellants the penalty of reclusion perpetua. However, a new law has in the meanwhile been enacted. Republic Act No. 8294,[31] which imposes a lighter penalty for the crime, provides: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition; Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores

bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three; Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In People v. Molina,[32] this Court en banc explained that RA 8294 considers the use of an unlicensed firearm only an aggravating circumstance in murder or homicide, viz.: Under our ruling in People vs. Quijada, violation of PD 1866 is an offense distinct from murder; appellants should perforce be culpable for two separate offenses, as ruled by the trial court. Fortunately for appellants, however, RA 8294 has now amended the said decree and considers the use of an unlicensed firearm simply as an aggravating circumstance in murder or homicide, and not as a separate offense. Under RA 8294, appellants can be held liable only for homicide [33] and penalized with reclusion temporal. Pursuant to Article 22 of the Revised Penal Code, [34] RA 8294 should be given retroactive effect.

Civil Liability

Consistent with prevailing jurisprudence, appellants are liable to pay, jointly and severally, the heirs of Primo Camba the sum of fifty thousand pesos (P50,000) as indemnity ex delicto for his death. However, the award of two hundred thousand pesos (P200,000) representing moral damages should be deleted since no evidence of anxiety, moral shock, wounded feelings or similar injury was presented during the trial. WHEREFORE, the assailed Decision is hereby MODIFIED. For the death of Primo Camba, Appellants Felicisimo Narvasa and Jimmy Orania are found GUILTY of HOMICIDE with the special aggravating circumstance of using unlicensed firearms. Applying the Indeterminate Sentence Law, they are each sentenced to twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum; and ordered to pay the heirs of Primo Camba P50,000 as death indemnity. However, the award of moral damages is hereby DELETED.

G.R. Nos. 124384-86

January 28, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMENCIANO "OMENG" RICAFRANCA, EDSON RICAFRANCA and GEORGIE RICAFRANCA, accused-appellants. PARDO, J.: The case is an appeal from a decision1 of the Regional Trial Court, Branch 41, Pinamalayan, Oriental Mindoro finding accused Romenciano "Omeng" Ricafranca, Edson Ricafranca and Georgie Ricafranca guilty of murder and sentencing each of them to "life imprisonment", and accused Edson and Georgie Ricafranca guilty of illegal possession of firearms and sentencing each of them to an indeterminate penalty of imprisonment of sixteen (16) years and one (1) day to twenty (20) years. On separate dates2, State Prosecutor Rodrigo B. Lorenzo filed three (3) informations against the accused-appellants in connection with the death of Alfredo dela Cruz one (1) information charged all three (3) accused-appellants with murder, and the two (2) other informations were filed against accused-appellants Edson Ricafranca and Georgie Ricafranca for illegal possession of firearms. The information for murder3 alleges: That on or about the 6th day of January, 1993 in Mangat, Barangay Panikihan, Municipality of Pola, Province of Mindoro Oriental and within the jurisdiction of the Honorable Court, the abovenamed accused, conspiring together, confederating with and mutually helping one another, with intent to kill, with evident premeditation, treachery, taking advantage of superior strength, cruelty, and with the use of firearms and wooden club, did then and there wilfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of ALFREDO DELA CRUZ Y MAGPAYO, by shooting and clubbing him in different parts of his body, thereby inflicting upon him serious and mortal gunshot and other forms of wounds which were the direct and immediate cause of his death, to the damage and prejudice of his heirs in such amount as may be awarded under the provisions of the Civil Code. CONTRARY TO LAW. The information for illegal possession of firearms4 against accused-appellant Edson Ricafranca reads: That on or about the 6th day of January, 1993 in the Municipality of Calapan, Mindoro Oriental and within the jurisdiction of this Honorable Court, the above-named accused did then and

