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PEOPLE VS.

VENERACION October 12, 1995 by taking ANGEL ALQUIZA y LAGMAN into a warehouse,
covering her mouth, slashing her vagina, hitting her head
[GRN 119987-88 October 12, 1995] with a thick piece of wood and stabbing her neck did then
and there wilfully, unlawfully and feloniously have camal
THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. knowledge of the person of said ANGEL ALQUIZA y
LORENZO B. VENERACION, Presiding Judge of the Regional LAGMAN, a minor, seven (7) years of age, against the
Trial Court, National Capital Judicial Region, Branch 47, latter's will and consent and on said occasion the said
Manila, HENRY LAGARTO y PETILLA and ERNESTO ABUNDIO LAGUNDAY, a.k.a. 'LANDO' and others, caused
CORDERO, respondents. her fatal injuries which were the direct cause of her death
immediately thereafter.
SECOND DIVISION
CONTRARY TO LAW.
APPEARANCES OF COUNSEL
Subsequently thereafter, Ernesto Cordero y Maristela,
The Solicitor General for petitioner. a.k.a. 'Booster,' of 1198 Sunflower St., Tondo, Manila,
Rolando Manlangit y Mamerta, a.k.a. 'Lando,' of 1274
Paterno L. Esmaquel for respondent Ernesto Cordero. Kagitingan St., Tondo, Manila, Richard Baltazar y Alino,
a.k.a. 'Curimao,' also of 1274 Kagitingan St., Tondo, Manila,
Miguel Y. Badando for respondent Henry Lagarto y Petilla. and Catalino Yaon y Aberin, a.k.a. 'Joel,' of 1282 Lualhati
St., Tondo, Manila were accused of the same crime of Rape
DECISION with Homicide in an Information dated August 11, 1994,
docketed as Criminal Case No. 94-138138, allegedly
KAPUNAN, J.: committed as follows:

The sole issue in the case at bench involves a question of That on or about the 2nd day of August, 1994, in the City
law. After finding that an accused individual in a criminal of Manila, Philippines, the said accused conspiring and
case has, on the occasion of Rape, committed Homicide, is confederating with ABUNDIO LAGUNDAY Alias'M' JEOFREY
the judge allowed any discretion in imposing either the and HENRY LAGARTO y PETILLA who have already been
penalty of Reclusion Perpetua or Death? charged in the Regional Trial Court of Manila of the same
offense under Criminal Case No. 94-138071, and helping
The facts antecedent to the case before this Court, as one another, with treachery, taking advantage of their
narrated by petitioner,1 involve the perpetration of acts so superior strength and nocturnity and ignominy, and with
bizarre and devoid of humanity as to horrify and numb the the use of force and violence, that is, by taking ANGEL
senses of all civilized men. ALQUIZA y LAGMAN into a pedicab, and once helpless,
forcibly bringing her to a nearby warehouse, covering her
On August 2, 1994, the cadaver of a young girl, later mouth, slashing her vagina, hitting her head with a thick
identified as Angel Alquiza wrapped in a sack and yellow piece of wood and stabbing her neck, did then and there
table cloth tied with a nylon cord with both feet and left wilfully, unlawfully and feloniously have carnal knowledge
hand protruding from it was seen floating along Del Pan St. of the person of said ANGEL ALQUIZA y LAGMAN, a minor,
near the comer of Lavesares St., Binondo, Manila. seven (7) years of age, against the latter's will and consent
and on said occasion the said accused together with their
When untied and removed from its cover, the lifeless body confederates ABUNDIO LAGARTO y PETILLA caused her
of the victim was seen clad only in a light colored duster fatal injuries which were the direct cause of her death
without her panties, with gaping wounds on the left side of immediately thereafter.
the face, the left chin, left ear, lacerations on her genitalia,
and with her head bashed in. CONTRARY TO LAW.

On the basis of sworn statements of witnesses, booking The two criminal cases were consolidated to Branch 47 of
sheets, arrest reports and the necropsy report of the the Regional Trial Court of Manila, presided over by
victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed respondent Judge.
address, and Henry Lagarto y Petilla, of 288 Area H. Parola
Compound, Tondo, Manila were later charged with the Duly arraigned, all the accused, except Abundio Lagunday
crime of Rape with Homicide in an Information dated who was already dead, (allegedly shot by police escorts
August 8, 1994 filed with the Regional Trial Court of Manila, after attempting to fire a gun he was able to grab from
National Capital Judicial Region. Said Information, docketed SPO1 D. Vidad on August 12, 1994), pleaded 'Not Guilty.'
as Criminal Case No 94-138071, reads: Abundio Lagunday was dropped from the Information.

That on or about August 2, 1994, in the City of Manila, After trial and presentation of the evidence of the
Philippines, the said accused, conspiring and confederating prosecution and the defense, the trial court rendered a
together with one alias 'LANDO' and other persons whose decision2 on January 31, 1995 finding the defendants
true names, identities and present whereabouts are still Henry Lagarto y Petilla and Ernesto Cordero y Maristela
unknown and helping one another, with treachery, taking guilty beyond reasonable doubt of the crime of Rape with
advantage of their superior strength and nocturnity, and Homicide and sentenced both accused with the "penalty of
ignominy, and with the use of force and violence, that is, reclusion perpetua with all the accessories provided for by
law."3 Disagreeing with the sentence imposed, the City by the Rule of Law, and ought "to protect and enforce it
Prosecutor of Manila on February 8, 1995, filed a Motion for without fear or favor,"4 resist encroachments by
Reconsideration, praying that the Decision be "modified in governments, political parties,5 or even the interference of
that the penalty of death be imposed" against respondents their own personal beliefs.
Lagarto and Cordero, in place of the original penalty
(reclusion perpetua). Refusing to act on the merits of the In the case at bench, respondent judge, after weighing the
said Motion for Reconsideration, respondent Judge, on evidence of the prosecution and the defendant at trial
February 10, 1995, issued an Order denying the same for found the accused guilty beyond reasonable doubt of the
lack of jurisdiction. The pertinent portion reads: crime of Rape with Homicide. Since the law in force at the
time of the commission of the crime for which respondent
The Court believes that in the above-entitled cases, the judge found the accused guilty was Republic Act No. 7659,
accused Lagarto and Cordero have complied with the legal he was bound by its provisions.
requirements for the perfection of an appeal.
Consequently, for lack of jurisdiction, this Court cannot Section I I of R.A. No. 7659 provides:
take cognizance of the Motion for Reconsideration of the
Public Prosecutor of Manila. Sec. 11. Article 335 of the same Code is hereby amended
to read as follows:
WHEREFORE, the order earlier issued by this Court
regarding the Notices of Appeal filed by both herein Art. 3 3 5. When and how rape is committed. - Rape is
accused is hereby reiterated. committed by having carnal knowledge of a woman under
any of the following circumstances:
The Clerk of this Court is hereby directed to transmit the
complete records of these cases, together with the notices 1. By using force or intimidation.
of appeal, to the Honorable Supreme Court, in accordance
with Sec. 8, Rule 122 of the Revised Rules of Criminal 2. When the woman is deprived of reason or otherwise
Procedure. unconscious; and

SO ORDERED. 3. When the woman is under twelve years of age or is


demented,
Hence, the instant petition.
The crime of rape shall be punished by reclusion perpetua.
The trial court's finding of guilt is not at issue in the case at
bench. The basis of the trial court's determination Said Whenever the crime of rape is committed with the use of a
accused are further ordered to indemnify, jointly and deadly weapon or by two or more persons, the penalty
severally, the private complainant the sum of P100,000 for shall be reclusion perpetua to death.
the death of the victim, ANGEL ALQUIZA; the sum of
P500,000 for moral damages, and the amount of When by reason or on the occasion of the rape, the victim
P52,000.00 for actual damages representing expenses has become insane, the penalty shall be death.
incurred for the wake and funeral of the victim. They are
further ordered to pay the costs of these suits. When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the
SO ORDERED. (ANNEX 'A,' Petition) penalty shall be reclusion perpetua to death.

of guilt and its conclusions will only be subject to our When by reason or on the occasion of the rape, a homicide
scrutiny at an appropriate time on appeal. We have thus is committed, the penalty shall be death. x x x.6
clinically limited our narration of events to those cold facts
antecedent to the instant case relevant to the Clearly, under the law, the penalty imposable for the crime
determination of the legal question at hand, i.e., whether of Rape with Homicide is not Reclusion Perpetua but Death.
or not the respondent judge acted with grave abuse of While Republic Act 7659 punishes cases of ordinary rape
discretion and in excess of jurisdiction when he failed with the penalty of Reclusion Perpetua, it allows judges the
and/or refused to impose the mandatory penalty of death discretion - depending on the existence of circumstances
under Republic Act No. 7659, after finding the accused modifying the offense committed to impose the penalty of
guilty of the crime of Rape With Homicide. either Reclusion Perpetua only in the three instances
mentioned therein. Rape with homicide is not one of these
We find for petitioner. three instances. The law plainly and unequivocably
provides that "[w]hen by reason or on the occasion of
Obedience to the rule of law forms the bedrock of our rape, a homicide is committed, the penalty shall be death."
system of Justice. If judges, under the guise of religious or The provision leaves no room for the exercise of discretion
political beliefs were allowed to roam unrestricted beyond on the part of the trial judge to impose a penalty under the
boundaries within which they are required by law to circumstances described, other than a sentence of death.
exercise the duties of their office, then law becomes
meaningless. A government of laws, not of men excludes We are aware of the trial Judge's misgivings in imposing
the exercise of broad discretionary powers by those acting the death sentence because of his religious convictions,
under its authority. Under this system, judges are guided While this Court sympathizes with his predicament, it is its
bounden duty to emphasize that a court of law is no place SO ORDERED.
for a protracted debate on the morality or propriety of the
sentence, where the law itself provides for the sentence of Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza,
death as a penalty in specific and well-defined instances. Francisco, and Hermosisima, Jr., JJ., concur.
The discomfort faced by those forced by law to impose the
death penalty is an ancient one, but it is a matter upon Narvasa, C.J. and Vitug, JJ, see respective separate
which judges have no choice. Courts are not concerned opinions.
with the wisdom, efficacy or morality of laws. In People vs.
Limaco7 we held that: Regalado, J, with concurring opinion.

[W]hen ... private opinions not only form part of their Davide, Jr., J, I join Mr. Justice Vitug in his separate opinion.
decision but constitute a decisive factor in arriving at a
conclusion and determination of a case or the penalty NARVASA, CJ, concurring:
imposed, resulting in an illegality and reversible error, then
we are constrained to state our opinion, not only to correct I concur with the conclusions and dispositions set forth in
the error but for the guidance of the courts. We have no the opinion of Mr. Justice Kapunan. I draw up this separate
quarrel with the trial judge or with anyone else, layman or opinion merely to address a question which may be raised
jurist as to the wisdom or folly of the death penalty. Today in relation to the appeal taken by the accused from the
there are quite a number of people who honestly believe judgment of conviction rendered by respondent Judge. It
that the supreme penalty is either morally wrong or unwise will be recalled that respondent Judge declined to act on
or ineffective. However, as long as that penalty remains in the merits of motion for reconsideration filed by the
the statute books, and as long as our criminal law provides prosecution - praying that his decision sentencing both
for its imposition in certain cases, it is the duty of Judicial accused to suffer reclusion perpetua be "modified in that
officers to respect and apply the law regardless of their the penalty of death be imposed" - for the reason that
private opinions. It is a well settled rule that the courts are since the accused had already "complied with the legal
not concerned with the wisdom, efficacy or morality of requirements for the perfection of an appeal," the Trial
laws. That question falls exclusively within the province of Court had lost jurisdiction over the cases. It was precisely
the Legislature which enacts them and the Chief Executive that refusal that prompted the institution in this Court of
who approves or vetoes them. the special civil action of certiorari at bar.

The only function of the judiciary is to interpret the laws It is indeed axiomatic that once an appeal is perfected
and. if not in disharmony with the Constitution, to apply from a judgment, jurisdiction is lost by the court rendering
them. And for the guidance of the members of the judiciary the judgment, and jurisdiction over the case passes to the
we feel it incumbent upon us to state that while they as appellate tribunal. This proposition considered, and
citizens or as judges may regard a certain law as harsh, following respondent Judge's reasoning, this Court's
unwise or morally wrong, and may recommend to the directive for the remand of the case "to the Regional Trial
authority or department concerned, its amendment, Court for the imposition of the penalty of death upon
modification, or repeal, still, as long as said law is in force, private respondents," might appear to be open to question,
they must apply it and give it effect as decreed by the since it would require the Trial Court to act in cases over
lawmaking body.8 which it had lost jurisdiction. Such a conclusion is not
warranted.
Finally, the Rules of Court mandates that after an
adjudication of guilt, the judge should impose "the proper The judgment in question is void, and has been annulled
penalty and civil liability provided for by the law on the and set aside by this Court, because rendered "without or
accused."9 This is not a case of a magistrate ignorant of in excess of * * * Jurisdiction or with grave abuse of
the law. This is a case in which a judge, fully aware of the discretion amounting to lack of jurisdiction," in so far as it
appropriate provisions of the law, refuses to impose a imposes, i . n light of the facts found to have been proven
penalty to which he disagrees. In so doing, respondent beyond reasonable doubt, a penalty other than that
judge acted without or in excess of his jurisdiction or with peremptorily prescribed by law, The Judgment being void,
grave abuse of discretion amounting to a lack of the appeal attempted to be taken therefrom is
jurisdiction in imposing the penalty of Reclusion Perpetua inefficacious. The Trial Court may not be deemed to have
where the law clearly imposes the penalty of Death, thereby lost Jurisdiction of the cases. It cannot thus be said
that it is being required by this Court to act in cases over
WHEREFORE, PREMISES CONSIDERED, the instant petition which it has already lost jurisdiction. There exists no legal
is GRANTED. The case is hereby REMANDED to the obstacle to the remand of the cases to it and its
Regional Trial Court for the imposition of the penalty of modification of the Judgment so that it may comply with
death upon private respondents in consonance with the mandatory prescription of the law.
respondent Judge's finding that the private respondents in
the instant case had committed the crime of Rape with REGALADO, J, concurring:
Homicide under Article 335 of the Revised Penal Code, as
amended by Section I I of Republic Act No. 7659, subject to I concur without reservation in the ponencia in this case
automatic review by this Court of the decision imposing the and its directive that the court a quo impose the correct
death penalty. penalty of death as provided by law and consequent to its
findings of guilt on the part of private respondents. Indeed,
this separate opinion which explicates my conformity with penalty as the basis therefor, with this Court closing its
the procedure adopted and the mandate thereof would not eyes to such a flagrant mistake. This time the cart
have been necessary were it not for the contrary precedes the horse. True, an appeal throws the judgment a
observations that the petition herein should either have quo open for review and the Court may raise the penalty to
been dismissed or consolidated with the criminal case the appropriate punitive level. But, as the People
elevated on appeal by private respondents. pertinently observes, what is there to prevent appellants
from withdrawing their appeal upon sensing from the
Such digression from the judgment unconditionally arguments that, instead of the acquittal or reduced penalty
accepted by the other members of the Court does not aspired for, the ultimate denouement would be the death
impress me as being concordant with the Rules of Court sentence?
and decisional law. What is before us in the case at bar is
an original civil action invoking the extraordinary writ of Jurisprudence tells us that before the case is submitted for
certiorari for the imposition of the correct penalty specified decision, an appellant may withdraw his appeal in the
by law, which legal duty respondent judge refused to appellate court.4 Generally, the withdrawal of an appeal
comply with in grave abuse of his Judicial discretion.1 On before the filing of the appellee's brief in this Court is
the other hand, the criminal case with which it is sought to permitted.5 Assuming that the Court denies the withdrawal
be consolidated is an appellate recourse wherein the relief of the appeal in order that the mistake in the penalty
sought is primarily the reversal of the finding of guilt and imposed may be corrected in the Judgment of the case on
the absolution of private respondents. the merits,6 why should the appellate course of the
proceedings still have to be subject to such contingencies -
Evidently, the determinative issues involved and the with the inevitable waste of time and effort in the
limited relief sought in the present special civil action are formulation of alternative theories in two sets of pleadings
entirely different from the issues for resolution and the by both parties - when with the decisive sweep of the
modificatory judgment desired in the appealed criminal adjudgment here the doubts are dissipated and the real
case. The basic rule in consolidation of cases in civil areas of contention are laid bare?
procedure 2 requires, among others, the same subject
matter and the existence of a common question of law or Nor is that all. Appellants have come to this Court through
fact. This is essentially the same as the rule on the medium of an appeal by writ of error from a judgment
consolidation in criminal procedure3 which contemplates of the trial court imposing the wrong penalty of reclusion
charges for offenses founded on the same facts, or forming perpetua. If the mistake in the penalty is now rectified with
part of a series of offenses of similar character. the death sentence being substituted therefor, as
undeniably it should be, then the case will consequently be
Also, these reglementary requisites for consolidation before this Court on automatic review. That provision
require two or more ordinary civil or criminal actions, and calling for automatic review when capital punishment is
not a special civil action in combination with the former. inflicted 7 serves equally the interests of both the defense
The impropriety of the latter situation is specially and the prosecution through protective features
underscored where the resolution of the controversy in the established by case law.
special civil action is a pre-judicial matter in the appealed
criminal case. These considerations apply to both the trial Thus, even if the accused had unnecessarily appealed from
courts in the exercise of original jurisdiction and to the the Judgment imposing the penalty of death and he
appellate courts in the implementation of revisory power. thereafter withdraws his appeal, the automatic review of
the case shall nonetheless proceed, albeit without the
The purpose of the present original action for certiorari is benefit of briefs or arguments from the accused.8 The
to have the erroneous judgment of respondent judge automatic review of the case shall proceed even if the
erroneous because he imposed the wrong penalty - death convict shall escape,9 as an exception to the
corrected on that score in the first instance. After such provisions of Section 8, Rule 124, and such automatic
correction shall have been effected, then the appeal from review cannot be waived.10 The aforementioned beneficial
his judgment shall proceed for the desired review by this effects are not provided for and may not be availed of by
Court to determine the guilt or innocence of appellants. the accused in an ordinary appeal to this Court.
The corrective action must proceed first and the resultant
amended judgment containing the proper penalty shall be The automatic review of the death sentence ensures the
the basis for the review as to whether appellants are truly right of the condemned person to procedural due process
guilty and have to be meted that ultimate penalty. To have on appeal, and safeguards the interests of the State by
the certiorari action proceed simultaneously and in exacting the corresponding penal sanction decreed by law.
unification with the appellate proceeding strikes me as an The disposition adopted by the Court in this case subserves
aberrant procedure, While it does not exactly square with the ends of these fundamental policies, hence my
the figurative posture of putting the cart before the horse, unqualified assent thereto.
it does result in the same absurdity of both the horse and
the cart moving abreast at the same time along the same VITUG, J., dissenting:
Judicial path.
The ponencia itself indicates that the case against the
It would even be worse if, as suggested, this certiorari convicted accused is already on appeal before this Court.
action should be dismissed and the appellate review be Thus, the instant petition, in my view, has become
conducted with the judgment containing an unauthorized academic since an appeal brings the case wide open for
review and consideration. A ruling on the petition would be THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF
precipitate and might be so perceived as peremptory on AND APPELLEE, VS. AURELIO LAMAHANG,
the imposition of the death penalty. DEFENDANT AND APPELLANT.