there, wilfully, unlawfully and feloniously take, carry and have in his possession, custody and control, the hereinbelow described firearm: One revolver, "paltik", caliber .38 with Serial No. 650817 without any license or authority to possess and carry the said firearm. CONTRARY TO LAW. The other information for illegal possession of firearms,5 charging accused-appellant Georgie Ricafranca reads: That on or about the 6th day of January, 1993 in the Municipality of Pola, Mindoro Oriental and within the jurisdiction of this Honorable Court, the above-named accused did then and there, wilfully, unlawfully and feloniously take, carry and have in his possession, custody and control the hereinbelow described firearms: (1.) Magnum Revolver, Caliber .22 with Serial No. 121236; and (2.) Llama pistol, Caliber .22 with Serial No. 370365 without any license or authority to possess and carry the said firearm. CONTRARY TO LAW. At their arraignment, the accused-appellants pleaded not guilty to the informations.6 On March 26, 1993, the three (3) cases were consolidated7 before the Regional Trial Court, Branch 41, Pinamalayan, Oriental Mindoro where the murder case against the three (3) accused-appellants was pending. Trial ensued accordingly. The prosecution's version8 of the killing may be related as follows: Sometime prior to the incident in question, Alfredo dela Cruz, an ex-policeman, hired the jeep of accused-appellant Edson Ricafranca for a fee. Days later, or on January 4, 1993, Joel Tagulalap, accused-appellant Edson Ricafranca's conductor, went to the house of Nelia Nambio to collect the P500.00 that Alfredo dela Cruz owed for the rental of the jeep. Nelia Nambio gave him said amount.1wphi1.nt The next day (January 5), Alfredo dela Cruz, accompanied by the Barangay and Kabataang Barangay Chairmen, arrived at Nelia Nambio's residence and loudly complained about the high rental rates charged by accused-appellant Edson Ricafranca: "Sobra nang maningil si Edson. Sobrang suwapang si Edson, lumusot na ang ulo at pati na ang katawan gusto pa rin palusutin. Anak siya ng kaputaputahan!" After saying these fiery words, Alfredo dela Cruz left. About fifteen (15) minutes later, a fuming accused-appellant Edson Ricafranca arrived. He handed over to Nelia Nambio the P500.00 he collected previously and instructed her to return the money to Alfredo dela Cruz. Later in the evening, at around 7:00 p.m., accused-appellant Edson Ricafranca, with a handgun tucked in his right waist and a hand grenade on the left hand, arrived at the house of Rodolfo Madrigal to drink water. Rodolfo Madrigal even quipped that accused-appellant Edson Ricafranca seemed headed for war. Accused-appellant Edson Ricafranca said that he was waiting for Alfredo dela Cruz. Moments later, accused-appellant hailed a tricycle and asked the driver if he had seen Alfredo dela Cruz. Accused-appellant Edson Ricafranca returned to Rodolfo's house, asked for another glass of water and then left. At around 8:30 a.m. of January 6, 1993, accused-appellant Edson Ricafranca flagged down a jeep which was plying the Pola-Socorro road. Alfredo dela Cruz was inside the vehicle. Accused-appellant Edson Ricafranca dragged Alfredo dela Cruz out of the jeep and punched the latter on the mouth. Alfredo dela Cruz ran for safety but accused-appellant Georgie Ricafranca appeared and blocked his path. Accusedappellant Georgie Ricafranca then drew his firearm and fired at Alfredo dela Cruz, but it was accusedappellant Edson Ricafranca who was hit on the right arm. Alfredo dela Cruz darted away while accusedappellants Edson and Georgie Ricafranca gave chase and kept firing at Alfredo dela Cruz. When the fleeing Alfredo was in front of the house of Filipina Luha, accused-appellant Romenciano Ricafranca, the father of accused-appellants Edson and Georgie Ricafranca, emerged from said house. Accusedappellant Romenciano Ricafranca positioned himself at the left side of Alfredo dela Cruz, held the latter's wrist over his neck while accused-appellant Romenciano Ricafranca's right arm embraced

Alfredo dela Cruz's waist. Accused-appellant Edson Ricafranca then aimed his gun at the helpless Alfredo dela Cruz, but accused-appellant Romenciano Ricafranca cautioned accused-appellant Edson Ricafranca as Romenciano Ricafranca might be the one hit Alfredo dela Cruz struggled from accusedappellant Romenciano Ricafrancas's grip and was able to go behind the latter. Accused-appellant Edson Ricafranca fired his gun, hitting accused-appellant Romenciano Ricafranca instead on the right arm. Alfredo dela Cruz scurried towards an uninhabited house. Accused-appellant Romenciano Ricafranca took his gun and fired three (3) shots at Alfredo dela Cruz. Alfredo dela Cruz dropped into a canal and, in a kneeling position, begged for his life. Heedless, accused-appellant Edson Ricafranca took the holster of the gun from accused-appellant Georgie Ricafranca and tucked it in Alfredo dela Cruz' waist. Accused-appellant Edson Ricafranca then struck Alfredo dela Cruz' face with the butt of the gun, fired at Alfredo dela Cruz, kicked him and fired at him again. Insatiated still, accused-appellant Edson Ricafranca whacked Alfredo dela Cruz' face with a piece of wood. Accused-appellant Georgie Ricafranca approached and fired at the already fallen Alfredo dela Cruz. Accused-appellants Edson and Romenciano Ricafranca rode a jeep and left, while accused-appellant Georgie Ricafranca remained at the scene for a while gazing at the lifeless body of Alfredo dela Cruz. Alfredo dela Cruz' cadaver was later brought to the house of Filipina Luha. For its part, the defense claimed that it was Alfredo dela Cruz who went on a shooting rampage.9 While accused-appellant Edson Ricafranca was busy loading ice blocks in his banca near Filipina Luha's house at around 8:00 a.m. of January 6, 1993, Alfredo dela Cruz alighted from a jeep and called him. Alfredo dela Cruz berated accused-appellant Edson Ricafranca: "Ikaw na putang ina mo, nariyan ka pala. Mahal ang pagkakasingil mo bakit sobra ang pasahe sa pag-aarkila ng jeep mo!" Affronted, accused-appellant Edson Ricafranca punched Alfredo dela Cruz on the mouth. Alfredo dela Cruz then drew his gun and shot accused-appellant Edson Ricafranca on the right wrist. Accused-appellant Edson Ricafranca fell in a kneeling position. Accused-appellant Romenciano Ricafranca arrived and upon seeing his son Edson Ricafranca bleeding asked Alfredo dela Cruz what happened. "Ikaw pa!", Alfredo dela Cruz replied, and then he fired at accused-appellant Romenciano Ricafranca who was hit on the upper portion of his left arm. SPO2 Teresito Bautista arrived and tried to pacify Alfredo dela Cruz. Instead, Alfredo dela Cruz aimed his gun at SPO2 Bautista which prompted the latter to repeatedly fire at Alfredo dela Cruz. It so happened that a jeep driven by accused-appellant Georgie Ricafranca passed by the crime scene and, upon seeing his wounded father Romenciano Ricafranca and brother Edson Ricafranca, accusedappellant Georgie Ricafranca loaded the two in the jeep and headed for the hospital in Pinamalayan. The trial court rejected the defense's version and convicted the accused-appellants on the basis of the prosecution evidence. On October 19, 1995, the trial court rendered decision ruling that treachery and cruelty qualified the killing to murder, and that the prosecution has sufficiently established that the accused-appellants Edson and Georgie Ricafranca did not have the license or authority to possess and carry the firearms they used in the killing of Alfredo dela Cruz. The dispositive portion of the trial court's decision thus reads: WHEREFORE, the Court finds all three (3) accused Romenciano, Edson and Georgie, all surnamed Ricafranca GUILTY beyond reasonable doubt of the crime of MURDER defined and penalized in Article 248 of the Revised Penal Code and sentences each of said accused to life imprisonment. All accused are likewise ordered to pay, jointly and/or severally, the heirs of the deceased Alfredo dela Cruz, the amount of TWO HUNDRED THOUSAND (P200,000.00) Pesos by way of indemnity and as actual and moral damages. The Court likewise finds accused Edson Ricafranca guilty beyond reasonable doubt of the crime of illegal possession of one (1) paltik, Cal. .38 with Serial No. 650817 in violation of Section 1 of P.D. No. 1866 and sentences him to suffer imprisonment of sixteen (16) years and one (1) day to twenty (20) years. And finally, the Court likewise finds accused Georgie Ricafranca guilty beyond reasonable doubt of the crime of Illegal Possession of one (1) Magnum revolver Cal. .22 with Serial No. 370365 in violation of Sec. 1 of P.D. No. 1866 and hereby sentences him to suffer imprisonment of sixteen (16) years and one (1) day to twenty (20) years. SO ORDERED.10 Hence, this appeal. Accused-appellants impute to the trial court the following errors: I.

The Honorable Court a quo erred in disregarding the fact that the evidence of the prosecution did not overcome the time-honored presumption of innocence of the accused in criminal cases. II. The court a quo erred in holding that the three accused-appellants are guilty of the crime of Murder. III. The court a quo erred in holding accused-appellants Edson Ricafranca and Georgie Ricafranca guilty of illegal possession of firearm, respectively. We find the guilt of accused-appellants of the murder duly proved. The first two (2) assignments of errors raised by the accused-appellants assailed the trial court's appreciation of the evidence which validated the prosecution's detailed account of Alfredo dela Cruz' death in the morning of January 6, 1993. Being in the best and unmatched position to discern the behavior of the witnesses and to sift the truth from the incredible tales, this Court respects the observation of the trial court that none of the prosecution eye witnesses, SPO2 Bautista, Flynn Rivera, Filipina Luha and Nelia Nambio appeared to be ill-motivated so as to implicate the accused-appellants to the crime.11 On the other hand, the trial court described the defense version as having "all the earmarks of falsehood," "incredible" and "weak and implausible."12 We thus advert to that all-too familiar rule that findings of fact of the trial court, especially its assessment on the credibility of witnesses, are not to be disturbed on appeal. The trial court is in a better position than the appellant court to properly evaluate testimonial evidence because of their unique opportunity to directly observe the witness' demeanor, conduct, deportment and manner of testifying.13 Consequently, accused-appellants' denials and attempt to pin down SPO2 Teresito Bautista as the person who repeatedly fired at Alfredo dela Cruz, crumble in light of the clear, consistent and unequivocal eyewitness accounts identifying them as Alfredo dela Cruz' killers. Mere denials by the accused-appellants, who admitted their presence at the crime scene, can not prevail against the categorical declarations of the prosecution witnesses that it was they who shot Alfredo dela Cruz.14 Like the defense of alibi, a denial is inherently weak and crumbles in the light of positive declarations of truthful witnesses who testified on affirmative matters that the accused-appellants were at the scene of the incident and were the victim's assailants and perpetrators of the crime.15 Conspiracy among the accused-appellants to kill Alfredo dela Cruz was present. Conspiracy need not be proved by direct evidence, it may be inferred from the conduct of all the accused before, during and after the commission of the crime.16 It may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused evincing a joint or common purpose and design, concerted action and community of interest.17 The community of design and action among the accused-appellants is apparent when accused-appellants Georgie and Romenciano Ricafranca made their respective appearances during the assault initiated by accused-appellant Edson Ricafranca and aided the latter in rendering Alfredo dela Cruz defenseless and vulnerable to their deadly attack. Treachery also attended the killing. Alfredo dela Cruz was unarmed and was begging for his life when he was shot by accused-appellant Edson. The stand taken by Alfredo dela Cruz obviously posed no risk to the accused-appellants. We have previously held that treachery is present where the victim was shot while his hands were raised pleading for his life.18 We disagree, however, with the trial court's finding of cruelty. The test for determining the presence of cruelty is whether the accused deliberately and sadistically augmented the victim's suffering. Consequently, there must be proof that the victim was made to agonize before he was killed.19 The fact that accused-appellant Edson clobbered and kicked Alfredo before firing at him does not, to our mind, convincingly show sadism intended to prolong Alfredo dela Cruz' agony before he was finally killed. With respect to the charge of illegal possession of firearms, we acquit accused-appellants Edson and Georgie Ricafranca, following the Court's ruling in "People vs. Bergante"20 as applied once again in the more recent case of "People vs. Guillermo Nepomuceno, Jr."21 In "Bergante" and "Nepomuceno," the Court gave retroactive effect to the amendment introduced by R.A. No. 8294 (which took effect on June 6, 1997)22 on P.D. No. 1866 to the effect that if homicide or murder is committed with the use of an

unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance and shall no longer be separately punished. The "Nepomuceno" case reiterated the explanation in "Bergante," to wit: The violation of P.D. No. 1866 should have been punished separately conformably with our ruling in People vs. Quijada. Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was recently amended by Republic Act No. 8294, otherwise known as "An Act Amending the Provisions of Presidential Decree No. 1866, as Amended." The third paragraph of Section 1 of said Act provides that "if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance." In short, only one offense should be punished, viz., either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance. Being favorable to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the Revised Penal Code, he not being a habitual criminal. As both accused-appellants Edson and Georgie Ricafranca do not appear to be habitual criminals, they also stand to benefit from the retroactive application of the amendment introduced by R.A. No. 8294 on P.D. No. 1866. However, the trial court erred in imposing on accused-appellants the penalty of "life imprisonment" for the crime of murder. As to accused-appellant Romenciano, the imposable penalty is reclusion perpetua under Article 248 of the Revised Penal Code, in the absence of any aggravating or mitigating circumstance that can be appreciated against or favoring him. As to accused-appellants Edson and Georgie Ricafranca, the imposable penalty is alsoreclusion perpetua notwithstanding the fact that their use of unlicensed firearms is an aggravating circumstance that would elevate the penalty to death, inasmuch as the death penalty stood abolished at the time of the commission of the murder. At this juncture, we reiterate that reclusion perpetua and life imprisonment are not synonymous penalties. They are distinct in nature, in duration and in accessory penalties.23 In "People vs. Nang,"24 the Court distinguished the two penalties in this wise: The Code (Revised Penal Code) does not prescribe the penalty of "life imprisonment" for any of the felonies therein defined, that penalty being invariably imposed for serious offenses penalized not by the . . . Code but by the special law. Reclusion perpetua entails imprisonment for at least (30) years, after which the convict becomes eligible for pardon. It also carries with it accessory penalties, namely: perpetual special disqualification, etc. It is not the same as "life imprisonment" which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration. We also have to modify the amount of P200,000.00 which the trial court awarded "by way of indemnity and as actual and moral damages." Actual damages cannot be awarded in the absence of receipts to support the same, in line with the rule that actual damages cannot be allowed unless supported by evidence in the record.25 The Court can only give credence to actual expenses supported by receipts and which appear to have been genuinely expended in connection with the victim's death.26 Moral damages cannot be given, too, since there is no legal basis therefor,27 either testimonial or documentary. Only P50,000.00 by way of death indemnity can be awarded without need of evidence proving the same under the circumstances. WHEREFORE, the judgment appealed from is hereby MODIFIED. In Criminal Case No. P-5046, the conviction of accused-appellants Edson, Georgie and Romenciano, all surnamed Ricafranca, for murder is AFFIRMED. Each of them shall suffer the penalty of reclusion perpetua, with all its accessory penalties, and they shall be solidarily liable to pay the heirs of Alfredo dela Cruz the amount of P50,000.00 as death indemnity. In Criminal Case Nos. C-3803 and P-5075 for illegal possession of firearms, accused-appellants Edson and Georgie Ricafranca are ACQUITTED of said charges.1wphi1.nt

[G.R. No. 126048. September 29, 2000]