With all due respect, it is my personal view that if the Court 1. CRIMINAL LAW; ATTEMPT TO COMMIT AN INDETERMINAT
is not disposed to dismiss the petition, it should at the very E CRIME.--The attempt which the Penal Code punishes is
least be consolidated with the appealed case. that which has a logical relation to a particular, concrete
offense; that, which is the beginning of the execution
Accordingly, I am constrained, at this time, to vote for the thereof by evert act of the perpetrator leading directly to
dismissal of the petition. its realization and consummation. The attempt to commit
an indeterminate offense, inasmuch as its nature in
1. Rollo, p. 4, Except as to the penalty imposed, petitioner relation to its objective is ambiguous, is not a juridical fact
and respondent court are in agreement as to the essential from the standpoint of the Penal Code.
facts of the case.
2. ID.; ID.-It is not sufficient, for the purpose of imposing
2. Rollo, pp. 24-51. penal sanction, that an act objectively performed should
constitute a mere beginning of execution; it is necessary to
3. Rollo, p. 28, The dispositive portion reads: establish its unavoidable relation, like the logical and
natural relation of the cause and its effect, to the deed
3. Disagreeing which, upon its consummation, will ripen into one of the
crimes defined and punished by the Code; it is necessary
4. Act of Athens (1995), to prove that such beginning of execution, if carried to its
complete termination following its natural course, without
5. Id. being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily
6. Italics supplied.
ripen into a concrete offense.

7. 88 Phil. 36 [1951].
3. ID.; ID.; ATTEMPTED ROBBERY.- In order that a simple
act of entering by means of force or violence another
8. Id., at 43-44.
person's dwelling may be considered as attempted
robbery, it must be shown that the offender clearly
9. Rule 120. Sec I
intended to take possession, for the purpose of gain, of
some personal property belonging to another. In the
1. People vs. Olaes, 105 Phil. 502 (1959); People vs.
present case, there is no evidence in the record from which
Limaco, 88 Phil. 35 (1951); People vs. Carillo, et al., 85 Phil.
such purpose of the accused may reasonably be inferred.
611 (1950).

4. ID.; ID.; ID.-From the fact cstablished and stated in the


2. Section 1, Rule 3 1.
decision, that the accused on the day in question was
3. Section 14, Rule 119. making an opening by mean-, of an iron liar on the wall of
T. Y.'s store, it may only be inferred as a logical conclusion
4. U.S vs. Sotto. 38 Phil 666 (1918), that hi,, evident intention was to enter by means of force
said store against the will of its owner. That his final
5. People vs. Mendoza, 93 Phil. 581 (1953) objective, once be succeeded in entering the store, was to
rob, to cause physical injury to its occupants, or to commit
6. See People vs. Roque, G.R. No. 53470, June 26, 1981, any other offense, there is nothing in the record to justify a
105 SCRA 117. concrete finding.

7. Sec. 10, Rule 122. 5 ID.; ATTEMPTED TRESPASS TO DWELLING.-The fact under
consideration does not constitute attempted robbery but
8. People vs. Villanueva, 93 Phil. 927 (1953). attempted trespass to dwelling (People vs. Tayag and
Morales. 59 Phil., 606 and decisions of the Supreme Court
9. People vs. Vallente, L-37937, September 30, 1986, 144 of Spain therein cited) . The accused may be convicted and
SCRA 495; People vs. Cornelio, et al., L-1289, June 10, sentenced for an attempt to commit this crime, in
1971, 39 SCRA 435. accordance with the weight of the evidence and the
allegations contained in the information.
10. People vs. Daban, L-31429, January 31, 1972, 43 SCRA
185. APPEAL from a judgment of the Court of First Instance of
Iloilo. Paredes,. J.

The facts are stated in the opinion of the court.


[GRN 43530 August 3, 1935]
Honesto K. Bausa for appellant.

Solicitor-General Hilado for appellee.


RECTO, J.: conclusion that his evident intention was to enter by
means of force said store against the will of its owner, That
The defendant Aurelio Lamahang is before this court on his final objective, once he succeeded in entering the
appeal from a decision of the Court of First Instance of store, was to rob, to, cause physical injury to the inmates,
Iloilo, finding him guilty of attempted robbery and or to commit any other offense, there is nothing in the
sentencing him to suffer two years and four months of record to justify a concrete finding.
prision correccional and to an additional penalty of ten
years and one day of prision mayor for being an habitual "It must be borne in mind (I Groizard, p. 99) that in
delinquent, with the accessory penalties of the law, and to offenses not cosummated the material damages is
pay the costs of the proceeding. wanting, the nature of the action intended (accion fin)
cannot exactly be ascertained, but the same must be
At early dawn on March 2, 1935, policeman Jose inferred from the nature of the acts executed (accion
Tomambing, who was patrolling his beat on Delgado and C. medio). Hence, the necessity that these acts be such that
R. Fuentes streets of the City Of Iloilo, caught the accused by their very nature, by the facts to which they are related,
in the act of making an opening with an iron bar on the by the circumstances of the persons performing the same,
wall of a store of cheap goods located on the last named and by the things connected therewith, they must show
street. At that time the owner of the store, Tan Yu, was without any doubt, that they are aimed at the
sleeping inside with another Chinaman. The accused had consummation of a crime. Acts susceptible of double
only succeeded in breaking one board and in unfastening interpretation, that is, in favor as well as against the
another from the wall, when the policeman showed up, culprit, and -which show an innocent as well as a
who instantly arrested him and placed him under custody. punishable act, must not and can not furnish grounds by
themselves for attempted nor frustrated crimes. The
The fact above stated was considered and declared relation existing between the facts submitted for
unanimously by the provincial fiscal of Iloilo, the trial judge appreciation and the offense which said facts are supposed
and the Solicitor-General, as constituting attempted to produce must be direct; the intention must be
robbery, which we think is erroneous. ascertained from the facts and therefore it is necessary, in
order to avoid regrettable instances of injustice, that the
It is our opinion that the attempt to commit an offense mind be able to directly infer from them the intention of
which the Penal Code punishes is that which has a logical the perpetrator to cause a particular injury. This must have
relation to a particular, concrete offense; that, which is the been the intention of the legislator in requiring that in
beginning of the execution of the offense by overt acts of order for an attempt to exist, the offender must commence
the perpetrator, leading directly to its realization and the commission of the felony directly by overt acts, that is
consummation. The attempt to commit an indeterminate to say, that the acts performed must be such that, without
offense, inasmuch as its nature in relation to its objective is the intent to commit an offense, they would be
ambiguous, is not a juridical fact from the standpoint of the meaningless. "
Penal Code. There is no doubt that in the case at bar it was
the intention of the accused to enter Tan Yu's store by Viada (Vol. I, p. 47) holds the same opinion when he says
means of violence, passing through the opening which he that "the overt acts leading to the commission of the
had started to make on the wall, in order to commit an offense, are not punishable except when they are aimed
offense which, due to the timely arrival of policeman directly to its execution, and therefore they must have an
Tomambing, did not develop beyond the first steps of its immediate and necessary relation to the offense."
execution. But it is not sufficient, for the purpose of
imposing penal sanction, that an act objectively performed "Considering - says the Supreme Court of Spain in its
constitute a mere beginning of execution; it is necessary to decision of March 21, 1892-that in order to declare that
establish its unavoidable connection, like the logical and such and such overt acts constitute an attempted offense
natural relation of the cause and its effect, with the deed it is necessary that their objective be known and
which, upon its consummation, will develop into one of the established, or that said acts be of such nature that they
offenses defined and punished by the Code; it is necessary themselves should obviously disclose the criminal objective
to prove that said beginning of execution, if carried to its necessarily intended, said objective and finality to serve as
complete termination following its natural course, without ground for the designation of the offense: * * *."
being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily In view of the foregoing, we are of the opinion, and so hold
ripen into a concrete offense. Thus, in case of robbery, in that the fact under consideration does not constitute
order that the simple act of entering by means of force or attempted robbery but attempted trespass to dwelling
violence another person's dwelling may be considered an (People vs. Tayag and Morales, 59 Phil., 606, and decisions
attempt to commit this offense, it must be shown that the of the Supreme Court of Spain therein cited). Under article
offender clearly intended to take possession, for the 280 of the Revised Penal Code, this offense is committed
purpose of gain, of some personal property belonging to when a private person shall enter the dwelling of another
another. In the instant case, there is nothing in the record against the latter's will. The accused may be convicted and
from which such purpose of the accused may reasonably sentenced for an attempt to commit this offense in
be inferred. From the fact established and stated in the accordance with the evidence and the following allegation
decision, that the accused on the clay in question was contained In the infomatlon: "* * * the accused armed with
making an opening by means of an iron bar on the wall of an iron bar forced the wall of said store by breaking a
Tan Yu's store, it may only be inferred as a logical board and unfastening another for the purpose of entering
said store * * * and that the accused did riot succeed in story of the entire incident from its inception to its
entering the store due to the presence of the policeman on consummation.
beat Jose Tomambing, who upon hearing the noise
produced by the breaking of the wall, promptly approached RESOLUTION
the accused * * *." Under the circumstances of this case
the prohibition of the owner or inmate is presumed. (U. S. AN AUTOMATIC REVIEW of the. decision of the Court of
vs. Ostrea, 2 Phil., 93; U. S. vs. Silvano, 31 Phil., 509; U. S. First Instance of Zamboanga del Sur. Vicente G. Ericta, J.
vs. Ticson, 25 Phil., 67; U. S. vs. Mesina, 21 Phil., 615; U. S.
vs. Villanueva, 18 Phil., 215; U. S. vs. Panes, 25 Phil., 292.) The facts are stated in the opinion of the Court.
Against the accused must be taken into consideration the
aggravating circumstances of nighttime and former Solicitor General Felix V. Makasiar and Assistant Solicitor
convictions,inasmuch as the record shows that several final General Conrado T. Limcaoco for appellee.
judgments for robbery and theft have been rendered
against himand in his favor, the mitigating circumstance of ANTONIO, J.:
lack of instruction. The breaking of the wall should not be
taken into consideration as an aggravating circumstance Automatic review of the decision of the Court of First
inasmuch as this is the very fact which in this case Instance of Zamboanga del Sur, dated December 1, 1967,
constitutes the offense of attempted trespass to dwelling. in Criminal Case No. 3141 in view of the capital
punishment imposed on Rolando Cometa, Rogelio Cometa
The penalty provided by the Revised Penal Code for the and Candelario Bolando. The sentence reads as follows:
consummated offense of trespass to dwelling, if committed
with force, is prision correccional in its medium and "WHEREFORE, the Court finds Francisco Toling, Rolando
maximum periods and a fine not exceeding P1,000 (art. Cometa, Rogelio Cometa, Candelario Bolando, and Hilario
280, par. 2) ; therefore the penalty corresponding to Gahito guilty beyond reasonable doubt of the crime of
attempted trespass to dwelling is two degrees lower (art. Robbery in Band with Homicide, and appreciating the
51), or, aggravating circumstances of in band, nocturnity, dwelling.
and treachery regarding the killing of Isabelo Caseres, with
arresto mayor in its minimum and medium periods. no mitigating circumstance to offset the same, hereby
Because of the presence of two aggravating circumstances imposes the Death penalty on all the defendants.
and one mitigating circumstance the penalty must be
imposed in its maximum period. Pursuant to article 29 of "The defendants are further ordered to return the things
the same Code, the accused is not entitled to credit for robbed or pay the value of P59.45 in case of failure to
one-half of his preventive imprisonment. return the same, to indemnity the heirs of Isabelo Caseres,
in the amount of P6,000.00 to be borne equally by the five
Wherefore, the sentence appealed from is revoked and the defendants, to suffer the accessory penalties of the law,
accused is hereby held guilty of attempted trespass to and to pay the costs."
dwelling, committed by means of force, with the aforesaid
aggravating and mitigating circumstances and sentenced Originally, six (6) persons were accused of the crime of
to three months and one day of arresto mayor, with the Robbery in Band with Homicide in an Information filed in
accessory penalties thereof and to pay the costs. the aforesaid court on June 29, 1966, namely: Francisco
Toling alias Ikong, Rogelio Cometa, alias Celio, Candelario
Avavceña, C. J., Abad Santos, Hull, and Vickers, JJ., concur. Bolando, alias Dodo, Rolando Cometa alias Lando, Emilio
Toling and Hilario Gahito, but only the three afore-named
Judgment revoked and defendant found guilty of appellants appeared for the promulgation of the judgment
attempted trespass to dwelling. on December 19, 1967, because:

(a) Hilario Gahito died in jail on September 26, 1967 and


the case against him was dismissed on December 19,
[GRN L-28548 July l3, 1979.*] 1967;1