PEOPLE OF THE PHILIPPINES, vs. PO2 RODEL SAMONTE. This is an appeal from the decision dated May 13, 1996 of the Regional Trial Court, 5th Judicial Region, Branch 3, Legazpi City, finding accused-appellant Rodel Samonte guilty of Qualified Illegal Possession of Firearms under Presidential Decree No. 1866, thus: WHEREFORE, in view of all the foregoing considerations, this Court finds accused RODEL SAMONTE GUILTY beyond reasonable doubt of aggravated or qualified Illegal Possession of Firearms as defined and penalized under Section 1, Par. 2 of PD No. 1866 which pertinently reads: If homicide or murder is committed with the use of an unlicensed firearms, the penalty of death shall be imposed. And hereby sentences him to suffer the DEATH PENALTY. However, by reason of Section 19(1), Article III of the 1987 Constitution which proscribes the imposition of the Death Penalty, the Death Penalty is hereby reduced to the next lower degree, or RECLUSION PERPETUA. This Court orders the forfeiture of the firearms, cal. .38 snub nose without serial number Exh. F, (paltik), with four (4) live ammunitions, and cal. .38 with serial # INP 1015903, Exh. E with six (6) live ammunitions and other incidental paraphernalia Exhs. J, K, & L found in the possession of the accused in favor of the Philippine National Police (PNP) to be disposed of in accordance with law.[1 The antecedents of the case are as follows: On June 13, 1993, at about 1:00 AM, a shooting incident occurred along Rizal Street, Old Albay District, Legazpi City, resulting in the death of one Siegfred Perez.[2 Herein accused-appellant PO2 Rodel Samonte, a policeman detailed in the Mayors Office of Legazpi City, was one of the suspects in the fatal shooting of Perez. On June 15, 1993, Prosecution witnesses SPO4 Ruben Morales and Police Inspector Ricardo Gallardo confronted accused-appellant in the City Mayors Office and confiscated the latters service revolver. Thereupon, accused-appellant informed Inspector Gallardo that there is another revolver, a caliber .38 paltik in his house which he (Samonte) allegedly recovered from the culprit (apparently referring to Siegfred Perez) on June 13, 1993. Both firearms were submitted to the proper authorities for ballistic examination. The results showed that the caliber .38 slug recovered from the body of deceased Perez was indeed fired from the caliber .38 (paltik) homemade revolver, marked Smith and Wesson, without serial number. Lastly, prosecution witness Elmer Mabilin who chanced upon the above mentioned firearms at the police station on June 15, 1993, identified both to be that of accused appellant Charges of Murder and Illegal Possession of Firearms were separately filed against accused-appellant. This case before us stemmed from the Information dated August 16, 1993, the accusatory portion of which reads: That on or about the 13th day of June, 1993, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously have in his possession an unlicensed .38 Caliber snub nose revolver (paltik) with four (4) live ammunitions, without first securing the necessary and requisite license or permit therefore (sic) from the proper authorities, which firearm was used in shooting SIEGFRED PEREZ resulting in the death of the latter. CONTRARY TO LAW.[6 Upon arraignment on December 9, 1993, accused-appellant, assisted by Atty. Alfredo Kallos, entered a plea of not guilty After the prosecution rested its case, accused-appellant, through counsel, filed a Demurrer to Evidence but the same was denied in an order dated September 21, 1994.[8 While accused-appellant opted not to testify, the defense presented Police Officer Brandon Dyanko and Lilia Santillan to testify on the police blotter regarding the June 13 shooting incident, and on the Memorandum for Preliminary Investigation,[9 respectively. Thereafter, the trial court found accused-appellant guilty of the crime charged and was sentenced accordingly. Hence this appeal with the following assigned errors: The trial court erred as follows:

IN CONVICTING THE ACCUSED-APPELLANT OF AGGRAVATED OR QUALIFIED ILLEGAL POSSESSION OF FIREARMS, THE TRIAL COURT INTERFERED WITH BRANCH 9 OF THE SAME REGIONAL TRIAL COURT WHICH ACQUITTED HIM OF THE CRIME OF HOMICIDE. DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH THE ELEMENTS CONSTITUTIVE OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS, THE TRIAL COURT CONVICTED THE ACCUSED-APPELLANT.[10 In support of the first assignment of error, accused-appellant contends that inspite of the fact that it was made known to the trial court that Branch 9 of the same court (Regional Trial Court of Legazpi City) acquitted him in Criminal Case No. 6336 for homicide, said court still entertained Criminal Case No. 6337 for illegal possession of firearms aggravated by homicide under P.D. 1866. This contention is not tenable. There was no interference by the trial court (Branch 3) with Branch 9 of the same Regional Trial Court which acquitted the accused-appellant of the crime of homicide. As pointed out by the Solicitor General, citing People vs. Quijada,[11 qualified illegal possession of firearms and homicide are distinct and separate offenses punishable under separate laws. Considering that accused-appellant allegedly used an unlicensed firearm in killing Siegfred Perez, he was charged with aggravated illegal possession of firearms. His acquittal of the homicide did not preclude his prosecution for aggravated illegal possession of firearms for they were two distinct and separate crimes. The trial court convicted the accused-appellant of aggravated or qualified illegal possession of firearms as defined and penalized under Section 1, Paragraph 2 of P.D. No. 1866. However, on June 6, 1997, P.D. No 1866 was amended by R.A. 8294 which became effective on July 6, 1997, fifteen days after its publication in Malaya and Philippine Journal on June 21, 1997. Section 1 of PD 1866, as amended by RA 8294, now reads: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess, any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber . 22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. (emphasis ours) In People vs. Quijada,[12 we ruled that violation of Presidential Decree No. 1866 is an offense distinct from murder. With the enactment of Republic Act 8294 amending PD 1866, we have now abandoned the doctrine in Quijada. Applying the new law (RA 8294) in People vs. Molina,[13 we declared, thus: Fortunately, for appellants, however, RA 8294 has now amended the said decree and considers the use of an unlicensed firearm simply as an aggravating circumstance in murder or homicide, and not as a separate offense. The intent of Congress to treat as a single offense the illegal possession of firearm

and the commission of murder or homicide with the use of such unlicensed firearm is clear from the following deliberations of the Senate during the process of amending Senate Bill No. 1148: Senator Drilon. On line 18, we propose to retain the original provision of law which says, If homicide or murder is committed with the use of the unlicensed firearm. And in order that we can shorten the paragraph, we would suggest and move that the use of the unlicensed firearm be considered as an aggravating circumstance rather than imposing another period which may not be in consonance with the Revised Penal Code. So that if I may read the paragraph in order that it can be understood, may I propose an amendment to lines 18 to 22 to read as follows: If homicide or murder is committed with the use of the unlicensed firearm, SUCH USE OF AN UNLICENSED FIREARM SHALL BE CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE. Senator Santiago. Mr. President. The President. With the permission of the two gentlemen, Senator Santiago is recognized. Senator Santiago. Will the principal author allow me as co-author to take the [f]loor to explain, for the information of our colleagues, the stand taken by the Supreme Court on the question of whether aggravated illegal possession is a complex or a compound offense : May I have the [f]loor? Senator Revilla. Yes, Mr. President. Senator Santiago. Thank you. In 1995, the Supreme Court held that when the crime of killing another person is committed with the use of an unlicensed firearm, the ruling in the case of People v. Barros was that the crime should only be illegal possession of firearm in its aggravated form. But in the later case, in May 1996, in the case of People v. Evangelista, the court apparently took another position and ruled that when a person is killed with the use of an unlicensed firearm, it is possible to file two separate information[s] one for murder and one for illegal possession of firearms. In other words, in two successive years, the Supreme Court issued two different ways of treating the problem. The first is to treat it as one crime alone in the aggravated form, and the second is to treat it as two separate crimes. So at this point, the Senate has a choice on whether we shall follow the 1995 or the 1996 ruling. The proposal of the gentleman, as a proposed amendment, is to use the 1995 ruling and to consider the offense as only one offense but an aggravated form. That could be acceptable also to this co-author. The presiding Officer [Sen. Flavier.] So, do I take it that the amendment is accepted? Senator Revilla. Yes, it is accepted, Mr. President. The Presiding Officer [Sen. Flavier.] Thank you. Is there any objection to the amendment? [Silence] There being none, the amendment is approved. Although the explanation of the legal implication of the Drilon amendment may not have been very precise, such modification, as approved and carried in the final version enacted as RA 8294, is unequivocal in language and meaning. The use of an unlicensed firearm in a killing is now merely an aggravating circumstance in the crime of murder or homicide. This is clear from the very wordings of the third paragraph of Section 1 of RA 8294, which reads: If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Furthermore, the preceding paragraphs, also in Section 1, state that the penalties for illegal possession of firearms shall be imposed provided that no other crime is committed. In other words, where murder or homicide was committed, the separate penalty for illegal possession shall no longer be meted out since it becomes merely a special aggravating circumstance. Under the amendment, if homicide or murder is committed with the use of an unlicensed firearm, such use of the same should only be considered as an aggravating circumstance.[14 Similarly, the records of the present case bare just that. From the information alone, it is evident that the crime of Illegal Possession of Firearms was attended by another crime the killing of Siegfred Perez. In fact, during the presentation of evidence for the

prosecution, it is revealed that the evidence offered were those used in the other case against accused-appellant.[15 The defense likewise showed that a separate case for murder was indeed instituted.[16 While the crime of Illegal Possession of Firearms in the present case had been committed on June 13, 1993, we should give retroactive application to RA 8294 which considers the use of an unlicensed firearm in the killing of the victim as a mere aggravating circumstance, as it is advantageous to accused-appellant.[17 Even granting that a simple case of illegal possession of firearms may be permitted against accused-appellant, the same must still fail, for the prosecution neglected to show any proof that the questioned firearm was unlicensed. The fact that the subject firearm is a paltik revolver is of no consequence. In People vs. De Vera, Sr. [18 where the subject firearm was a mere sumpac, we did not dispense with the requirement of proving the same to be unlicensed.[19 Withal, an acquittal is in order. WHEREFORE, the appeal is GRANTED. Accused-appellant PO2 Rodel Samonte is ACQUITTED of the crime of Illegal Possession of Firearms under PD 1866, as amended by RA 8294. His immediate release from prison is hereby ordered unless he is held for other legal cause. The Director of Prisons is ordered to report within ten (10) days his compliance with this decision.