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF- (b) Emilio Toling was not brought to court for trial; the
APPELLEE, VS. FRANCISCO TOLING ALIAS IKONG, person arrested as Emilio Toling turned out to be Emilio
ROGELIO COMETA ALIAS CELIO, CANDELARIO Montillano, and was released from custody;2 and (c)
BOLANDO ALIAS DODO, ROLANDO COMETA ALIAS Francisco Toling escaped from the Provincial Jail on
LANDO, EMILIO TOLING AND HILARIO GAHITO, December 1, 1967 and was still at large when the sentence
DEFENDANTS, ROGELIO COMETA ALIAS CELIO, was promulgated.3 He cannot be considered to have
ROLANDO COMETA ALIAS LANDO, AND CANDELARIC appealed also because as to him the sentence has not
BOLANDO ALIAS DODO, defendantsappellants. been promulgated.4
themselves are indicative of their spontaneity and the
truth. As the narration of facts in the extrajudicial The Information wherein the appellants were charged
confessions of Bolando and Cometa will show, the essential reads.
details, except for the alleged plot to kill Isabelo Caseres,
when pieced together are identical and reveal a complete "The undersigned First Assistant Provincial Fiscal of
Zamboanga del Sur, accuses Francisco Toling alias Ikong,
Rogelio Cometa alias Celio, Candelario Bolando alias Dodo, carabao, were trying to reach for the chickens on the
Rolando Cometa allas Lando, Emilio Toling and Hilario eaves of the roof of his house. Upon seeing this, he
Gahito, for the crime of Robbery in Band with Homicide, shouted: "Robbers! Robbers!". Because of his shouts, the
committed as follows: four persons scampered about the premises as far as nine
(9) meters away from his house. Shortly thereafter, he saw
"That at about 11:45 o'clock in the evening of February 5, Isabelo Caseres. a neighbor of his, walking towards his
1966, at Barrio Bag-ong Gutlang, Municipality of Molave, house. He called Isabelo and warned him of the robbers,
Province of Zamboanga del Sur, Republic of the Philippines but as Isabelo was about three (3) meters from his house,
and within the jurisdiction of this Honorable Court, the he was shot by Francisco Toling with a shotgun. Isabelo fell
abovenamed accused, conspiring, confederating together to the ground. Upon seeing this tragic turn of events. he
and mutually helping one another, armed with a home- (Lumpayao), together with his wife, Rosario Larawan, and
made shot gun (paliuntod), a 22 caliber homemade their children, jumped out of their house and ran towards
revolver (paltik), bolos of different sizes and make, with the house of Florencio Caseres, father of Isabelo, about six
intent of gain, by means of form and violence against hundred (600) meters away. On the way, they met Maria
persons and with intent to kill with the use of said firearms, Caseres, wife of Isabelo, who was also running towards her
did then and there wilfully, unlawfully and feloniously shot father-in-law's house because she heard a shot. When they
one Isabelo Caseres, thereby hitting and inflicting gunshot reached the house of Florencio Caseres, he shouted:
wounds in the different parts of his body, which mortal "Compadre, Isabelo was shot." They then proceeded to
gunshot wounds caused his death shortly thereafter and on hide among the bushes nearby.
the same occasion, the said accused enter the dwelling
and/or house of one Francisco Lumpayao, a neighbor of the Early in the following morning, Francisco Lumpayao
deceased Isabelo Caseres and once inside, take and carry returned to his house only to discover in the yard his trunk,
away his personal household belongings without his which in the evening before was inside his house, already
knowledge and consent and against his will, to wit: emptied of its contents, namely: two (2) pairs of pants, two
(2) lady's dresses, four (4) children's dresses, a flashlight, a
"Two (2) Pants, One (1) Polo Shirt, Four (4) Ladies Dresses, necklace, a pair of earrings, and cash in the amount of
Two (2) Children's Dresses, Three (3) Books for grade 2 P1.65. He also found out that three (3) of the books of his
pupils, Four (4) Pieces of Dried Fish, One (1) Flashlight with children were taken. In that same morning, at about 6:00
3 batteries and cash money in different denominations o'clock, Lumpayao saw the remains of the late Isabelo
amounting to One Peso and Sixty Five Centavos P1.65), all Caseres lying in state in the house of Florencio Caseres.
things taken constituting a total amount of Eighty (P80.00)
Pesos, Philippine Currency, to the damage and prejudice of Marcelino Campomanes, farmer, 34 years of age, and
the said owner Francisco Lumpayao, of the aforesaid resident of Barrio Arioga, Molave, Zamboanga del Sur,
amount and also to the damage and prejudice of the Wife testified that at about 12:30 o'clock in the evening of
and Parents of the said deceased Isabelo, Caseres. February 5, 1966, while he was inside his house at the said
barrio, he heard the barking of three dogs. Peeping
"CONTRARY TO LAW." (CFI Record, p. 1.) through the little opening of the window, he saw two
horses running fast, with two persons riding on each horse.
The prosecution sought to establish that at about 11:45 When the horses got near his house, the riders dismounted
o'clock in the evening of February 5, 1966, the accused, and made their horses fight his horse. Thereafter, three of
conspiring and confederating with each other, robbed the the four persons walked toward his house while the fourth
house of Francisco Lumpayao after mortally wounding continued to watch the horses fighting. He noticed that the
Isabelo Caseres who had responded to Lumpayao's call for three persons who went near his house were armed. He
succor. The evidence consisted of the testimonies of recognized them as Francisco Toling, who was armed with
Francisco Lumpayao, Marceline Campomanes and a gun, Hilario Gahito and "Basilio"* Cometa. He did not
Florentine P. Omandam, and the extrajudicial statements recognize the fourth man because he was quite far. He was
of Hilario Gahito, Candelario Belando and Rogelio Comets able to recognize the three men because the moon was
(Exhibits "C", "D", and "E", respectively). To prove the bright - there was a full moon - and the sky was not cloudy.
voluntariness and due execution of Exhibits "C", "D" and After about half an hour, the group left. He added that his
"E", the prosecution introduced the testimonies of place was about two (2) kilometers away from Barrio Bag-
Gualberto B. Bacarro, Municipal Judge of Tambulig, ong Gutlang, the situs of the crime.
Zamboanga del Sur and Acting Municipal Judge of Molave,
Zamboanga del Sur, and Paciano Guillen, Municipal Mayor At about 1:00 o'clock in the afternoon of the following day,
of the same municipality. February 7, 1966, Mr. Florentine Omandam, Provincial
Sanitary Inspector of Zamboanga del Sur, upon the request
According to Francisco Lumpayao, a 34-year-old farmer, of the Chief of Police of Molave, examined the remains of
resident of Bag-ong Gutlang, Molave, Zamboanga del Sur, Isabelo Caseres. After the examination, he issued a
at about 11:45 o'clock in the evening of February 5, 1966, Medico-Legal Report (Exhibit "A"), showing the cause of
he was awakened by the barking of his two dogs at the death of Isabelo as massive hemorrhage, secondary to the
porch of his house. Peeping through a hole on the wall, he six (6) thru and thru bullet wounds. He also issued the
saw near his house four (4) persons, namely Francisco death certificate of Isabelo Caseres (Exhibit "B").
Toling and Candelario Belando, who were astride his
carabao, and the other two, Rolando Cometa and Hilario On the other hand, the- defendants presented their
Gahito, who were standing nearby. Those astride the defense consisting of denials and alibis. Hilario Gahito,
Candelario Bolando and Rogelio Cometa repudiated their neighbor. A few minutes later, a person whose name he
respective extrajudicial statements, all contending that came to know later on as Isabelo Caseres came and
they were mauled or maltreated into signing the same. Francisco Toling shot him. He saw the victim fall down
Anent their alibis, Rolando Cometa, Rogelio Cometa and groaning with pain. Later, the owner of the house,
Francisco Toling tried to prove that on the night in Francisco Lumpayao, with his family, left their house. He
question, they were in the house of Francisco Apa in Barrio got out of Ins biding place and at that juncture, Rolando
Moyo, Buug, which is 131 kilometers from the scene of the Cometa, Rogelio Corneta and Emilio Toling went up the
crime; Candelario Bolando testified that he was in his stairs of said house while he and Francisco Toling remained
house at Barrio Ebarle, Tambulig, 30 kilometers from Bag- on the ground. After that they all went home. Rogelio
ong Gutlang; and Hilario Gahito declared that he was at his Cometa burned some books and other papers, and some
house in Barrio Ariosa. pants and dresses which were taken from the house of
Lumpayao because they might be found in their
The prosecution presented rebuttal evidence and possession. Out of the amount of P1.60 which they got, his
thereafter the case was submitted for decision. share was Fifty Centavos (P0.50), while Francisco Toling
got a necklace. He further stated thereon that the shotgun
When the trial court was preparing its decision it used by Francisco Toling was borrowed by Rogelio Cometa
discovered that the Fiscal inadvertently omitted to present from one Fabian Cometa, father of Rogelio.
as evidence the admission of Rogelio Cometa. Hence, the
court, motu proprio, ordered the reopening of the case to Rogelio Cometa narrated in his extrajudicial statement
enable the Fiscal to offer in evidence the extrajudicial (Exhibit "E") that on the night of February 5, 1966, he was
statement of Rogelio Cometa. Thereafter, the case was in formed by his brother-in-law, Francisco Toling, that he
submitted anew for decision. was hired by his father-in-law, Magno Sejuela, to kill one
Isabela, Caseres of Barrio Bag-ong Gutlang because they
In convicting appellants Rolando Cometa, Rogelio Cometa had a misunderstanding. Francisco Toling told him that he
and Candelario Bolando, the trial court appears to have was hired to kill for P250.00 so that Toling promised him
relied principally on the extrajudicial statements of Hilario P50.00 if he would go with him. He agreed. Toling was
Gahito, Candelario Bolando and Rogelio Cometa (Exhibits armed with a home-made shotgun, Dodo Bolando with a
"C", "D" and "E", respectively). bolo, Emilio Monillano with a bolo, he brought with him a .
22 Caliber revolver (homemade), while his brother,
According to Gahito, he was compelled to join the group at Rolando Cometa, was unarmed. Thus, he testified "Q.
6:00 p.m., February 5, 1966 by Rogelio Cometa to go to -What time did you arrive in Barrio Bag-ong Gutlang?
Barrio Bag-ong Gutlang; that upon nearing the house of
Francisco Lumpayao, Rogelio Comets rode on one of the A.-I think its around 11:45 o'clock in the evening, more or
carabaos of Lumpayao, while his four companions - less, but the moon was very shiny due to good weather on
Francisco Toling, Candelario Bolando, Emilio Toling and that particular time.
Rolando Comets - approached the house, but suddenly the
dogs began to bark; that the owner of the house woke up Q.-How come that said Francisco Toling was able to shoot
and shouted for help, and a few minutes later, a man went and kill Isabelo Caseres?
down an adjacent house; that it was at this juncture that
Francisco Toling fired his shotgun at the man. As he got A.-That upon arrival near the house of his neighbor, whose
scared he ran away (Exhibit "C"). name later known to be Francisco Lumpayao, we tried to
make noise with the carabao to let him come down until
Candelario Belando stated in his sworn statement (Exhibit the dogs of said Francisco Lumpayao barked and barked
"D") that while he was inside his house at about 4:30 and the said owner of the dogs was awakened, so that ht
o'clock in the afternoon of February 5, 1966, a friend of his shouted toy help thinking that we are robbers. and for that
by the name of Francisco Toling came and invited him to instant, Isabelo Caseres came down from his house, and
go with him to Barrio Bag-ong Gutlang. He inquired what Francisco Toling who was aiming already waiting for him to
was their purpose and Toling just said: "Let us go," and as come down fired him a shot and I am sure he was hit
he was afraid he might get mad at him, he did not hesitate because he fell on the ground shouting, for pains, and on
to go with him. His companions in going to Barrio Bag-ong that instant. Francisco Lumpayao and his family run down
Gutlang were Francisco Toling, Rogelio Cometa, Emilio from their house to make their escape, so that some of us
Toling and Rolando Cometa. On their way to said barrio, came upstairs and robbed the house.
they met another person whom he came to know later to
be Hilario Gahito, and whom they also invited to go with Q.-You have stated that you were only hired by your
them. When Gabito refused, Rogelio Comets. threatened to father-in-law, have you received the said amount of
kill him. Rogelio Cometa was armed with a .22 Caliber money?
"paltik", Emilio Toling with a bolo, Francisco Toling with a
home-made shotgun; Rolando Cometa with a bolo, while A.-None, sir. we did not receive the P250.00.
he also carried a bolo, They arrived near the house of
Francisco Lumpayao in Barrio Bag-ong Gutlang at about Q.-Why?
11:00 o'clock in the night. Upon arrival, they saw
Francisco's carabao nearby, Rogelio Comets: mounted the A.-After the incident, said Magno Swela evacuated with his
carabao. Suddenly, the dogs began barking and the owner family and we were not able to am them, especially that
of the house was awakened and shouted for help from his
we were wanted and we were always hicling ourselves court is not satisfied, we see no reason why he should not
from the Molave police. be permitted to call additional witnesses for the purpose of
satisfying his mind upon any questions presented during
Q.-Why are you here in the office of the Chief of Police of the trial of the case." Also, in U.S. v. Base, et al.,6 it has
this municipality? been held that "if the lower court is not satisfied with the
evidence adduced by the attorneys in criminal cases, with
A.-I was arrested while I was sleeping in the house of my reference to a particular point, lie may, on his own motion,
parents at Barrio Ariosa this municipality by a team of local call additional witnesses or recall some of the same
police. witnesses, for the purpose of satisfying his mind with
reference to particular facts involved in the case."
Q.-Are there any attempts of local police to arrest you and
you were able to nuke good your escape?. As to the confessions of Candelario Bolando and Rogelio
Comets, We find them to have been freely and voluntarily
A.-Yes, sir, there are many times already, and one is that in executed. For one thing, the confessions themselves are in.
Ozamiz City where Rogelio Bretania and his companion dicative of their spontaneity and the truth. As the narration
went inside the ship (VICTOR) and I am to see them first, of facts in the extra-judicial confessions of Bolando and
so that I was able to escape from them." (Exhibit "E", CFI Cometa will show, the essentials details, except for the
Record. pp. 62-63). alleged plot to kill Isabelo, Caseres, when pieced together
are identical and reveal a complete story of the entire
In connection with the execution of the extrajudicial incident from its inception to its consummation.
statement of Candelario Bolando, Gualberto B. Bacarro,
Acting Municipal Judge of Molave, Zamboanga del Sur, Thus, the initial meeting between Francisco Toling and
testified that when the prepared statement of Candelario Candelario Bolando at 4:30 p.m. on February 5, 1966
Bolando was brought to him at his office (Exhibit "D"), he wherein Bolando was induced by Toling to go with him to
read the statement sentence by sentence and interpreted Barrio Bag-ong Gutlang; the subsequent meeting between
the same in Visayan, a dialect understood by Bolando; that Toling and his brother-in-law, Rogelio Cometa, where
after he had read a paragraph, he would ask Bolando Francisco Toling induced Rogelio Cometa, to go with him to
whether his statement was true and the latter would Barrio Bag-ong Gutlang to kill one Isabelo, Caseres who
answer in the affirmative, after which the same was signed had a misunderstanding with his (Rogelio's) father-in-law,
by appellant. He declared that the aforesaid prepared for which reason he (Toling) was hired by Rogelio's father-
statement was brought to his office by Sgt. Bretania of the in-law to kill Isabelo, and Toling's promise to Rogelio
Molave Police Force, and that the latter was present when Cometa that he would pay him P50.00; their trip to Barrio
the same was read and translated to appellant. Bag-ong Gutlang and the recruitment along the. way of
Rolando Cometa, Hilario Gahito and Emilio Montillano;7 the
At the hearing on October 2, 1967, Mayor Guillen testified circumstance that Rogelio Cometa was armed with a .22
that on October 13, 1966, the statement of Rogelio Cometa Caliber revolver, Francisco Toling with a homemade
(Exhibit "E") was brought to him by Sgt. Bretania. He shotgun, Emilio Montillano with a bolo, while Rolando
translated the contents thereof to Cometa, from English to Cometa, and Candelario Bolando had none; the events that
Visayan and asked him whether the contents thereof were transpired upon their arrival near the house of Francisco
true and correct. It was only when he was satisfied that Lumpayao at about, 11:00 o' clock in the evening of that;
Cometa understood the same and affirmed that it was date-such as the barking of the dogs and the shooting of
voluntarily given that he allowed appellant Cometa to sign Isabelo Caseres-which dovetail with the testimony of
the document and afterwards he administered the oath to Francisco Lumpayao. The aforesaid statements contain
him. only minor and somewhat contradictory details. Thus, one
said Rolando Cometa had a bolo, while the other said he
In their brief, appellants contend, among others, that the was unarmed. Bolando stated that he did not know the
trial court erred in reopening motu proprio the proceedings purpose of their mission and only was told along the way
after the case had been submitted for decision, simply to that they were going to rob Lumpayao, while Rogelio
enable the prosecution to present evidence which it categorically declared that their purpose was to kill
overlooked or failed to submit at the trial; that the trial Isabelo. There were also exculpatory statements, such as
court erred in admitting and relying upon the confessions the attempt of each declarant to show that not one of them
of Hibuio Gahito. Candelario Bolando and Rogelio Cometa committed any overt act, either in the killing of Isabelo, or
as competent evidence against each other and as against in the robbery in the house of Lumpayao. The disclosure of
their co-accused Rolando Cometa; and that the trial court such details which only the declarants could have known,
erred in holding that the crime committed was Robbery in and the improbability that such details could have been
Band with Homicide under Article 294, paragraph 1 of the concocted by the police, the failure of the appellants to
Revised Penal Code. complain to the municipal judge and the mayor before
whom the confessions were sworn, the evident attempt of
With reference to the reopening of the proceedings after each declarant to exculpate himself, their delay in
both sides had rested and the case submitted for decision, complaining to the authorities about their alleged
We hold that the trial court was not in error. As early as in maltreatment, demonstrate clearly that their claim of
1907, this Court held in U. S. v. Cinco,5 that "judges of the maltreatment was an afterthought and their said
Courts of First Instance are judges of both fact and law, confessions were freely and voluntarily made.
and after all the evidence adduced by the attorneys, if the
Under the facts, the extrajudicial confessions of appellants provided the lesser offense is a cognate offense and is
Rogelio Cometa and Candelario Bolando should have been included in the complaint filed with the court. 12
admissible only against said declarants and not as the
basis for the conviction of Rolando Cometa. The rule on In the instant case, it should be noted that the crime
interlocking confessions is - 'where extrajudicial charged was Robbery with Homicide, which being a special
confessions has been made by several persons charged complex crime is definitely higher than the single crimes of
with a conspiracy and there could have been no collusion homicide and robbery. 13
with reference to the several confessions, the fact that the
statements are in all material respects identical is If there is no express or implied conspiracy among two or
confirmatory of the testimony of an accomplice."8 In other more persons taking part in the commission of the crime,
words, such extrajudicial declarations may, under certain then their liability is regarded as individual or separate.
conditions, be taken into consideration as a circumstance Here, conspiracy has not been sufficiently proven. It does
in judging the credibility of the testimony of an accomplice. not appear that the appellants had a common plan or
In the case of Rolando Cometa, there is no testimony common criminal design. According to Bolando's
implicating said appellant which the aforesaid extra-judicial extrajudicial confession, he went along with Toling because
confessions would confirm or corroborate. he was afraid to displease the latter. It was only when they
were on their way to the barrio that he learned that the
We agree with the appellants that they should not be purpose was to rob one Francisco Lumpayao. Rogelio
convicted of Robbery in Band with Homicide. Rogelio Cometa, however, in his extrajudicial confession
Cometa positively declared that for a price of P50.00, he maintained that his purpose with Francisco Toling was to
joined Francisco Toling in the latter's plan to kill Isabelo kill Isabelo Caseres. Neither could conspiracy be inferred
Caseres of Barrio Bag-ong Gutlang in consideration of a from the acts of Candelario Bolando or Rolando Cometa,
reward of P250.00 promised by Magno Sejuela who wanted since the two had not cooperated in any manner with
Isabelo Caseres to be killed. Relating this declaration with Francisco Toling and Rogelio Cometa for the realization of
the shooting and killing of Isabela, Caseres by Francisco the latter's criminal purpose. Candelario Bolando and
Toling, We cannot escape the conclusion that indeed the Rolando Cometa could and therefore, be held responsible
purpose of the group was to kill Caseres. In this for the death of Isabelo Caseres. Considering, however,
connection, We hasten to state that while Candelario that Bolando admitted that after knowing that they were
Bolando stated that he was told along the way that their going to rob someone he still went with them to Barrio
purpose was to rob Francisco Lumpayao, said statement Bag-ong Gutlang and although he did on directly
cannot prevail over the positive declaration of Rogelio participate in the robbery he gave moral encouragement to
Cometa. as to their purpose, it appearing that Francisco them with his presence and shared in the loot in the
Toling, who did the killing, and his brother-in-law, Rogelio amount of Fifty Centavos (P0.50), he should be criminally
Cometa, were the ones who organized and led the group in responsible as an accomplice for the crime of robbery.
the criminal enterprise. It is not improbable that they did
not immediately reveal to Bolando their criminal purpose in An accomplice is one who cooperates in the execution of
order to induce the latter to go with them. They were the the crime as previous or simultaneous acts, provided that
leaders, while Candelario was merely a minor follower. he has not taken direct part in the execution of the crime
Indeed, the actuations of the appellants indicated that the or forced or induced latters to execute it, or cooperated in
robbery was an afterthought which arose only when they its perpetration by an respensable act. The crime
saw that Lumpayao and his family have, because of fear, committed is robbery with force uponthings, since the
abandoned their house. trunk of the offended party was taken from his house and
forcibly opened in the yard.14 Pursuant of the fifth
The rules is that where the original design comprehends paragraph of Article 299 of the Revised Penalties when the
robbery in a dwelling, and homicide is perpetrated with a value of the property taken does not exceed Two Hundred
view to the consummation of the robbery, the crime Fifty Pesos (P250.00), the penalty for the offense in prision
committed is the complex offense of robbery with homicide mayor. The impossable, penalty on appellant Bolado is the
even though homicide precedes the robbery by an penalty next lower in degree than that prescribed by law
appreciable time. If the original design was not to commit for the consummated felony,15 which in the instant case
robbery but robbery was committed after the homicide as should be prision correccional to be applied in its medium
an afterthought as a minor incident in the homicide, the period in the absence of any aggravating or mitigating
criminal acts should be viewed as constitutive of two circumstance.
distinct offenses and not as a single complex offense.9
In the case of appellant Rogelio Cometa, he admitted he
The rule is that where a complex crime is charged and the agreed to the offer of Francisco Toling that if he would go
evidence fails to support the charge as to one of the with him to all Isabelo Caseres he would be paid P50.00
component offenses, the defendant can be convicted of (Exhibit "E"). As a matter of fact, he went with Toling after
the other. 10 Where the defendant is charged with robbery arming himself with a Caliber .22 home-made gun. On the
with homicide, he may be convicted of one of them. 11 way to Barrio Bag-ang Gutlang, he even forced Hilario
Gahito to join them. He was with Toling when the latter
Likewise, when a person is charged with a crime and the treacherously shot Isabelo Caseres. He should, therefore,
evidence does not show that he is guilty of the crime be liable as a co-principal the crime of homicide, since the
charged, but does show that he is guilty of some lesser crime of murder is not necessarily included in the
offense, the court may sentence him for the lesser offense information for robbery with homocide.
It appears also from the evidence that it was Rogelio SO ORDERED.
Cometa who went up and ransacked the trunk of the
Lumpayaos. He is, therefore, guilty as a principal in the Fernando C.J., Barredo, Concepcion Jr., Santos, Fernandez,
crime of robbery, defined and penalized by Article 299, Guerrero, Abad Santos, De Castro and Melencio Herrera, JJ.,
paragraph b, subparagraph 2, of the Revised Penal Code. concur.