G.R. No. 110569 December 9, 1996 DIOSDADO MALLARI, vs. THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, Given credence by respondent Court of Appeals is the following narration of the factual antecedents of this case by the People. Sometime on December 27, 1990, at around 2:30 p.m., Pat. Manipon and Pfc. Esguerra, who were both then assigned at the Capas Police Station, received reliable information that appellant Diosdado Mallari, who has a standing warrant of arrest in connection with Criminal Case No. 471 for Homicide in 1989, was seen at Sitio 14, Sta. Rita, Capas, Tarlac (tsn, April 18, 1991, pp. 3-4; June 27, 1991, p. 3). Immediately upon receipt of such information. Pfc. Manipon, accompanied by Pat. Esguerra and Pat. Narciso Sirnbulan, with personal knowledge of the existence of a standing warrant of arrest against appellant in connection with Criminal Case No. 471 for Homicide, immediately proceeded to Sitio 14, Sta. Rita, Capas, Tarlac. Upon reaching the place, the arresting officers surrounded the house of appellant, arrested him and told him to remain stationary. Thereupon, the arresting officers searched him and found a homemade gun (paltik) with one M-16 live ammunition (tsn, April 18, 1991, pp. 5-6, 8; June 27, 1991, pp. 3-5, 7). Appellant was handcuffed and brought to the Capas Police Station where he was endorsed to the chief investigator while the homemade gun and live ammunition were endorsed to the property custodian. The incident was then entered in the police blotter after which the spot and investigation reports were prepared (tsn, June, April 18, 1991, p. 5, 10; June 27, 1991, p. 6). 1 After investigation, the petitioner was charged with the crime of Illegal Possession of Firearms and Ammunition, and pleaded not guilty on arraignment. Trial on the merits ensued, after which, the Regional Trial Court of Capas, Tarlac convicted petitioner of the crime charged, as follows: WHEREFORE, accused Diosdado Mallari is hereby found guilty beyond reasonable doubt of the crime of Illegal Possession of Firearms and Ammunitions and hereby sentences him to suffer an indeterminate penalty of seventeen years, four months and one day as minimum to eighteen years and eight months as maximum. Accused, who is a detention prisoner is given full credit for the period of his preventive imprisonment. after compliance with Article 29 of the Revised Penal Code.

SO ORDERED.

Assailed in this petition for review on certiorari is the decision of respondent Court of Appeals affirming in toto the abovequoted decision of the trial court. In its decision, the Court of Appeals held that the testimonies of the prosecution witnesses, Pfc. Manipon and Pat. Esguerra "unequivocally proved that the handgun (paltik) and the live M-16 ammunition were recovered from the person of the appellant (herein petitioner)". 3 The Court of Appeals further held that the search conducted on the petitioner and the seizure of the subject firearm and ammunition were done on the occasion of a lawful arrest as there was then an outstanding warrant for petitioner's arrest in Criminal Case No. 471. 4 It likewise found that petitioner was arrested while committing the crime of illegal possession of firearms in the presence of the police authorities. Thus, anent petitioner's insistence that there was no standing warrant for his arrest, thereby making the search and seizure invalid, the Court of Appeals stated that, "under the prevailing factual milieu, even in the absence of a warrant, still appellant's arrest would fall squarely within the context of Rule 113, Sec. 5 (b), Rules of Court . . ." 5 which cites the instances when a warrantless arrest may be valid. In seeking the reversal of his conviction, petitioner questions the factual finding of the Court of Appeals that at the time of his arrest, there was a standing warrant against him in Criminal Case No. 471. Petitioner posits that the absence of the requisite warrant is fatal and renders the search and seizure unlawful. Corrolarily, the hand gun and ammunition seized from him are inadmissible in evidence. Petitioner also contends that it was error for the Court of Appeals to conclude that the search and seizure could be validly effected as it was done on the occasion of a lawful warrantless arrest, particularly, while in the act of committing the crime of illegal possession of firearms in the presence of the arresting officers. Finally, petitioner claims that even assuming that the handgun and ammunition had in fact been found in his possession, the prosecution failed to prove that he had no license therefor and absent this essential element of the crime of illegal possession of firearms, it was manifest error for the Court of Appeals to uphold his conviction. The threshold issue is factual: whether or not there indeed existed a standing warrant for the arrest of the petitioner. At the outset, this Court reiterates the general rule that when supported by substantial evidence, factual findings of the Court of Appeals are final and conclusive and may not be reviewed on appeal. 6 A careful scrutiny of the records of the case at bench leads this Court to concur with the Court of Appeals in its finding that when the petitioner was arrested, there was then a standing warrant of arrest against him in connection with Criminal Case No. 471. This fact is manifest from the testimonies of the arresting officers which the defense failed to rebut during trial. Pfc. Danilo Manipon: Q When you arrested Diosdado Mallari Mr. witness, were you carrying a warrant of arrest then? A No, sir. Q Neither you did not have with you a seize and search warrant and despite the fact that you have no search and seize warrant you have still pursued in getting the ammunition you have just mentioned, the home made gun and the live bullet? A Yes, sir. COURT: You are referring to what case? A Homicide, ma'am, Criminal Case No. 471. COURT: Alright. Q Was the seizure of the home made gun related to the warrant of arrest being issued by this honorable court with respect to criminal case No. 471?