Upon the other hand, Rolando Cometa cannot be held Teehankee, J., took no part.
criminally responsible as principal of either the crime of
homicide or robbery since there is no direct proof that he Makasiar and Aquino, JJ., did not take part.
conspired with his co-appellants or directly participated in
the commission thereof. He cannot also be held criminally 1. Order dated December 19, 1967, CFI
responsible as an accomplice. In order to hold one liable as Record, p. 125.
an accomplice, it is essential that it be proved beyond
reasonable doubt that between the supposed accomplice 2. Order dated October 1, 1966, CFI Record,
and the principal, there is community of criminal purpose p. 53-A.
which implied that it be shown that the supposed
accomplice committed the acts imputed to him with the 3. Order dated December 19, 1967, supra.
intention to help morally or materially in the commission of
the crime.16 4. People v. Jaranilla, L-28547, Feb. 22, 1974,
55 SCRA 563.
Here, it has not been convincingly established that
appellant Rolando Cometa, knowing of the criminal * "Basilio" is Rogelio Cometa (Exhibit "C").
purpose, has given aid or encouragement, either morally or
5. No. 3664, August 17, 1907, 8 Phil. 388.
materially, in the commission of the crime. Such
circumstances being absent, his mere presence at the
6. No. 3961, October 12, 1907, 9 Phil. 48.
scene of the crime does not make him an accomplice.17
7. As mentioned in the affidavit of Rogelio
ACCORDINGLY, the judgment of the court a quo is hereby
Cometa (Exhibit "E"). In the affidavit of Candelario Bolando,
modified as follows:
Exhibit "D"), he is referred to as Emilio Toling.
(a) finding Rogelio Cometa alias Celio guilty beyond
8. People v. Badilla, No. 23792, Feb. 17,
reasonable doubt of the crimes of Homicide, aggravated by
1926, 48 Phil. 718.
treachery, and of Robbery, and imposing upon him for the
crime of Homicide, an indeterminate penalty ranging from
9. "From the fact that the killing and the
eight (8) years of prision mayor as the minimum to
robbery did not take place in the same place, the
eighteen (18) years of reclusion temporal as the maximum,
appellants contend that the crime committed cannot be
and ordering him to indemnify the heirs of Isabelo Caseres
robbery with homicide. But it appears from the facts
in the amount of P12,000.00; and for the crime of Robbery,
proved that appellants had the intention of robbing
an indeterminate penalty ranging from four (4) years and
Omblero when their leader asked him for money and
two (2) months of prision correccional as the minimum, to
threatened him with death if he refused and that after
eight (8)
shooting him down and thus eliminating an obstacle to the
effectuation of their unlawful design, they repaired to his
years and one (1) day of prision mayor as the maximum,
house, which was nearby, and by force, took his money
and to indemnify Francisco Lumpayao in the amount of
therefrom. It is thus clear that the killing and the robbery
P200.00;
are not isolated acts, for there is a direct connection
between the two. The killing sprang from the idea of
(b) finding Candelario Bolando alias Dodo guilty as an
robbing and was but a step in the perpetration of the
accomplice in the crime of Robbery and sentencing him to
robbery. In the circumstances, we have no hesitation in
suffer an indeterminate penalty ranging from six (6)
saying that the killing was done by reason or on the
months of arresto mayor as the minimum, to two (2) years,
occasion of the robbery, so that appellants are guilty of the
four (4) months and one (1) day of prision correccional as
special complex crime of robbery with homicide (Article
the maximum of the penalty, and to indemnify Francisco
294, paragraph 1, Revised Penal Code).
Lumpayao in the amount of One Hundred Pesos (P100.00),
without prejudice to the provisions of Article 110 of the
"When there is direct relation and intimate
Revised Penal Code; and (c) Rolando Cometa alias Lando is
connection between the robbery and the death of the
hereby ACQUITTED on the ground of reasonable doubt,
owner of the property stolen, by reason of the death
with proportionate part of the costs de oficio.
having preceded the robbery and of the fact that the crime
sprang from the idea of robbery, the accused beginning
The period of preventive imprisonment shall be deducted
the criminal act by killing their victim, such crimes cannot
from the term of imprisonment of Rogelio Cometa and
be separated into two distinct crimes of robbery and of
Candelario Bolando, pursuant to Article 29 of the Revised
homicide or murder, nor consequently, can the criminal
Penal Code, as amended.
liability of the defendants be divided in accordance with
With costs against appellants. such participation as they may have had in one part of the
crime or the other, nor can they be sentenced for the crime offenses separately charged in two informations. viz.,
of robbery independently of that of homicide or murder. In murder under Article 248 of the Revised Penal Code and
other words, if there is a direct relation, an intimate illegal possession of firearm in its aggravated form under
connection between the robbery and the killing whether P.D. No, 1866, and imposing upon him the penalty of
the latter be prior or subsequent to the former, or whether reclusion perpetua for the first crime and an indeterminate
both crimes be committed at the same time - it is penalty ranging from seventeen years, four months, and
unquestionable that they constitute the complex crime one day, as minimum, to twenty years and one day, as
defined in article 294, paragraph 1, of the Penal Code." maximum, for the second crime.1
(Guevara, Revised Penal Code, p. 576, citing People v.
Hernandez, 46 Phil. 48; People v. Napoleon Libre, 93 Phil. The appeal was originally assigned to the Third Division of
5, 8.). the Court but was later referred to the Court en banc in
view of the problematical issue of whether to sustain the
10. U. S. v. Lahoylahoy, et al., No. 12453, July trial court's judgment in conformity with the doctrine laid
15, 1918, 38 Phil. 330. down in People vs. Tacan,2 People vs. Tiozon,3 People vs.
Caling,4 People vs. Jumamoy,5 People vs. Deunida,6
11. U. S. v. Paddit, et al., No. 583, Oct. 15, People vs. Dongco,7 People vs. Fernande,8 and People vs.
1902, 1 Phil. 426. Somooc,9 or to modify the judgment and convict the
appellant only of illegal possession of firearm in its
12. U. S. v. Nery, No. 1989, Jan. 22, 1905, 4 aggravated form pursuant to People vs. Barros,10 which
Phil. 158; People v. Castillo, CA-No. 227, Feb. 1, 1946, 76 this Court (Second Division) decided on 27 June 1995.
Phil. 72.
The informations read as follows:
13. U. S. v. Abelinde, et al., No. 945, Dec. 19,
1902, 1 Phil. 568; People v. Andam, L-11383, April 30, CRIMINAL CASE NO. 8178
1958 (Unrep.), 103 Phil. 1129; People v. Mori, L-23511 & L-
23512, Jan. 31, 1974, 55 SCRA 382. That on or about the 30th day of December, 1992, in the
municipality of Dauis, province of Bohol, Philippines, and
14. Article 299, par. b, sub-par. 2, of the within the jurisdiction of this Honorable Court, the
Revised Penal Code. abovenamed accused, with intent to kill and without any
justifiable motive, with treachery and abuse of superior
15. Article 52, Revised Penal Code. strength, the accused being then armed with a .38 cal.
revolver, while the victim was unarmed, suddenly attacked
16. People v. Tamayo, No. 18289, Nov. 17, the victim without giving the latter the opportunity to
1922, 44 Phil. 38. defend himself, and with evident premeditation, the
accused having harbored a grudge against the victim a
17. People v. Madera, L-35133, May 31, 1974, week prior to the incident of murder, did then and there
57 SCRA 349. willfully, unlawfully and feloniously attack, assault and
shoot Diosdado Iroy y Nesnea with the use of the said
* Justice Felix V. Makasiar did not take part, firearm, hitting the latter on his head and causing serious
as he was then the Solicitor General. injuries which resulted to his death; to the damage and
prejudice of the heirs of the deceased.

Acts committed contrary to the provision of Art. 248 of the


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

CRIMINAL CASE NO. 8 17 9

That on or about the 30th day of December, 1992. in the


PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
municipality of Dauis, province of Bohol, Philippines, and
VS. DANIEL QUIJADA Y CIRCULADO, ACCUSED-
within the jurisdiction of this Honorable Court, the
APPELLANT.
abovenamed accused, did then and there willfully,
unlawfully and feloniously keep, carry and have in his
APPEARANCES OF COUNSEL Solicitor General for plaintiff-
possession, custody and control a firearm (hand gun) with
appellee.
ammunition, without first obtaining the necessary permit
or license to possess the said firearm from competent
Alberto Y. Bautista for accused-appellant,
authorities which firearm was carried bv the said accused
D E C I S I O N DAVIDE, JR., J.: outside of his residence and was used 63, him in
committing the crime of Murder with Diosdado Iroy y
Accused-appellant Daniel Quijada appeals from the Nesnea as the victim; to the damage and prejudice of the
decision of 30 September 1993 of Branch I of the Regional Republic of the Philippines.
Trial Court (RTC) of Bohol convicting him of the two
Acts committed contrary to the provisions of P.D. No. In the afternoon of 31 December 1992, appellant, together
1866.12 with his father Teogenes Quijada went to the police station
at Dauis, Bohol. There and then, appellant was pinpointed
Having arisen from the same incident, the cases were by Elenito Nistal and Rosita Iroy as the person who shot
consolidated, and Joint hearings were had. The witnesses Diosdado Iroy. These facts were entered in the police
presented by the prosecution were SP04 Felipe Nigparanon blotter as Entry No. 1151 (TSN, Crim. Case Nos. 8178 &
(Acting Chief of Police of Dauis, Bohol), SPO Gondalino Inte, 8179, ibid., p. 14, June 14, 1993, pp. 4-6).13
Dr. Gregg Julius Sodusta, Rosita Iroy, and Teodula
Matalinis. The defense presented as witnesses Alfred The slug was embedded at the midbrain.14 Diosdado Iroy
Aranzado, Edwin Nistat, Julius Bonao, Saturnino Macylupay, died of Cardiorespiratory arrest, secondary to tonsillar
and the appellant himself. herniation, secondary to massive intracranial hemorrhage,
secondary to gunshot wound, I cm. left occipital area,
The evidence for the prosecution is summarized by the transacting cerebellum up to midbrain.15
Office of the Solicitor General in the Brief for the Appellee
as follows: The firearm used by the appellant in shooting Diosdado
Iroy was not licensed. Per certifications issued on 26 April
On 25 December 1992. a benefit dance was held at the 1993, the appellant was not a duly licensed firearm holder
Basketball Court of Barangay Tinago, Dauis, Bohol. On this as verified from a consolidated list of licensed firearm
occasion, a fist fight occurred between Diosdado Iroy and holders in the province16 and was not authorized to carry
appellant Daniel Quijada as the latter was constantly a firearm outside his residence.17
annoying and pestering the former's sister, Rosita Iroy
(TSN, Crim. Cases 8178 & 8179. June $. 1993, pp. 32-35- The appellant interposed the defense of alibi, which the
August 5. 1993, pp. 14 -15). trial court rejected because he was positively identified by
prosecution witness Rosita Iroy. It summarized his
In the evening of 30 December 1992, another benefit testimony in this wise:
dance/ disco was held in the same place. This benefit
dance was attended bv Rosita Iroy, Ariel Dano, Teodora Daniel Quijada y Circulado, the accused in the instant
Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy. cases, declared that in the afternoon of December 30,
1992 he was in their house. At 6:00 o'clock in the
While Rosita Iroy and others were enjoying themselves afternoon he went to Tagbilaran City together with Julius
inside the dancing area, Diosdado Iroy, Eugene Nesnea and Bonao in a tricycle No. 250 to solicit passengers. They
Largo troy, who xere then sitting at the plaza (the area transported passengers until 10:30 o'clock in the evening.
where they positioned themselves was duly lighted and They then proceeded to the Tagbilaran wharf waiting for
was approximately four meters from the dancing hall), the passenger boat Trans Asia Taiwan. Before the arrival of
decided to just watch the activities in the dance hall Trans Asia Taiwan they had a talk with Saturnino
directly from the plaza, Maglopay. They were able to pick up two passengers for
Graham Avenue near La Roca Hotel. They then returned to
After dancing, Rosita Iroy decided to leave and went the Tagbilaran wharf for the arrival of MV Cebu City that
outside the gate of the dance area. Subsequently, or docked at 12: 10 past midnight. They had a talk with
around 11:30 of the same night, while facing the direction Saturnino Maglopay who was waiting for his auntie
of Diosdado Iroy, Rosita Troy saw appellant surreptitiously scheduled to arrive aboard MV Cebu City. They were not
approach her brother Diosdado Iroy from behind. Suddenly, able to pick up passengers which, as a consequence, they
appellant fired his revolver at Diosdado Iroy, hitting the went home. They had on their way home passengers for
latter at the back portion of the head. This caused Rosita the Agora Public Market. They arrived at the house of Julian
lroy to spontaneously shout that appellant shot her Bonao at Bil-isan, Panglao, Bohol at 3:00 o'clock in the
brother; while appellant, after shooting Diosdado Iroy, ran morning of December 31, 1992 where he passed the night.
towards the cornfield, He went home to Mariveles. Dauis, Bohol at 9: 00 o'clock in
the morning.18
Diosdado Iroy was immediately rushed by Elmer
Nigparanon and Largo Iroy to the hospital but the injury The trial court gave full faith and credit to the version of
sustained was fatal. In the meantime, Rosita Iroy went the prosecution and found the appellant guilty beyond
home and relayed to her parents the unfortunate incident reasonable doubt of the crimes charged and sentenced
(TSN, Crim. Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, him accordingly. It appreciated the presence of the
inclusive of the preceding paragraphs). qualifying circumstance of treachery considering that the
appellant shot the victim at the back of the head while the
At around midnight, the incident was reported to then latter was watching the dance, The dispositive portion of
Acting Chief of Police Felipe Nigparanon by Mrs. Alejandra the decision dated 30 September 1993 reads as follows:
Iroy and her daughter Teodula Matalinis. The police officer
made entries in the police blotter regarding the shooting PREMISES CONSIDERED, in Criminal Case No. 8178, the
and correspondingly, ordered his men to pick up the court finds the accused Daniel Quijada guilty of the crime
appellant. But they were unable to locate appellant on that of murder punished under Article 248 of the Revised Penal
occasion (TSN, CrIm. Case Nos. 8178 & 8179, June 9, 1993, Code and hereby sentences him to suffer an imprisonment
pp. 2-6). of Reclusion Perpetua, with the accessories of the law and
to pay the cost.
In Criminal Case No. 8179, the Court finds the accused And, the appellant considers it as suppression of evidence
Daniel Quijada guilty of the crime of Qualified Illegal when the prosecution did not present as witnesses
Possession of Firearm and Ammunition punished under Diosdado's companions who were allegedly seated with
Sec. 1 of R.A. No. 1866 as amended, and hereby sentences Diosdado when he was shot.
him to suffer an indeterminate sentence from Seventeen
(17) years Four (4) months and One (1) day, as minimum, As to SP04 Nigparanon, the appellant intimates improper
to Twenty (20) years and One (1) day, as maximum, with motives in that the said witness is a neighbor of the Iroys,
the accessories of the law and to pay the cost. and when he testified, a case for arbitrary detention had
already been filed against him by the appellant. The
The slug or bullet which was extracted from the brain at appellant further claims of alleged nmi.cvzinns and
the back portion of the head of the victim Diosdado Iroy is unexplained entries in the police blotter.
hereby ordered forfeited in favor of the government,
Finally, the appellant wants us to favorably consider his
It appearing that the accused Daniel Quijada has defense of alibi which, according to him, gained strength
undergone preventive imprisonment he is entitled to the because of the lack of evidence on the identity of the killer.
full time he has undergone preventive imprisonment to be Furthermore, he stresses that his conduct in voluntarily
deducted from the term of sentence if he has executed a going to the police station after having been informed that
waiver otherwise he will only be entitled to 4/5 of the time he, among many others, was summoned by the police is
he has undergone preventive imprisonment to be deducted hardly the actuation of the perpetrator of the killing of
from his term of sentence if he has not executed a Diosdado Iroy - specially so if Rosita Iroy's claim is to be
waiver.19 believed that moments after the shooting she shouted that
Daniel Quijada shot Diosdado Iroy.
On 29 October 1993, after discovering that a had
inadvertently omitted in the decision an award of civil In its Appellee's Brief, the People refutes every argument
indemnity and other damages in Criminal Case No. 8178, raised by the appellant and recommends that we affirm in
the trial court issued an order directing the appellant to toto the challenged decision.
pay the parents of the victim the amount of P50,000.00 as
indemnity for the death of their son and P10,000,00 for After a careful scrutiny of the records and evaluation of the
funeral expenses.20 The order was to form an integral part evidence adduced by the parties, we find this appeal to be
of the decision. absolutely without merit.

The decision was promulgated on 29 October 1993.21 The imputation of ill-motive on the part of Rosita Iroy and
the basis therefor hardly persuade. The appellant was the
The appellant forthwith interposed the present appeal, and one who was boxed by and lost to Diosdado Iroy in their
in his Brief, he contends that the trial court erred: fight on the night of 25 December 1992. It is then logical
and consistent with human experience that it would be the
I IN CONVICTING ACCUSED-APPELLANT AND GIVING appellant who would have forthwith entertained a grudge,
CREDENCE TO THE TESTIMONY OF PROSECUTION if not hatred, against Diosdado. No convincing evidence
WITNESSES ROSITA IROY AND FELIPE NIGPARANON. was shown that Rosita had any reason to falsely implicate
the appellant in the death of her brother Diosdado.
II IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE
WITNESSES EDWIN NISTAL AND ALFRED ARANZADO. AND The claim that Rosita could not have seen who shot her
IN DISREGARDING THE PICTORIAL EXHIBITS OF THE brother Diosdado because, as testified to by defense
ACCUSED-APPELLANT PARTICULARLY THE RELATIVE witnesses Nistal and Aranzado, she was inside the dancing
POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN hall and rushed to her brother only after the latter was shot
NISTAL, AND ALFRED ARANZADO ... IN FAILING TO is equally baseless. The following testimony of Rosita
CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY shows beyond cavil that she saw the assailant:
AND SP04 FELIPE NIGPARANON HAD MOTIVES IN FALSELY
TESTIFYING AGAINST ACCUSED-APPELLANT.22 QYou said that you were initially dancing inside the
dancing place and you went out, about what time did you
The appellant then submits that the issue in this case bolls get out?
down to the identity of the killer of Diosdado Iroy. To
support his stand that the killer was not identified, he A11:00 o'clock.
attacks the credibility of prosecution witnesses Rosita Iroy
and SP04 Felipe Nigparanon. He claims that the former had QAnd you were standing about two (2) meters from
a motive "to put him in a bad light" and calls our attention Diosdado Iroy until 11: 30 when the incident happened?
to her direct testimony that her brother Diosdado, the
victim, boxed him on the night of 25 December 1992 AYes, I was standing.
because he allegedly "bothered her." He further asserts
that Rosita could not have seen the person who shot QAnd where did you face, you were facing Diosdado Iroy or
Diosdado considering their respective positions, the dancing area?
particularly Rosita who, according to defense witnesses
Nistal and Aranzado, was still inside the dancing area and AI was intending to go near my brother. I was approaching
ran towards the crime scene only after Diosdado was shot. and getting near going to my brother Diosdado Iroy and
while in the process I saw Daniel Quijada shot my brother xxxxxx xxx QWhat was the color of the electric bulb in the
Diosdado lroy.23 gate of the dancing place?

xxxxxx xxx QAnd in your estimate, how far was your AThe white bulb.25
brother Diosdado Iroy while he was sitting at the plaza to
the dancing place? The trial court disbelieved the testimony of Nistal and
Aranzado. It explicitly declared:
AMore or less four (4) meters distance.
The factual findings of the Court in the instant case is
COURT: anchored principally in ". . . observing the attitude and
deportment of witnesses while listening to them speak
From the dancing hall? (People vs. Magaluna, 205, SCRA 266).

AYes, your honor. thereby indicating that on the basis of the witnesses'
deportment and manner of testifying, the declarations of
QAnd in your observation, was the place where Diosdado Nistal and Aranzado failed to convince the trial court that
Iroy was sitting lighted or illuminated? they were telling the truth. Settled is the rule that the
factual findings of the trial court, especially on the
AYes, sir. credibility of witnesses, are accorded great weight and
respect. For, the trial court has the advantage of observing
QWhat kind of light illuminated the place? the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an
AI do not know what kind of light but it was lighted. insisted assertion or the sudden pallor of a discovered lie
or the tremulous mutter of a reluctant answer or the
QWas it an electric light? forthright tone of a ready reply;26 or the furtive glance, the
blush of conscious shame, the hesitation, the sincere or the
AIt is electric light coming from a bulb.
flippant or sneering tone, the heat, the calmness, the
yawn, the sigh, the candor or lack of it, the scant or full
QWhere is that electric bulb that illuminated the place
realization of the solemnity of an oath, the carriage and
located? I AIt was placed at the gate of the dancing place
mien.27 The appellant has miserably failed to convince us
and the light from the house.
that we must depart from this rule.
QYou said gate of the dancing place, you mean the
Neither are we persuaded by the claimed suppression of
dancing place was enclosed at that time and there was a
evidence occasioned by the non-presentation as
gate, an opening?
prosecution witnesses any of the companions of Diosdado
who were seated with him when he was shot. In the first
AYes, sir.
place, the said companions could not have seen from their
back the person who suddenly shot Diosdado. In the
QWhat material was used to enclose the dancing place?
second place, the testimony of the companions would, at
ABamboo. the most, only corroborate that of Rosita Iroy. Besides,
there is no suggestion at all that the said companions were
QAnd how far was the bulb which was placed near the not available to the appellant. It is settled that the
entrance of the dancing place to the place where Diosdado presumption in Section 3 (e), Rule 131 of the Rules of
Iroy was sitting? Court that evidence willfully suppressed would be adverse
if produced does not apply when the testimony of the
AFive (5) meters. witness is merely corroborative or where the witness is
available to the accused.28
QYou mentioned also that there was a light coming from
the house, now whose house was that? The alleged improper motive on the part of SP04
Nigparanon simply because he is a neighbor of the Iroy;
AThe house of spouses Fe and Berto, I do not know the remains purely speculative, as no evidence was offered to
family name. establish that such a relationship affected SP04
Nigparanon's objectivity. As a police officer, he enjoyed in
QWas the light coming from the house of spouses Fe and his favor the presumption of regularity in the performance
Berto an electric light? of his official duty.29 As to the alleged omissions and
unexplained entries in the police blotter, the same were
AYes, sir. sufficiently clarified by SP04 Nigparanon.

QAnd in your estimate, how far was the source of light of The defense of alibi interposed by the appellant deserves
the house of Fe and Berto to the place where Diosdado Iroy scant consideration. He was positively identified by a
was sitting? credible witness. It is a fundamental judicial dictum that
the defense of alibi cannot prevail over the positive
AAbout six (6) meters distance.24 identification of the accused.30 Besides, for that defense to
prosper it is not enough to prove that the accused was
somewhere else when the crime was committed; he must against double jeopardy will not apply. We observed in
also demonstrate that it was physically impossible for him Tac-an:
to have been at the scene of the crime at the time of its
commission.31 As testified to by defense witness Julian It is elementary that the constitutional right against double
Bonao, the Tagbilaran wharf, where the appellant said he jeopardy protects one against a second or later
was, is only about eight to nine kilometers away from the prosecution for the same offense, and that when the
crime scene and it would take only about thirty minutes to subsequent information charges another and different
traverse the distance with the use of a tricycle.32 It was, offense, although arising from the same act or set of acts,
therefore, not physically impossible for the appellant to there is no prohibited double jeopardy. In the case at bar, it
have been at the scene of the crime at the time of its appears to us quite clear that the offense charged in
commission. Criminal Case No. 4007 is that of unlawful possession of an
unlicensed firearm penalized under a special statute, while
Finally, the appellant asserts that if he were the killer of the offense charged in Criminal Case No. 4012 was that of
Diosdado Iroy, he would not have voluntarily proceeded to murder punished under the Revised Penal Code. It would
the police station. This argument is plain sophistry. The law appear self-evident that these two (2) offenses in
does not find unusual the voluntary surrender of offenders, themselves are quite different one from the other, such
it even considers such act as a mitigating circumstance.33 that in principle, the subsequent filing of Criminal Case No.
Moreover, nonflight is not conclusive proof of innocence.34 4012 is not to be regarded as having placed appellant in a
prohibited second jeopardy.
The evidence for the prosecution further established with
moral certainty that the appellant had no license to And we stressed that the use of the unlicensed firearm
possess or carry a firearm. The firearm then that he used cannot serve to increase the penalty for homicide or
in shooting Diosdado Iroy was unlicensed. He, therefore, murder; however, the killing of a person with the use of an
committed the crime of aggravated illegal possession of unlicensed firearm, by express provision of P.D. No. 1866,
firearm under the second paragraph of Section I of P.D. No. shall increase the penalty for illegal possession of firearm.
1966, which reads:
In Dozon, we stated:
SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition
or Possession of Firearms, Ammunition or Instruments It may be loosely said that homicide or murder qualifies
Used or Intended to be Used in the Manufacture of the offense penalized in said Section I because it is a
Firearms or Ammunition. The penalty of reclusion temporal circumstance which increases the penalty. It does not,
in its maximum period to reclusion perpetua shall be however, follow that the homicide or murder is absorbed in
imposed upon any person who shall unlawfully the offense; otherwise, an anomalous absurdity results
manufacture, deal in, acquire, dispose or possess any whereby a more serious crime defined and penalized in the
firearm, part of firearm, ammunition or machinery, tool or Revised Penal Code is absorbed by a statutory offense,
instrument used or intended to be used in the manufacture which is just a malum prohibitum. The rationale for the
of any firearm or ammunition. qualification, as implied from the exordium of the decree,
is to effectively deter violations of the laws on firearms and
If homicide or murder is committed with the use of an to stop the "'upsurge of crimes vitally affecting public order
unlicensed firearm, the penalty of death shall be imposed. and safety due to the proliferation of illegally possessed
and manufactured firearms, x x x." In fine then, the killing
In light of the doctrine enunciated in People vs. Tac-an,35 of a person with the use of an unlicensed firearm may give
and reiterated in People vs. Tiozon36 People vs. Caling,37 rise to separate prosecutions for (a) violation of Section 1
People vs. Jumamoy,38 People vs. Deunida,39 People vs. of P.D. No. 1866 and (b) violation of either Article 248
Tiongco,40 People vs. Fernandez,41 and People vs.
Somooc,42 that one who kills another with the use of an (Murder) or Article 249 (Homicide) of the Revised Penal
unlicensed firearm commits two separate offenses of (1) Code.
either homicide or murder under the Revised Penal Code,
and (2) aggravated illegal possession of firearm under the The accused cannot plead one as a bar to the other; or,
second paragraph of Section I of P.D. No. 1866, we sustain stated otherwise, the rule against double jeopardy cannot
the decision of the trial court finding the appellant guilty of be invoked because the first is punished by a special law
two separate offenses of murder in Criminal Case No. 8178 while the second,
and of aggravated illegal possession of firearm in Criminal
Case No. 8179. homicide or murder, is punished by the Revised Penal
Code.
Although Tac-an and Tiozon relate more to the issue of
whether there is a violation of the constitutional In People vs. Duriguez, [24 SCRA 163, 171], We held:
proscription against double jeopardy if an accused is
prosecuted for homicide or murder and for aggravated It is a cardinal rule that the protection against double
illegal possession of firearm, they at the same time laid jeopardy may be invoked only for the same offense or
down the rule that these are separate offenses, with the identical offenses. A simple act may offend against two (or
first punished under the Revised Penal Code and the more) entirely distinct and unrelated provisions of law, and
second under a special law; hence, the constitutional bar if one provision requires proof of an additional fact or
element which the other does not, an acquittal or
conviction or a dismissal of the information under one does therefor is not first obtained. To that act is attached the
not bar prosecution under the other. Phrased elsewise, penalty of reclusion temporal, maximum, to reclusion
where two different laws (or articles of the same code) perpetua. Now, if "with the use of (such) an unlicensed
defines two crimes, prior jeopardy as to one of them is not firearm, a "homicide or murder is committed," the crime is
obstacle to a prosecution of the other, although both aggravated and is more heavily punished, with the capital
offenses arise from the same fact, if each crime involves punishment.
some important act which is not an essential element of
the other. The gravamen of the offense in its simplest form is,
basically, the fact of possession of a firearm without
In People vs. Bacolod [89 Phil. 621]. from the act of firing a license. The crime may be denominated simple illegal
shot from a sub-machine gun which caused public panic possession, to distinguish it from its aggravated form. It is
among the people present and physical injuries to one, aggravated if the unlicensed firearm is used in the
informations of physical injuries through reckless commission of a homicide or murder under the Revised
imprudence and for serious public disturbance were filed. Penal Code. But the homicide or murder is not absorbed in
Accused pleaded guilty and was convicted in the first and the crime of possession of an unlicensed firearm; neither is
he sought to dismiss the second on the ground of double the latter absorbed in the former. There are two distinct
jeopardy. We ruled: crimes that are here spoken of. One is unlawful possession
of a firearm, which may be either simple or aggravated,
The protection against double jeopardy is only for the same defined and punished respectively by the first and second
offense. A simple act may be an offense against two paragraphs of Section I of P.D. No. 1866. The other is
different provisions of law and if one provision requires homicide or murder, committed with the use of an
proof of an additional fact which the other does not, an unlicensed firearm The mere possession of a firearm
acquittal or conviction under one does not bar prosecution without legal authority consummates the crime under P.D.
under the other. No. 1866, and the liability for illegal possession is made
heavier by the firearm's use in a killing. The killing,
Since the informations were for separate offense[s] - the whether homicide or murder, is obviously distinct from the
first against a person and the second against public peace act of possession, and is separately punished and defined
and order one cannot be pleaded as a bar to the other under the Revised Penal Code. (italics supplied)
under the rule on double jeopardy.
In Jumamoy, we reiterated Caling and amplified the
In Caling, we explicitly opined that a person charged with rationale on why an accused who kills another with an
aggravated illegal possession of firearm under the second unlicensed firearm can be prosecuted and punished for the
paragraph of Section I of P.D. No. 1866 can also be two separate offenses of violation of the second paragraph
separately charged with and convicted of homicide or of Section I of P.D. No. 1866 and for homicide or murder
murder under the Revised Penal Code and punished under the Revised Penal Code. Thus:
accordingly. Thus:
Coming to the charge of illegal possession of firearms,
It seems that the Court a quo did indeed err in believing Section I of P.D. No. 1966 penalizes, inter alia, the unlawful
that there is such a thing as "the special complex crime of possession of firearms or ammunition with reclusion
Illegal Possession of Unlicensed Firearm Used in Homicide temporal in its maximum period to reclusion perpetua.
as provided for and defined under the 2nd paragraph of However, under the second paragraph thereof, the penalty
Sec. 1 of P. D. 1866 as amended," and declaring Caling is increased to death if homicide or murder is committed
guilty thereof The legal provision invoked, "Sec. I of P.D. with the use of an unlicensed firearm. It may thus be
1866, as amended," reads as follows: loosely said that homicide or murder qualifies the offense
because both are circumstances which increase the
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, penalty. It does not, however, follow that the homicide or
Disposition Or Possession of Firearms [or] Ammunition or murder is absorbed in the offense. If these were to be so,
Instruments Used or Intended to be Used in the an anomalous absurdity would result whereby a more
Manufacture of Firearms or Ammunition.-The penalty of serious crime defined and penalized under the Revised
reclusion temporal in its maximum period to reclusion Penal Code will be absorbed by a statutory offense, one
perpetua shall be imposed upon any person who shall which is merely malum prohibitum. Hence, the killing of a
unlawfully manufacture, deal in, acquire, dispose, or person with the use of an unlicensed firearm may give rise
possess any firearm, part of firearm, ammunition or to separate prosecutions for (a) the violation of Section I of
machinery, tool or instrument used or intended to be used P.D. No. 1866 and (b) the violation of either Article 248
in the manufacture of any firearm or ammunition. (Murder) or Article 249 (Homicide) of the Revised Penal
Code. The accused cannot plead one to bar the other;
If homicide or murder is committed with the use of an stated otherwise, the rule against double jeopardy cannot
unlicensed firearm, the penalty of death shall be imposed." be invoked as the first is punished by a special law while
the second - Murder or Homicide - is punished by the
What is penalized in the first paragraph, insofar as material Revised Penal Code. [citing People vs. Tiozon, 198 SCRA
to the present case is the sole, simple act of a person who 368, 379 (1991); People vs. Doriguez, 24 SCRA 163
shall, among others, "unlawfully possess any firearm x x x (1968)]. Considering, however, that the imposition of the
(or) ammunition x x x." Obviously, possession of any death penalty is prohibited by the Constitution, the proper
firearm is unlawful if the necessary permit and/or license
imposable penalty would be the penalty next lower in committed. It is submitted that an accused so situated
degree, or reclusion perpetua. (Italics supplied) should be liable only for the graver offense of aggravated
illegal possession of the firearm punished by death under
In Deunida, in discussing the propriety of the Government's the second paragraph of Section 1, Presidential Decree No.
action in withdrawing an information for murder and 1866, and it is on this point that the writer dissents from
pursuing only the information for "Qualified Illegal the holding which would impose a separate penalty for the
Possession of Firearm," this Court categorically declared: homicide in addition to that for the illegal possession of the
firearm used to commit the former.
At the outset, it must be stressed that, contrary to the
prosecution's legal position in withdrawing the information If the possession of the unlicensed firearm is the only
for murder, the offense defined in the second paragraph of offense imputable to the accused, the Court has correctly
Section I of P.D. No. 1866 does not absorb the crime of held that to be the simple possession punished with
homicide or murder under the Revised Penal Code and, reclusion temporal in its maximum period to reclusion
therefore, does crime. The 1982 decision in Lazaro vs. perpetua in the first paragraph of Section 1. Where,
People, involving the violation of P.D. No. 9, which the complementarily, the unlicensed firearm is used to commit
investigating prosecutor invokes to justify the withdrawal, homicide or murder, then either of these felonies will
is no longer controlling in view of our decisions in People convert the erstwhile simple illegal possession into the
vs. Tac-an, People vs. Tiozon, and People vs. Caling. graver offense of aggravated illegal possession. In other
words, the homicide or murder constitutes the essential
In Somooc, we once more ruled: element for integrating into existence the capital offense of
the aggravated form of illegal possession of a firearm.
The offense charged by the Information is clear enough Legally, therefore, it would be illogical and unjustifiable to
from the terms of that document, although both the use the very same offenses of homicide or murder as
Information and the decision of the trial court used the integral elements of and to create the said capital offense,
term "Illegal Possession of Firearm with Homicide," a and then treat the former all over again as independent
phrase which has sometimes been supposed to connote a offenses to be separately punished further, with penalties
"complex crime" as used in the Revised Penal Code. Such immediately following the death penalty to boot.
nomenclature is, however, as we have ruled in People vs.
Caling, a misnomer since there is no complex crime of The situation contemplated in the second query is, from
illegal possession of firearm with homicide. The gravamen the punitive standpoint, virtually of the nature of the so-
of the offense penalized in P.D. No. 1866 is the fact of called,
possession of a firearm without a license or authority for
such possession. This offense is aggravated and the "special complex crimes," which should more appropriately
imposable penalty upgraded if the unlicensed firearm is be called composite crimes, punished in Article 294, Article
shown to have been used in the commission of homicide or 297 and Article 335. They are neither of the same legal
murder, offenses penalized under the Revised Penal Code. basis as nor subject to the rules on complex crimes in
The killing of a human being, whether characterized as Article 48, since they do not consist of a single act giving
homicide or murder, is patently distinct from the act of rise to two or more grave or less grave felonies nor do they
possession of an unlicensed firearm and is separately involve an offense being a necessary means to commit
punished under the provisions of the Revised Penal Code. another, However, just like the regular complex crimes and
the present case of aggravated illegal possession of
The foregoing doctrine suffered a setback when in our firearms, only a single penalty is imposed for each of such
decision of 27 June 1995 in People vs. Barros,43 we set composite crimes although composed of two or more
aside that portion of the appealed decision convicting the offenses.
appellant of the offense of murder and affirmed that
portion convicting him of illegal possession of firearm in its On the other hand, even if two felonies would otherwise
aggravated form. We therein made the following have been covered by the conceptual definition of a
statement: complex crime under Article 48, but the Code imposes a
single definite penalty therefor, it cannot also be punished
[A]ppellant may not in the premises be convicted of two as a complex crime, much less as separate offense, but
separate offenses [of illegal possession of firearm in its with only the single penalty prescribed by law. Thus, even
aggravated form and of murder], but only that of illegal where a single act results in two less grave felonies of
possession of firearm in its aggravated form, in light of the serious physical injuries and serious slander by deed, the
legal principles and propositions set forth in the separate offense will not be punished as a delito compuesto under
opinion of Mr. Justice Florenz D. Regalado, to which the Article 48 but as less serious physical injuries with
Members of the Division, the ponente included, subscribe. ignominy under the second paragraph of Article 265. The
serious slander by deed is integrated into and produces a
The pertinent portions of the separate opinion of Mr. Justice graver offense, and the former is no longer separately
Florenz D. Regalado referred to therein read as follows: punished.