COURT: Will you clarify, I heard him saying that he did not have a warrant of arrest, is that correct? A Yes, ma'am. COURT: What about with respect to Criminal Case No. 471 you do not have a warrant of arrest issued by this court? A There was, ma'am, I know that there was a warrant of arrest issued, that is why we proceeded to Sitio 14, ma'am. COURT: Alright you proceeded to Sitio 14 because of the warrant of arrest issued by this court to apprehend Diosdado Mallari in Criminal Case No. 471, is that correct? A Yes, ma'am. Pat. Jose Esguerra: Q Do you have with you at the time when you arrested or when you seized the gun and the live ammunition, a search and seize warrant? A None, your honor. COURT: Q Did you have with you the warrant of arrest you mentioned with respect to CR. No. 471? A When we went to him, we did not have a warrant of arrest because we were in a hurry but when we returned, we reached the warrant officer, your honor. Q Where did you return? A When we returned to the Capas Police Station there was the warrant officer already, your Honor. Proceed. ATTY. DULDULAO: Q You said you did not bring the warrant of arrest when you arrested the accused how did you come to know that Diosdado Mallari was indeed the accused despite the fact that you did not bring with you the warrant of arrest then? A When we went there, sir, we did not have a warrant of arrest because we were in a hurry if we will wait our warrant officer, we may not reach Diosdado Mallari, but we know that he has a standing warrant of arrest. 8 [Emphasis provided] Further bolstering the arresting officers' testimonies is the absence of any motive on their part to falsely testify against the petitioner. And it has been repeatedly held that without proof of such motive, law enforcers are presumed to have regularly performed their duties. 9 Thus, absent strong and
7

[Emphasis supplied]

convincing proof to the contrary, this Court is bound by the presumption that the arresting officers were aware of the legal mandates in effecting an arrest and strictly complied with the same. At this juncture, the Court would like to stress that this is not a case of a warrantless arrest but merely an instance of an arrest effected by the police authorities without having the warrant in their possession at that precise moment. Finding as it does, this Court deems it unnecessary to delve into the applicability of Section 5, Rule 113 of the Rules of Court and on the merits of both the petitioner's and the Office of the Solicitor General's arguments with respect thereto. The applicable provision is not Section 5, Rule 118 of the Rules of Court on warrantless arrests, but Section 7, Rule 113 which provides as follows: Sec. 8. Method of Arrest by officer by virtue of warrant When making an arrest by virtue of a warrant the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity so to inform him or when the giving of such information will imperil the arrest. The officer need not have the warrant in his at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable." [Emphasis supplied] The abovequoted rule clearly allows a police officer to effect arrest without the warrant in his possession at the time of the arrest. Thus, appellant's arrest being lawful, the search and seizure made incidental thereto is likewise valid, albeit conducted without a warrant. 10 In the case of People v. Acol, 11 where the unlicensed firearms were found when the police team apprehended the accused for robbery and not for illegal possession of firearms and ammunition, this Court held that the unlicensed firearms may be seized without the necessity of obtaining a search warrant. Expounding thereon, it stated that: . . . The illegality of the search is independent from the illegal possession of prohibited arms. The illegality of the search did not make legal an illegal possession of firearms. When, in pursuing an illegal action or in the commission of a criminal offense, the offending police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty and the taking of the corpus delicti. 12 Finally, petitioner contends that the prosecution failed to discharge its burden of proving that he did not have the requisite license for the firearm and ammunition found in his possession. Anent this contention, the Office of the Solicitor General does not even attempt to point out any evidence on record of petitioner's non-possession of a license or permit for there really is no such evidence. It relies on the theory that as the firearm involved is a homemade gun or "paltik" and is illegal per se, it could not have been the subject of license. 13 This, according to the Solicitor General, dispenses with the necessity of proving that petitioner had no license to possess the firearm. This is where the prosecution's case fails and miserably so. This Court has ruled that: We do not agree with the contention of the Solicitor General that since a paltik is a homemade gun, is illegally manufactured as recognized in People vs. Fajardo, and cannot be issued a license or permit, it is no longer necessary to prove that it is unlicensed. This appears to be at first blush, a very logical proposition. We cannot, however, yield to it because Fajardo did not say that paltiks can in no case be issued a license or permit and that proof that a firearm is a paltik dispenses with proof that it is unlicensed. 14 In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof,viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. 15 The latter is a negative fact which constitutes an essential ingredient of the offense of illegal possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond reasonable doubt. 16 In the case at bench, the testimony of a representative of, or a certification from the PNP (FEU) that petitioner was not a licensee of the said firearm would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession. 17 The absence of the foregoing is fatal to the prosecution's case and renders petitioner's conviction erroneous. True that in the case of People v. Mesal 18, this Court dispensed with a certification from the Firearms and Explosives Unit (FEU) of the Philippine National Police (PNP) to establish the alleged lack of license

or permit on the part of the accused-appellant to possess the M-14 rifle found in his possession. This was, however, premised on the fact that: The records reveal that the allegation was successfully substantiated by other evidence which firmly and undisputably established that accused-appellant did not have and could not possibly have, the requisite license or authority to possess the M-14 rifle concerned. Technical Sgt. Alfredo Romasanta, Supply Officer of the PC-INP 253rd PC Company, testified that the rifle concerned is the type of weapon which only military men are authorized to possess . . . 19 The above enunciated doctrine is not applicable to this case. The records are bereft of any evidence similar to that offered by the prosecution in Mesal to prove that the petitioner "did not have and could not possibly have" the requisite license or authority to possess the "paltik" and the M-16 live ammunition. In view of the foregoing, the petition is hereby GRANTED and the assailed decision is REVERSED and SET ASIDE. Petitioner Diosdado Mallari is hereby ACQUITTED for insufficiency of evidence aid ordered immediately released unless there are other legal grounds for his continued detention. SO ORDERED.