This premise accordingly brings up the second query as to What is, therefore, sought to be stressed by such
whether or not the crime should properly be the alternative illustration, as well as the discussion on
aggravated illegal possession of an unlicensed firearm complex and composite crimes, is that when an offense
through the use of which a homicide or murder is becomes a component of another, the resultant crime
being correspondingly punished as thus aggravated by the drawn up and these informations were individually
integration of the other, the former is not to be further assigned to different courts or branches of the same court.
separately punished as the majority would want to do with
the homicide involved in the case at bar. Indeed, the practice of charging the offense of illegal
possession separately from the homicide or murder could
With the foregoing answers to the second question, the be susceptible of abuse since it entails undue
third inquiry is more of a question of classification for concentration of prosecutorial powers and discretion.
purposes of the other provisions of the Code. The theory in Prefatorily, the fact that the killing was committed with a
Tac-an that the principal offense is the aggravated form of firearm will necessarily be known to the police or
illegal possession of firearm and the killing shall merely be prosecutorial agencies, the only probable problem being
included in the particulars or, better still, as an element of the determination and obtention of evidence to show that
the principal offense, may be conceded. After all, the the firearm is unlicensed.
plurality of crimes here is actually source from the very
provisions of Presidential Decree No. 1866 which sought to Now, if a separate information for homicide or murder is
"consolidate, codify and integrate" the "various laws and filed without alleging therein that the same was committed
presidential decrees to harmonize their provision" which by means of an unlicensed firearm, the case would not fall
"must be updated and revised in order to more effectively under Presidential Decree No. 1866. Even if the use of a
deter violators" of said laws. firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been
This would be akin to the legislative intendment underlying verified, the mere use of a firearm by itself, even if proved
the provisions of the Anti-Carnapping Act of 1972, wherein in that case, would not affect the accused either since it is
the principal crime to be charged is still carnapping, not an aggravating or qualifying circumstance.
although the penalty therefore is increased when the
owner, driver or occupant of the carnapped vehicle is Conversely, if the information is only for illegal possession,
killed. The same situation, with escalating punitive with the prosecution intending to file thereafter the charge
provisions when attended by a killing, are found in the for homicide or murder but the same is inexplicably
AntiPiracy and Anti-Highway Robbery Law of 1974 and the delayed or is not consolidated with the information for
AntiCattle Rustling Law of 1974, wherein the principal illegal possession, then any conviction that may result from
crimes still are piracy, highway robbery and cattle rustling. the former would only be for simple illegal possession. If,
Also, in the matter of destructive arson, the principal on the other hand, the separate and subsequent
offense when, inter alia, death results as a consequence of prosecution for homicide or murder prospers, the objective
the commission of any of the acts punished under said of Presidential Decree No. 1866 cannot be achieved since
article of the Code. the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such
In the present case, the academic value of specifying modifying circumstances as may be proved.
whether it is a case of illegal possession of firearm
resulting in homicide or murder, or, conversely, homicide In any event, the foregoing contingencies would run
or murder through the illegal possession and use of an counter to the proposition that the real offense committed
unlicensed firearm, would lie in the possible application of by the accused, and for which sole offense he should be
the provision on recidivism. Essentially, it would be in the punished, is the aggravated form of illegal possession of a
theoretical realm since, taken either way, the penalty for firearm. Further, it is the writer's position that the possible
aggravated illegal possession of a firearm is the single problems projected herein may be minimized or obviated if
indivisible penalty of death, in which case the provision on both offenses involved are charged in only one information
recidivism would not apply. If, however, the illegal or that the trial thereof, if separately charged, be invariably
possession is not established but either homicide or consolidated for joint decision. Conjointly, this is the course
murder is proved, then the matter of recidivism may have necessarily indicated since only a single composite crime is
some significance in the sense that, for purposes thereof, actually involved and it is palpable error to deal therewith
the accused was convicted of a crime against persons and and dispose thereof by segregated parts in piecemeal
he becomes a recidivist upon conviction of another crime fashion.
under the same title of the Code.
If we follow Barros, the conviction of the appellant for
Lastly, on the matter of the offense or offenses to be murder in Criminal Case No. 8178 must have to be set
considered and the penalty to be imposed when the aside. He should only suffer the penalty for the aggravated
unlawful killing and the illegal possession are charged in illegal possession of firearm in Criminal Case No. 8179.
separate informations, from what has been said the
appropriate course of action would be to consolidate the The Court en banc finds in this appeal an opportunity to
cases and render a joint decision thereon, imposing a reexamine the existing conflicting doctrines applicable to
single penalty for aggravated illegal possession of firearm prosecutions for murder or homicide and for aggravated
if such possession and the unlawful taking of life shall have illegal possession of firearm in instances where an
been proved, or for only the proven offense which may be unlicensed firearm is used in the killing of a person. After a
either simple illegal possession, homicide or murder per se. lengthy deliberation thereon, the Court en banc arrived at
The same procedural rule and substantive disposition the conclusion that the rule laid down in Tac-an, reiterated
should be adopted if one information for each offense was in Dozon, Caling, Jumamoy, Deunida, Dongco, Fernandez,
and Somooc is the better rule, for it applies the laws
concerned according to their letter and spirit, thereby Revised Penal Code treats rebellion as a crime apart from
steering this Court away from a dangerous course which murder, homicide, arson, or other offenses, such as illegal
could have irretrievably led it to an inexcusable breach of possession of firearms, that might conceivably be
the doctrine of separation of powers through Judicial committed in the course of a rebellion. Presidential Decree
legislation. That rule upholds and enhances the lawmaker's No. 1866 defines and punishes, as a specific offense, the
intent or purpose in aggravating the crime of illegal crime of illegal possession of firearms committed in the
possession of firearm when an unlicensed firearm is used course or as part of a rebellion.
in the commission of murder or homicide. Contrary to the
view of our esteemed brother, Mr. Justice Florenz D. As a matter of fact, in one case involving the
Regalado, in his Concurring and Dissenting Opinion in the constitutionality of Section I of Presidential Decree No.
case under consideration, Tac-an did not enunciate an 1866, the Court has explained that said provision of the
"unfortunate doctrine" or a "speciously camouflaged law will not be invalidated by the mere fact that the same
theory" which "constitutes an affront on doctrinal concepts act is penalized under two different statutes with different
of penal law and assails even the ordinary notions of penalties, even if considered highly advantageous to the
common sense." prosecution and onerous to the accused. It follows that,
subject to the presence of requisite elements in each case,
If Tac-an did in fact enunciate such an "unfortunate unlawful possession of an unlicensed firearm in furtherance
doctrine," which this Court has reiterated in a convincing of rebellion may give rise to separate prosecutions for a
number of cases and for a convincing number of years, so violation of Section I of Presidential Decree No. 1866, and
must the same verdict be made in our decision in People also a violation of Articles 134 and 135 of the Revised
vs. De Gracia,44 which was promulgated on 6 July 1994. In Penal Code on rebellion. Double jeopardy in this case
the latter case, we held that unlawful possession of an cannot be invoked because the first is an offense punished
unlicensed firearm in furtherance of rebellion may give rise by a special law while the second is a felony punished by
to separate prosecutions for a violation of Section I of P.D. the Revised Penal Code with variant elements.
No. 1866 and also for a violation of Articles 134 and 135 of
the Revised Penal Code on rebellion. A distinction between We cannot justify what we did in De Gracia with a claim
that situation and the case where an unlicensed firearm is that the virtue of fidelity to a controlling doctrine, i.e., of
used in homicide or murder would have no basis at all. In Tac-an, had compelled us to do so. Indeed, if Tac-an
De Gracia, this Court, speaking through Mr. Justice Florenz enunciated an "unfortunate doctrine" which is "an affront
D. Regalado, made the following authoritative on doctrinal concepts of penal law and assails even the
pronouncements: ordinary notions of common sense," then De Gracia should
have blazed the trail of a new enlightenment and forthwith
III. As earlier stated, it was stipulated and admitted by both set aside the "unfortunate doctrine" without any delay to
parties that from November 30, 1989 up to and until camouflage a judicial faux pas or a doctrinal quirk. De
December 9, 1989, there was a rebellion. Ergo, our next Gracia provided an excellent vehicle for an honorable
inquiry is whether or not appellant's possession of the departure from Tac-an because no attack on the latter was
firearms, explosives and ammunition seized and recovered necessary as the former merely involved other crimes to
from him was for the purpose and in furtherance of which the doctrine in Tac-an might only be applied by
rebellion. analogy. De Gracia did not even intimate the need to
reexamine Tac-an; on the contrary, it adapted the latter to
The trial court found accused guilty of illegal possession of another category of illegal possession of firearm qualified
firearms in furtherance of rebellion pursuant to paragraph by rebellion precisely because the same legal principle and
2 of Article 135 of the Revised Penal Code which states legislative purpose were involved, and not because De
that "any person merely participating or executing the Gracia wanted to perpetuate an "unfortunate doctrine" or
command of others in a rebellion shall suffer the penalty of to embellish "the expanding framework of our criminal law
prision mayor in its minimum period." The court below held from barnacled ideas which have not grown apace with
that appellant De Gracia, who had been servicing the conceptual changes over time," as the concurring and
personal needs of Col. Matillano (whose active armed dissenting opinion charges.
opposition against the Government, particularly at the
Camelot Hotel, was well known), is guilty of the act of The majority now reiterates the doctrine in Tac-an and the
guarding the explosives and "mololov" bombs for and in subsequent cases not because it has become hostage to
behalf of the latter. We accept this finding of the lower the "inertia of time [which] has always been the obstacle to
court. the virtues of change," as the concurring and dissenting
opinion finds it to be, but rather because it honestly
The above provision of the law was, however, erroneously believes that Tac-an laid down the correct doctrine. If P.D.
and improperly used by the court below as a basis in No. 1866 as applied in Tac-an is an "affront on doctrinal
determining the degree of liability of appellant and the concepts of penal laws and assails even the ordinary
penalty to be imposed on him. It must be made clear that notions of common sense," the blame must not be laid at
appellant is charged with the qualified offense of illegal the doorsteps of this Court, but on the lawmaker's. All that
possession offirearms in furtherance of rebellion under the Court did in Tac-an was to apply the law, for there was
Presidential Decree No. 1866 which, in law, is distinct from nothing in that case that warranted an interpretation or the
the crime of rebellion punished under Article 134 and 135 application of the niceties of legal hermeneutics. It did not
of the Revised Penal Code. There are two separate statutes forget that its duty is merely to apply the law in such a way
penalizing different offenses with discrete penalties. The that shall not usurp legislative powers by judicial legislation
and that in the course of such application or construction it component since without the accompanying death, the
should not make or supervise legislation, or under the crime would merely be simple illegal possession of a
guise of interpretation modify, revise, amend, distort, firearm under the first paragraph of Section 1.
remodel, or rewrite the law, or give the law a construction
which is repugnant to its terms.45 The second paragraph of Section I of P.D. No. 1866 does
not warrant and support a conclusion that it intended to
Murder and homicide are defined and penalized by the treat "illegal possession and resultant killing" (italics
Revised Penal Code46 as crimes against persons. They are supplied) "as a single and integrated offense" of illegal
mala in se because malice or dolo is a necessary ingredient possession with homicide or murder. It does not use the
therefor.47 On the other hand, the offense of illegal clause as a result or on the occasion of to evince an
possession of firearm is defined and punished by a special intention to create a single integrated crime. By its
penal law,48 P.D. No. 1866. It is a malum prohibitum49 unequivocal and explicit language, which we quote to be
which the lawmaker, then President Ferdinand E. Marcos, clearly understood:
in the exercise of his martial law powers, so condemned
not only because of its nature but also because of the If homicide or murder is committed with the use of an
larger policy consideration of containing or reducing, if not unlicensed firearm, the penalty of death shall be imposed.
eliminating, the upsurge of crimes vitally affecting public (italics supplied)
order and safety due to the proliferation of illegally
possessed and manufactured firearms, ammunition, and the crime of either homicide or murder is committed NOT
explosives. If intent to commit the crime were required, AS A RESULT OR ON THE OCCASION of the violation of
enforcement of the decree and its policy or purpose would Section 1, but WITH THE USE of an unlicensed firearm,
be difficult to achieve, Hence, there is conceded wisdom in whose possession is penalized therein. There is a world of
punishing illegal possession of firearm without taking into difference, which is too obvious, between (a) the
account the criminal intent of the possessor. All that is commission of homicide or murder as a result or on the
needed is intent to perpetrate the act prohibited by law, occasion of the violation of Section 1, and (b) the
coupled, of course, by animus possidendi. However, it must commission of homicide or murder with the use of an
be clearly understood that this animus possidendi is unlicensed firearm. In the first, homicide or murder is not
without regard to any other criminal or felonious intent the original purpose or primary objective of the offender,
which an accused may have harbored in possessing the but a secondary event or circumstance either resulting
firearm.50 from or perpetrated on the occasion of the commission of
that originally or primarily intended. In the second, the
A long discourse then on the concepts of malum in se and killing, which requires a mens rea, is the primary purpose,
malum prohibitum and their distinctions is an exercise in and to carry that out effectively the offender uses an
futility. unlicensed firearm.

We disagree for lack of basis the following statements of As to the question then of Mr. Justice Regalado of whether
Mr. Justice Regalado in his Concurring and Dissenting this Court should also apply the rule enunciated here to
Opinion, to wit: P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of
1974), P.D. No. 533 (Anti-Cattle Rustling Law of 1974), and
The second paragraph of the aforestated Section I P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer
expressly and unequivocally provides for such illegal Penalties Therefor), the answer is resoundingly in the
possession and resultant killing as a single integrated negative. In those cases, the lawmaker clearly intended a
offense which is punished as such. The majority not only single integrated offense or a special complex offense
created two offenses by dividing a single offense into two because the death therein occurs as a result or on the
but, worse, it resorted to the unprecedented and invalid occasion of the commission of the offenses therein
act of treating the original offense as a single integrated penalized or was not the primary purpose of the offender,
crime and then creating another offense by using a unlike in the second paragraph of Section I of P.D. No.
component crime which is also an element of the former. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:

It would already have been a clear case of judicial SEC, 3. Penalties. - Any person who commits piracy or
legislation if the illegal possession with murder punished highway robbery /brigandage as herein defined, shall, upon
with a single penalty have been divided into two separate conviction by competent court be punished by:
offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of a. Piracy. - The penalty of reclusion temporal in its medium
legislative powers for this Court to now, as it has done, and maximum periods shall be imposed. If physical injuries
or other crimes are committed as a result or on the
treat that single offense as specifically described by the occasion thereof, the penalty of reclusion perpetua shall be
law and impose reclusion perpetua therefor (since the imposed. If rape, murder or homicide is committed as a
death penalty for that offense is still proscribed), but then result or on the occasion of piracy, or when the offenders
proceed further by plucking out therefrom the crime of abandoned the victims without means of saving
murder in order to be able to impose the death sentence. themselves, or when the seizure is accomplished by firing
For indeed, on this score, it is beyond cavil that in the upon or boarding a vessel, the mandatory penalty of death
aggravated form of illegal possession, the consequential shall be imposed.
murder (or homicide) is an integrated element or integral
b. Highway RobberylBrigandage.- The penalty of reclusion illegal possession of firearm whenever the unlicensed
temporal in its minimum period shall be imposed. If firearm is used in killing a person. The only purpose of the
physical injuries or other crimes are committed during or provision is to increase the penalty prescribed in the first
on the occasion of the commission of robbery or paragraph of Section I - reclusion temporal in its maximum
brigandage, the penalty of reclusion temporal in its period to reclusion perpetua - to death, seemingly because
medium and maximum periods shall be imposed. If of the accused's manifest arrogant defiance and contempt
kidnapping for ransom or extortion, or murder or homicide, of the law in using an unlicensed weapon to kill another,
or rape is committed as a result or on the occasion thereof, but never, at the same time, to absolve the accused from
the penalty of death shall be imposed. (Italics supplied) any criminal liability for the death of the victim.

(b) Section 8 of P.D. No. 533 reads in part as follows: Neither is the second paragraph of Section I meant to
punish homicide or murder with death if either crime is
SEC.8. Penal provisions.-Any person convicted of cattle committed with the use of an unlicensed firearm, i.e., to
rustling as herein defined shall, irrespective of the value of consider such use merely as a qualifying circumstance and
the large cattle involved, be punished by prision mayor in not as an offense. That could not have been the intention
its maximum period to reclusion temporal in its medium of the lawmaker because the term "penalty" in the subject
period if the offense is committed without violence against provision is obviously meant to be the penalty for illegal
or intimidation of persons or force upon things. If the possession of firearm and not the penalty for homicide or
offense is committed with violence against or intimidation murder. We explicitly stated in Tac-an:
of persons or force upon things, the penalty of reclusion
temporal in its maximum period to reclusion perpetua shall There is no law which renders the use of an unlicensed
be imposed. If a person is seriously injured or killed as a firearm as an aggravating circumstance in homicide or
result or on the occasion of the commission of cattle murder. Under an information charging homicide or
rustling. the penalty of reclusion perpetua to death shall be murder, the fact that the death weapon was an unlicensed
imposed. (italics supplied) firearm cannot be used to increase the penalty for the
second offense of homicide or murder to death .... The
and (c) Section 3 of P.D. No. 534 reads as follows: essential point is that the unlicensed character or condition
of the instrument used in destroying human life or
SECTION. 3. Penalties.- Violations of this Decree and the committing some other crime, is not included in the
rules and regulations mentioned in paragraph (f) of Section inventory of aggravating circumstances set out in Article
I hereof shall be punished as follows: 14 of the Revised Penal Code.

a. by imprisonment from 10 to 12 years, if explosives are A law may, of course, be enacted making the use of an
used: Provided, that if the explosion results (1) in physical unlicensed firearm as a qualifying circumstance. This
injury to person, the penalty shall be imprisonment from would not be without precedent. By analogy, we can cite
12 to 20 years, or (2) in the loss of human life, then the Section 17 of B.P. Blg. 179, which amended the Dangerous
penalty shall be imprisonment from 20 years to life, or Drugs Act of 1972 (R.A. No. 6425). The said section
death; provides that when an offender commits a crime under a
state of addiction, such a state shall be considered as a
b. by imprisonment from 8 to 10 years, if obnoxious or qualifying aggravating circumstance in the definition of the
poisonous substances are used: Provided, that if the use of crime and the application of the penalty under the Revised
such substances results (1) in physical injury to any Penal Code.
person, the penalty shall be imprisonment from 10 to 12
years, or (2) in the loss of human life, then the penalty In short, there is nothing in P.D. No. 1866 that manifests,
shall be imprisonment from 20 years to life, or death; x x x even vaguely, a legislative intent to decriminalize homicide
(italics supplied) or murder if either crime is committed with the use of an
unlicensed firearm, or to convert the offense of illegal
The unequivocal intent of the second paragraph of Section possession of firearm as a qualifying circumstance if the
I of P.D. No. 1866 is to respect and preserve homicide or firearm so illegally possessed is used in the commission of
murder as a distinct offense penalized under the Revised homicide or murder. To charge the lawmaker with that
Penal Code and to increase the penalty for illegal intent is to impute an absurdity that would defeat the clear
possession of firearm where such a firearm is used in intent to preserve the law on homicide and murder and
killing a person. Its clear language yields no intention of impose a higher penalty for illegal possession of firearm if
the lawmaker to repeal or modify, pro tanto, Articles 248 such firearm is used in the commission of homicide or
and 249 of the Revised Penal Code, in such a way that if an murder.
unlicensed firearm is used in the commission of homicide
or murder, either of these crimes, as the case may be, Evidently, the majority did not, as charged in the
would only serve to aggravate the offense of illegal concurring and dissenting opinion, create two offenses by
possession of firearm and would not anymore be dividing a single offense into two. Neither did it resort to
separately punished. Indeed, the words of the subject the "unprecedented and invalid act of treating the original
provision are palpably clear to exclude any suggestion that offense as a single integrated crime and then creating
either of the crimes of homicide and murder, as crimes another offense by using a component crime which is also
mala in se under the Revised Penal Code, is obliterated as an element of the former." The majority has always
such and reduced as a mere aggravating circumstance in maintained that the killing of a person with the use of an
illegally possessed firearm gives rise to two separate complex, compound and socalled special complex crimes.
offenses of (a) homicide or murder under the Revised Penal Verily, I cannot conceive of how a person convicted of
Code, and (b) illegal possession of firearm in its aggravated estafa through falsification under Article 48 can be validly
form. prosecuted anew for the same offense or either estafa or
falsification; or how the accused convicted of robbery with
What then would be a clear case of judicial legislation is an homicide under Article 294 can be legally charged again
interpretation of the second paragraph of Section I of P,D. with either of the same component crimes of robbery or
No~ 1866 that would make it define and punish a single homicide; or how the convict who was found guilty of rape
integrated offense and give to the words WITH THE USE OF with homicide under Article 335 can be duly haled before
a similar meaning as the words AS A RESULT OR ON THE the court again to face charges of either the same rape or
OCCASION OF, a meaning which is neither born out by the homicide. Why, then, do we now sanction a second
letter of the law nor supported by its intent. Worth noting is prosecution for murder in the cases at bar since the very
the rule in statutory construction that if a statute is clear, same offense was an indispensable component for the
plain, and free from ambiguity, it must be given its literal other composite offense of illegal possession of firearm
meaning and applied without attempted interpretation,51 with murder? Why would the objection of non bis in idim as
leaving the court no room for any extended ratiocination or a bar to a second jeopardy lie in the preceding examples
rationalization of the law.52 and not apply to the cases now before us?

Peregrinations into the field of penology such as on the We are unable to agree to the proposition. For one, the
concept of a single integrated crime or composite crimes, issue of double jeopardy is not raised in this case. For
or into the philosophical domain of integration of the another, the so-called "same-evidence" test is not a
essential elements of one crime to that of another would conclusive, much less exclusive, test in double jeopardy
then be unnecessary in light of the clear language and cases of the first category under the Double Jeopardy
indubitable purpose and intent of the second paragraph of Clause which is covered by Section 21, Article III of the
Section I of P.D. No. 1866. The realm of penology, the Constitution and which reads as follows:
determination of what should be criminalized, the
definition of crimes, and the prescription of penalties are No person shall be twice put in jeopardy of punishment for
the exclusive prerogatives of the legislature. As its wisdom the same offense. If an act is punished by a law and an
may dictate, the legislature may even create from a single ordinance, conviction or acquittal under either shall
act or transaction various offenses for different purposes constitute a bar to another prosecution for the same act.
subject only to the limitations set forth by the Constitution.
This Court cannot dictate upon the legislature to respect Note that the first category speaks of the same offense.
the orthodox view concerning a single integrated crime or The second refers to the same act. This was explicitly
composite crimes. distinguished in Yap vs. Lutero,54 from where People vs.
Relova55 quotes the following:
The only apparent obstacle to the imposition of cumulative
penalties for various acts is the rule on double jeopardy. Thirdly, our Bill of Rights deals with two (2) kinds of double
This brings us to the proposition in the dissenting opinion jeopardy. The first sentence of clause 20, Section 1, Article
of Mr. Justice Regalado that the majority view offends the III of the Constitution, ordains that "no person shall be
constitutional bar against double jeopardy under the twice put in jeopardy of punishment for the same offense."
"same-evidence" test enunciated in People vs. Diaz.53 He (italics in the original). The second sentence of said clause
then concludes: provides that "if an act is punishable by a law and an
ordinance, conviction or acquittal under either shall
In the cases now before us, it is difficult to assume that the constitute a bar to another prosecution for the same act."
evidence for the murder in the first charge of aggravated Thus, the first sentence prohibits double jeopardy of
illegal possession of firearm with murder would be different punishment for the same offense whereas, the second
from the evidence to be adduced in the subsequent charge contemplates double jeopardy of punishment for the same
for murder alone. In the second charge, the illegal act. Under the first sentence, one may be twice put in
possession is not in issue, except peripherally and jeopardy of punishment of the same act, provided that he
inconsequentially since it is not an element or modifying is charged with different offenses, or the offense charged
circumstance in the second charge, hence the evidence in one case is not included in, or does not include, the
therefor is immaterial. But, in both prosecutions, the crime charged in the other case. The second sentence
evidence on murder is essential, in the first charge applies, even if the offenses charged are not the same,
because without it the crime is only simple illegal owing to the fact that one constitutes a violation of an
possession, and, in the second charge, because murder is ordinance and the other a violation of a statute. If the two
the very subject of the prosecution. Assuming that all the charges are based on one and the same act, conviction or
other requirements under Section 7, Rule 117 are present, acquittal under either the law or the ordinance shall bar a
can it be doubted that double jeopardy is necessarily prosecution under the other. Incidentally, such conviction
present and can be validly raised to bar the second or acquittal is not indispensable to sustain the plea of
prosecution for murder? double jeopardy of punishment for the same offense. So
long as jeopardy has been attached under one of the
In fact, we can extrapolate the constitutional and informations charging said offense, the defense may be
reglementary objection to the cases of the other composite availed of in the other case involving the same offense,
crimes for which a single penalty is imposed, such as the
even if there has been neither conviction nor acquittal in subject provision would violate the constitutional bar
either case. against double jeopardy is unfounded.

Elsewise stated, where the offenses charged are penalized The penalty which the trial court imposed in Criminal Case
either by different sections of the same statute or by No. 8179 for illegal possession of firearm in its aggravated
different statutes, the important inquiry relates to the form must, however, be modified. The penalty prescribed
identify of offenses charged. The constitutional protection by P.D. No. 1866 is death. Since Section 19(1), Article III of
against double jeopardy is available only where an identity the Constitution prohibits the imposition of the death
is shown to exist between the earlier and the subsequent penalty, the penalty next lower in degree, reclusion
offenses charged.56 The question of identity or lack of perpetua, must be imposed.
identity of offenses is addressed by examining the
essential elements of each of the two offenses charged, as WHEREFORE, the instant appeal is DISMISSED, and the
such elements are set out in the respective legislative challenged decision of 30 September 1993 of Branch 1 of
definitions of the offenses involved.57 the Regional Trial Court of Bohol finding accusedappellant
DANIEL QUIJADA y CIRCULADO guilty beyond reasonable
It may be noted that to determine the "same offense" doubt of the crime of murder in Criminal Case No. 8178
under the Double Jeopardy Clause of the Fifth Amendment and of illegal possession of firearm in its aggravated form
of the Constitution of the United States of America which in Criminal Case No. 8179 is AFFIRMED. The penalty
reads: imposed in the first case, as amended by the Order of 29
October 1993, is sustained; however, the penalty imposed
[N]or shall any person be subject for the same offense to in the second case is changed to Reclusion Perpetua from
be twice put in jeopardy of life or limb .... the indeterminate penalty ranging from Seventeen (17)
years, Four (4) months, and One (1) day, as minimum, to
the rule applicable is the following: "where the same act or Twenty (20) years and One (1) day, as maximum.
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether Costs de oficio.
there are two offenses or only one, is whether each
provision requires proof of an additional fact which the SO ORDERED.
other does not."58
Padilla, Bellosillo, Melo, Francisco, Panganiban, and Torres,
The Double Jeopardy Clause of the Constitution of the Jr., JJ., concur.
United States of America was brought to the Philippines
through the Philippine Bill of I July 1902, whose Section 5 REGALADO, J., concurring and dissenting opinion:
provided, inter alia:
I concur in the majority opinion only insofar as it holds
[N]o person for the same offense shall be twice put in accusedappellant Daniel Quijada y Circulado guilty of the
jeopardy of punishment .... crime of murder with the use of an illegally possessed
firearm and punishes him therefor. I confess, however, that
This provision was carried over in identical words in Section I cannot in conscience reconcile myself with the
3 of the Jones Law of 29 August 1916.59 Then under the unfortunate doctrine first announced in People vs. Tac-an,1
1935 Constitution, the Jones Law provision was recast with and now reiterated by the majority, that said appellant
the addition of a provision referring to the same act. Thus, should be twice penalized for two supposedly distinct
paragraph 20, Section 1, Article III thereof provided as offenses involving (1) the murder of the victim with an
follows: illegally possessed firearm, under Presidential Decree No.
1866 and (2) the same murder of that same victim, this
No person shall be twice put in jeopardy of punishment for time under Article 248 of the Revised Penal Code.
the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall I have heretofore rejected this very same dual verdicts of
constitute a bar to another prosecution for the same act. conviction in my concurring opinion in People vs. Barros,2
which found favor with all my brethren in the Second
This was adopted verbatim in Section 22, Article IV of the Division, 'Including Chief Justice Andres R, Narvasa acting
1973 Constitution and in Section 21, Article III of the as the ponente of the decision in that case and in his
present Constitution. capacity as the Chairman of that Division, Indeed, I feel
quite strongly that through the play on words that illegal
This additional-element test in Lutero and Relova and in possession of firearm used in a killing is punishable under
Blockburger, Gore, and Missouri would safely bring the Presidential Decree No. 1866, while the same killing with
second paragraph of Section I of P.D. No. 1866 out of the the same illegally possessed firearm is separately punished
proscribed double jeopardy principle. For, undeniably, the under Article 248 of the Revised Penal Code, we have been
elements of illegal possession of firearm in its aggravated beguiled by the semantical tyranny of shifting emphases.
form are different from the elements of homicide or
murder, let alone the fact that these crimes are defined I endeavored to analyze what I considered the error of that
and penalized under different laws and the former is approach and thereby expose the speciously camouflaged
malum prohibitum, while both the latter are mala in se. theory espoused in Tac-an which I believe,
Hence, the fear that the majority's construction of the
and still do, constitutes an affront on doctrinal concepts of The situation thus borders closer to the concept of complex
penal law and assails even the ordinary notions of common crime proper, technically known as a delito complejo,
sense. To avoid excursive reading, I quote my humble rather than to the postulate of two separate crimes. It is
explanation in Barros somewhat at length: true that former doctrines were to the effect that there can
be no complex crime where one of the component offenses
Under the dispositions heretofore made by the Court is punished by a special law. The rationale therefore was
involving the crimes of homicide or murder through the that in a complex crime, Article 48 of the Code prescribes
use of an illegally possessed firearm, and the same is true that the penalty shall be for the graver offense to be
with the case at bar, the following queries may be posed: applied in its maximum period. Since, at that time, the
penalties for crimes provided in special laws were not
1. Should the crimes of homicide or murder, which are the divided into periods, it would be impossible to apply Article
end results. be punished separately from and in addition to 48.
the liability for illegal possession of the firearm as the
instrument Or the means employed? That ratiocination no longer applies now, specifically with
respect to the case at bar, since the penalties in
2. On the other hand, should not the principal sole offense Presidential Decree No. 1866 were all taken from the scale
be the aggravated form of illegal possession of a firearm of penalties in the Code. The only possible difficulty in this
under the second paragraph of Section I of Presidential novatory approach would be on the first kind of complex
Decree No, 1866, with the homicide or murder being crime, that is, the delito compuesto since it exists "(w)hen
absorbed therein as an integral element of the crime in its a single act constitutes two or more grave or less
aggravated form? gravefelonies." The use of that particular term for the
delicts committed bars the application of that form of
3. If either homicide or murder and illegal possession Of complex crime to offenses under Presidential Decree No.
firearm are so charged in one and the same information, 1866, since "felonies" are offenses provided and defined in
should they be considered and punished as a single the Code.
offense of homicide or murder with the use of an
unlicensed firearm, or as a case of aggravated illegal That objection would not, however, apply to a delito
possession of firearm resulting in homicide or murder, with complejo since it is sufficient therefor that "an offense is a
the death penalty to be imposed in either case? necessary means for committing the other." By these
considerations, however, the writer does not mean to imply
4. If homicide or murder is charged in a separate that a killing through the use of an illegallypossessed
information while aggravated illegal possession of firearm firearm is a delito complejo under Article 48 of the Code.
is made the subject of a separate indictment filed As was carefully stated, such an offense merely borders
simultaneously with or prior or subsequent to the former, closer to or approximates the concept of a delito complejo,
but with the respective informations on the killing and the but it thereby emphasizes the thesis that the offenses
illegal possession mutually alleging facts regarding the should not be considered as separate crimes to be
other offense as an attendant circumstance, should the individually punished under the principle of material
accused be held liable for two distinct crimes regardless of plurality.
whether the cases are jointly tried by the same court or
separately by the two courts where the informations were This premise accordingly brings up the second query as to
independently filed? whether or not the crime should properly be the
aggravated illegal possession of an unlicensed firearm
On the first question, it is true that from the theoretical through the use of which a homicide or murder is
concept of the requisite mens rea, the killing as the result committed. It is submitted that an accused so situated
of the criminal design arose from a specific criminal intent, should be liable only for the graver offense of aggravated
that is. the animus interficendi or intent to kill. The illegal illegal possession of the firearm punished by death under
possession of the firearm requires a discrete and specific the second paragraph of Section 1, Presidential Decree No.
intent to possess the weapon, which is the animus 1866, and it is on this point that the writer dissents from
possidendi, coupled with the physical possession thereof. the holding which would impose a separate penalty for the
homicide in addition to that for the illegal possession of the
It would, therefore, appear at first blush that the two firearm used to commit the former.
offenses having arisen from different criminal intents, this
would be, under the philosophical bases for concurso de If the possession of the unlicensed firearm is the only
delitos, a case of material or real plurality under which offense imputable to the accused, the Court has correctly
different crimes have been committed and for each of held that to be the simple possession punished with
which a separate criminal liability attaches. The flaw in this reclusion temporal in its maximum period to reclusion
approach, however, is that although two crimes have been perpetua in the first paragraph of Section 1. Where,
committed, they are not altogether separate or complementarily, the unlicensed firearm is used to commit
disconnected from each other both in law and in fact. The homicide or murder, then either of these felonies will
illegally possessed firearm having been the weapon used convert the erstwhile simple illegal possession into the
in the killing, the former was at least the necessary, graver offense of aggravated illegal possession. In other
although not an indispensable, means to commit the other. words, the homicide or murder constitutes the essential
element for integrating into existence the capital offense of
the aggravated form of illegal possession of a firearm.
Legally, therefore, it would be illogical and unjustifiable to This would be akin to the legislative intendment underlying
use the very same offenses of homicide or murder as the provisions of the, Anti-Carnapping Act of 1972 (R.A. No,
integral elements of and to create the said capital offense, 6539, August 26, 1972), wherein the principal crime to be
and then treat the former all over again as independent charged is still carnapping, although the penalty therefore
offenses to be separately punished further, with penalties is increased when the owner, driver or occupant of the
immediately following the death penalty to boot. carnapped vehicle is killed. The same situation, with
escalating punitive provisions when attended by a killing,
The situation contemplated in the second query is, from are found in the AntiPiracy and Anti-Highway Robbery Law
the punitive standpoint, virtually of the nature of the so- of 1974 (P.D. No. 5 3 2. August 8. 1974) and the Anti-Cattle
called "special complex crimes," which should more Rustling Law of 1974 (P.D. No. 533, August 8, 1974),
appropriately be called composite crimes, punished in wherein the principal crimes still are piracy, highway
Article 294, Article 297 and Article 335. They are neither of robbery and cattle rustling. Also, in the matter of
the same legal basis as nor subject to the rules on complex destructive arson (Article 320, Revised Penal Code, as last
crimes in Article 48, since they do not consist of a single amended by R.A. No. 7659), the principal offense remains
act giving rise to two or more grave or less grave felonies as arson although the same becomes a capital offense
nor do they involve an offense being a necessary means to when inter alia, death results as a consequence of the
commit another, However, just like the regular complex commission of any of the acts punished under said article
crimes and the present case Of aggravated illegal of the Code.
possession of firearms, only a single penalty is imposed for
each of such composite crimes although composed of two In the present case, the academic value of specifying
or more offenses. whether it is a case of illegal possession of firearm
resulting in homicide or murder, or, conversely, homicide
On the other hand, even if two felonies would otherwise or murder through the illegal possession and use of an
have been covered by the conceptual definition of a unlicensed firearm, would lie in the possible application of
complex crime under Article 48, but the Code imposes a the provision on recidivism. Essentially, it would be in the
single definite penalty therefor, it cannot also be punished theoretical realm since, taken either way, the penalty for
as a complex crime, much less as separate offenses, but aggravated illegal possession of a firearm is the single
with only the single penalty prescribed by law. Thus, even indivisible penalty of death, in which case the provision on
where a single act results in two less grave felonies of recidivism would not apply. If, however, the illegal
serious physical injuries and serious slander by deed, the possession is not established but either homicide or
offense will not be punished as a delito compuesto under murder is proved, then the matter of recidivism may have
Article 48 but as less serious physical injuries with some significance in the sense that, for purposes thereof,
ignominy under the second paragraph of Article 265. the accused was convicted of it crime against persons and
(People vs. Lasala, L-12141, January 30, 1962, 4 SCRA 61.) he becomes a recidivist upon conviction, or another crime
The serious slander by deed is integrated into and under the same title of the Code.
produces a graver offense, and the former is no longer
separately punished. Lastly, on the matter of the offense or offenses to be
considered and the penalty to be imposed when the
What is, therefore, sought to be stressed by such unlawful killing and the illegal possession are charged in
alternative illustration, as well as the discussion on separate informations, from what has been said the
complex and composite crimes, is that when an offense appropriate course of action would be to consolidate the
becomes a component of another, the resultant crime cases and render a joint decision thereon, imposing a
being correspondingly punished cis thus aggravated by the single penalty for aggravated illegal possession of firearm
integration of the other, the former is not to be further if such possession and the unlawful taking of life shall have
separately punished as the majority would want to do with been proved, or for only the proven offense which may be
the homicide involved in the case at bar, either simple illegal possession, homicide or murder per se.
The same procedural rule and substantive disposition
With the foregoing answers to the second question, the should be adopted if one information for each offense was
third I inquiry is more of a question of classification for drawn up and these informations were individually
purpose of the other provisions of the Code. The theory in assigned to different courts or branches of the same court.
Tac-an that the principal offense is the aggravated form of
illegal possession of firearm and the killing shall merely be Indeed, the practice of charging the offense of illegal
included in the particulars or, better still, as an element of possession separately from the homicide Or murder could
the principal offense, be susceptible of abuse since it entails undue
concentration of prosecutorial powers and discretion.
may be conceded. After D, the plurality of crimes here is Prefatorily, the fact that the killing was committed with a
actually sourced from the very provisions of Presidential firearm will necessarily be known to the police or
Decree No. prosecutorial agencies, the only probable problem being
the determination and obtention of evidence to show that
1866 which sought to "consolidate, codify and integrate" the firearm is unlicensed.
the various laws and presidential decrees to harmonize
their provisions" which "must be updated and revised. in Now, if a separate information for homicide or murder is
order to more effectively deter violators" of said laws. filed without alleging therein that the same was committed
by means of an unlicensed firearm, the case would not fall
under Presidential Decree No. 1866. Even if the use of a is punished under the Revised Penal Code, they can be
firearm is alleged therein, but without alleging the lack of a validly prosecuted and punished separately The trial court
license therefor as where that fact has not yet been imposed the death penalty in each of said cases, the
verified, the mere use of a firearm by itself, even if proved offenses having been committed in 1984 with the decision
in that case, would not affect the accused either since it is rendered therein in 1986, but this Court modified those
not an aggravating or qualifying circumstance. sentences to two penalties of reclusion perpetua because
of the supervenience of the 1987 Constitution.
Conversely, if the information is only for illegal possession, Significantly, it was explicitly accepted therein that
with the prosecution intending to file thereafter the charge "(a)lthough the circumstance that human life was
for homicide or murder but the same is inexplicably destroyed with the use of an unlicensed firearm is not an
delayed or is not consolidated with the information for aggravating circumstance x x x it may still be taken into
illegal possession, then any conviction that may result from account to increase the penalty to death (reclusion
the former would only be for simple illegal possession. If, perpetua under the 1987 Constitution) because of the
on the other hand, the separate and subsequent explicit provision of P. D. No. 1866."
prosecution for homicide or murder prospers, the objective
of Presidential Decree No. 1866 cannot be achieved since 2. That mother case of Tac-an gave birth to a progeny of
the penalty imposable in that second prosecution will only identically-based decisions, the first being People vs.
be for the unlawful killing and further subject to such Tioson3 where, in addition to the rationale that the
modifying circumstances as may be proved. offenses were punished under separate laws, the theory of
separate penalties was further sought to be justified thus:
In any event, the foregoing contingencies would run "it does not, however, follow that the homicide or murder is
counter to the proposition that the real offense committed absorbed in the offense; otherwise an anomalous absurdity
by the accused, and for which sole offense he should be results whereby a more serious crime defined and
punished, is the aggravated form of illegal possession of a penalized in the Revised Penal Code is absorbed by a
firearm. Further, it is the writer's position that the possible statutory offense, which is just a malum prohibitum."
problems projected herein may be minimized or obviated if
both offenses involved are charged in only one information 3. Next came People vs. Caling4 which is notable for lucidly
or that the trial thereof, if separately charged, be invariably laying down the distinction between what it categorized for
consolidated for joint decision. Conjointly, this is the course easy reference as the simple and aggrevated forms of
necessarily indicated since only a single composite crime illegal possession of unlicensed firearms, although it
is actually involved and it is palpable error to deal adhered to the theory of separate offenses where a killing
therewith and dispose thereof by segregated parts in is involved but hewing only to the reason that this is
piecemeal fashion. (Italics supplied for emphases, with because these offenses are punished by separate laws, as
some footnotes in the original. opinion being incorporated theorized in Tac-an. In Caling, however, the accused was
in the text by way of documentation) acquitted and no application of penalties was actually
made,
With appropriate respect for the opinions en contra, take
this opportunity not only to elaborate upon and further 4, People vs. Jumamoy5 sustained separate convictions for
clarify my aforequoted views in Barros but, hopefully, to murder and the aggravated form of illegal possession of an
also cleanse the expanding framework of our criminal law unlicensed firearm on the same rationale as Tioson, with
from ideas which have not grown apace with conceptual an added advertence to People vs. Doriguez6 that such
changes over time. separate convictions will theoretically not run afoul of the
prohibition against double jeopardy.
My position in Barros is challenged as being a novel theory
which sets aside the doctrine followed in some cases 5. This was followed by People vs. Deunjda7 where, on two
previously decided by the Court and the rationale on which charges for murder and aggravated illegal possession of
they were based. That is understandable, since the inertia firearms, the accused was convicted only of the latter
of time has always been the obstacle to the virtues of offense since the prosecution withdrew the charge for
change. That mind-set appears to predominate in the murder. The Court, in this case, considered the withdrawal
action of the majority in the instant cases. of the indictment for murder as erroneous on the bases of
the doctrines in Tac-an, Caling and Tioson,
However, it is precisely for that reason that we are now
reviewing those doctrines, as we have done in a number of 6. In People vs. Somooc,8 the accused who committed
cases before, instead of taking a stance of infallibility. And, homicide with the use of an illegally possessed unlicensed
if it does turn out that we are mistaken, then in law and in firearm was charged with and convicted of the aggravated
conscience we must act accordingly, for, as has been said, form of illegal possession and punished by reclusion
the beauty of a mistake is that it can be corrected; the perpetua since the offense was committed in 1988. The
tragedy is that it can be perpetuated. Court called attention to the doctrine and ratiocination in
Caling.
I 1. It is obvious that our present problem had its origin in
the aforecited case of People vs. Tac-an where the It will, therefore, be observed that "the settled ruling in the
controversial theory was first laid down that since one aforementioned cases" is actually a skein drawn from the
offense (illegal possession of an unlicensed firearm) is same single thread originally introduced by Tac-an and
penalized under a special statute while the other (murder) stitched into the Jurisprudential fabric with some
permutative designs. It is not necessarily "unfortunate if earthshaking legal tableau, The objections to the doctrine
we should suddenly depart therefrom" where the benefit of of absorption here is reminiscent of what Judge Agustin P.
a second view and the grace of hindsight dictate such a Montesa reportedly stated, as quoted in People vs.
course of action. Hernandez, et al.,12 that: "The theory of absorption
tenaciously adhered to by the defense to the effect that
The Court will recall the series of cases, when the rebellion absorbs all these more serious offenses is
proscription against the imposition of the death penalty preposterous, to say the least, considering that it is both
was still upon us, wherein we initially provided in our physically and metaphysically impossible for a smaller unit
decisions different and inconsistent rules on the proper or entity to absorb a bigger one."
periods of the penalty for murder, at that time punishable
by reclusion temporal in its maximum period to death. We Unfortunately, that astute observation was rejected by this
eventually settled on reclusion perpetua as the medium Court, and advisedly so, since we are bound by legal
period.9 Of more recent memory was the spate of precepts and not by physical or metaphysical laws. It is
conflicting. positions on the penalty for illegal possession now an accepted dictum that the life of the law is not
and traffic in dangerous drugs, and the amendments necessarily logic but experience, These considerations
brought about by Republic Act No. 7659, until we arrived at must have prompted the Court to also defend the doctrine
a solution in People vs. Simon.10 Nobody was heard to of absorption in treason cases,13 holding that more serious
complain that we were running afoul of the doctrine of offenses committed for treasonous purposes are absorbed
stare decisis, as now appears to be the stance of the in the former, with the piquant observation in Labra that
majority. "(t)he factual complexity of the crime of treason does not
endow it with the functional ability of worm multiplication
Indeed, if hard cases make bad law, bad law also makes or amoeba reproduction."
hard cases, whether what is involved is statutory or case
law. Of course, in discharging our duty of judicial In the scheme of penalties under the Revised Penal Code,
interpretation, there may be not only merit but also facility, it is accepted that a lesser offense may absorb a graver
if not the expediency of the slothful path of least offense. As already stated, the lesser offense of rebellion
resistance, in just adopting the rule of uniformity on the which is punished by prision mayor absorbs the graver
bases of past decision. But, equally as commendable as offense of murder which is now punished by reclusion
the doctrine of stare decisis itself, is the wellknown and perpetua to death, and all other offenses even with higher
ancient wisdom in the reminder that such doctrine does penalties if committed in furtherance of rebellion.14 On a
not mean blind adherence to precedents. lower level of comparison and closer to the case at bar, the
lesser offense of forcible abduction which is punished by
Obviously, because of the reasoning in Tac-an, the majority reclusion temporal15 absorbs the graver offense of illegal
opinion emphasizes that in imposing a single penalty of detention of a woman which is punished by reclusion
reclusion perpetua for the qualified violation of Presidential perpetua to death.16 The lower offense of slaver),
Decree No. 1866 and treating murder merely as an involving the kidnapping of a person which is punished by
element of the statutory offense, an incongruous situation prision mayor17 absorbs the higher offense of kidnapping
results wherein a more serious crime under the Revised which is punished by reclusion perpetua to death.18
Penal Code, which is malum in se, is absorbed by a lesser
offense under a special law which is only malum 3. Neither should the fact that the aggravated form of
prohibitum. Hence, it was urged during the deliberations illegal possession of an unlicensed firearm is a malum
that we should not adopt a novel doctrine which rests on a prohibitum punished by a special law inveigh against the
shaky foundation. doctrine of absorption we have adopted in Barros, In fact,
as hereinbefore quoted, Tac-an recognized that the killing
1. The basic premise of this argument is definitely should be taken into account to increase the penalty to
offtangent. The penalty for the aggravated illegal death because of the explicit provision of Presidential
possession of unlicensed firearm, in the terminology of Decree No. 1866.
Caling, is the single indivisible penalty of death which
would be imposable regardless of the generic modifying In People vs. Simon, ante, we traced the legal history of
circumstances11 or of whether the killing constitutes crimes punished under special laws, from the time they
murder or homicide. The penalty under Presidential Decree were divided by a seemingly impermeable membrane,
No. 1866 is, therefore, decidedly higher than that for because of their American origin and formulation, from
murder, although it is now reclusion perpetua to death in felonies under the Revised Penal Code, which are of
Republic Act No. 7659, and, being thereby covered by Spanish vintage. We explained how the legal development
Article 63 of the Code, will be reduced to reclusion of adopting the scheme of penalties in the Revised Penal
perpetua in the absence of aggravating circumstances. Of Code and applying them to those punished by special laws,
course, it does not even have to be pointed out that the markedly starting with subversion in Republic Act No.
penalty for homicide is only reclusion temporal in its entire
extent, 1700, resulted in the consequent selective applicability of
some provisions of the Code to special laws, absent an
2. Even assuming arguendo that the penalty for the express or implicit prohibition against such vicarious
aforesaid taking of human life could be higher than the application. There is decidedly no insuperable obstacle now
penalty for aggravated illegal possession which would to the application of the doctrine of absorption to offenses
absorb the former, that is not an unheard-of or
provided for or contemplated in Presidential Decree No. termed as aggravated form of illegal possession of firearms
1866. which is provided for in the second paragraph of Section 1,
Presidential Decree No. 1866. It approximates, therefore,
4. Nor should we hold a "Judicial prejudice" from the fact an obsessive desire to impose a higher penalty, even if
that the two forms of illegal possession of firearms in thereby basic principles of criminal law and the clear
Presidential Decree No. 1866 are mala prohibita. On this provisions of Presidential Decree No. 1866 are to be
score, I believe it is time to disabuse our minds of some disregarded. Should that intent to impose the present
superannuated concepts of the difference between mala in penalty for murder, be subserved by charging that crime
se and mala prohibita, I find in these cases a felicitous separately and then prosecuting the offender again for
occasion to point out this misperception thereon since using the firearm with which he committed the same
even now there are instances of incorrect assumptions murder? And, will that objective be achieved if the crime is
creeping into some of our decisions that if the crime is homicide which has not been affected by Republic Act No.
punished by the Revised Penal Code, it is necessarily a 7659 but will thereby also be subjected to the same double
malum in se and, if provided for by a special law, it is a prosecution under the reasoning of the majority?
malum prohibitum.
It has always been my position that the death penalty was
It was from hornbook lore that we absorbed the not "abolished" by the 1987 Constitution, since I had some
distinctions given by text writers, claiming that: (1) mala in participation in formulating the provision involved. It
se require criminal intent on the part of the offender; in merely provides that the same shall not "be imposed,
mala prohihita, the mere commission of the prohibited act, unless, for compelling reasons involving heinous crimes,
regardless of intent, is sufficient, and (2) mala in se refer to the Congress hereafter provides for it,"22 that is,
felonies in the Revised Penal Code, while mala prohibita authorizes its imposition. Meanwhile, all laws which
are offenses punished under special laws. provided for the death penalty remained in force and were
maintained in the statute books despite that constitutional
The first distinction is still substantially correct, but the provision since it did not by itself have the effect of
second is not accurate. In fact, even in the Revised Penal amending or repealing them. Some of those laws were
Code there are felonies which are actually and essentially later expressly repealed or amended by the President in
mala prohihita. To illustrate, in time of war, and regardless the exercise of her then legislative powers and, thereafter,
of his intent, a person who shall have correspondence with some were repealed or modified by Congress, which even
a hostile country or territory occupied by enemy troops added other heinous crimes with capital penalties.
shall be punished therefor.19 An accountable public officer However, other laws like Presidential Decree No. 1866,
who voluntarily falls to issue the required receipt for any which were not thus repealed or amended, retain their
sum of money officially collected by him, regardless of his present provisions and effects, except that the death
intent, is liable for illegal exaction.20 Unauthorized penalty provided by them would in the meantime be
possession of picklocks or similar tools, regardless of the reduced to reclusion perpetua. Parenthetically, why should
possessor's intent, is punishable as such illegal the laws concerned be deemed amended or repealed if the
possession.21 These are felonies under the Revised Penal death penalty provided for therein had already been
Code but criminal intent is not required therein. "abolished" by the Constitution?

On the other hand, I need not mention anymore that there Republic Act No. 7659 did not "reimpose" the death
are now in our statutes so many offenses punished under penalty on murder. Article 248 of the Penal Code, which
special laws but wherein criminal intent is required as an provided for the penalty of reclusion temporal in its
element, and which offenses are accordingly mala in se maximum period to death for that crime, was amended by
although they are not felonies provided for in the Code. Republic Act No. 7659, merely to increase the penalty to
reclusion perpetua to death, but it remained in full force
IV 1. From the foregoing discussion, I regret that I cannot even during the interim except for the fact that the penalty
agree with the rationalization of the majority that two of death could not then be imposed. That is why the title of
separate penalties must be imposed on the same accused Republic Act No. 7659 is "An act to Impose the Death
because he is supposed to have committed two separate Penalty in Certain Heinous Crimes, Amending for that
offenses of (1) illegal possession with murder, and (2) the purpose, the Revised Penal Code, x x x." The same is true
same murder per se. The unusual justification is that in the with respect to the aggravated form of illegal possession of
first offense, the murder is not considered as a separate firearms, except that the imposition of the death penalty
offense but only to increase the penalty for the illegal thereunder is still proscribed.
possession, and in the second offense, that same murder
shall now be considered as a separate offense in itself. To 2. Even if we were to indulge the majority in its thesis on
make this theory palatable, the example is given that if the the effects of Republic Act No. 7659 on Presidential Decree
murder is committed with an unlicensed firearm, the death No. 1866, that is, that by the non-inclusion in the former of
penalty is imposable, whereas if it is committed with a the aggravated form of illegal possession with murder the
licensed firearm, the penalty shall only be reclusion death penalty cannot be imposed for the murder, that fact
perpetua. does not warrant and cannot justify the recourse it has
adopted as a judicial dictum. The second paragraph of the
This concern is evidently due to the fact that Republic Act aforestated Section I expressly and unequivocally provides
No. 7659, which "reimposed" the death penalty for certain for such illegal possession and resultant killing as a single
heinous crimes, does not include the offense that we have integrated offense which is punished as such. The majority
not only created two offenses by dividing a single offense of murder through the use of an illegally possessed firearm
into two but, worse, it resorted to the unprecedented and in the heinous crimes subject of Republic Act No. 7659,
invalid act of treating the original offense as a single But, instead of respecting the legislative formulation, the
integrated crime and then creating another offense by majority has contrarily decided to disregard the clear
using a component crime which is also an element of the import of Presidential Decree No. 1866 and opted to
former. impose two penalties for what it considers as two offenses
through a bifurcated interpretation.
It would already have been a clear case of judicial
legislation if the illegal possession with murder punished 4. Following that treatment, is the Court now prepared to
with a single penalty had been divided into two separate adopt the same procedure with regard to similar offenses
offenses of illegal possession and murder with distinct punished under other decrees? For example, Presidential
penalties. It is consequently a compounded infringement of Decree No. 532,26 punishes highway robbery with murder
legislative powers for this Court to now, as It has done, or homicide with the mandatory penalty of death. Since
treat that single offense as specifically described by the this offense has not been included in Republic Act No, 7659
law and impose reclusion perpetua therefor (since the and the death penalty cannot be imposed, shall this Court
death penalty for that offense is still proscribed), but then also follow the same procedure of imposing the penalty of
proceed further by plucking out therefrom the crime of reclusion perpetua for the highway robbery with murder (or
murder in order to be able to impose the death sentence. homicide) under Presidential Decree No. 532, and then
For indeed, on this score, it is beyond cavil that in the further impose the death penalty for the same murder
aggravated form of illegal possession, the consequential under Article 248 of the Revised Penal Code?
murder (or homicide) is an integrated element or integral
component since without the accompanying death, the Again, Presidential Decree No. 53327 imposes the penalty
crime would merely be simple illegal possession of a of reclusion perpetua to death if a person is killed as a
firearm under the first paragraph of Section 1. result of cattle rustling. This offense has not been included
in Republic Act No. 7659, hence the penalty can only be
3. The fact that the aggravated form of illegal possession reclusion perpetua. By adopting the same rationale in the
with murder was not included in Republic Act No. 7659 is a case at bar, shall the Court then impose the penalty of
matter for Congress, and not for this Court, to remedy. A reclusion perpetua for cattle rustling pursuant to
legislative terrain with gaps of omission In the statute is Presidential Decree No. 533 and then, if the killing
not terra incognita to the courts, familiar as we are with constitutes murder attended only by an aggravating
instances thereof. The legislature may have committed circumstance, should it then impose another penalty of
such omissions in the law for reasons of its own or through death for the same murder under Article 248 of the Code?
unintended oversight but, unless judicial remedy is
constitutionally permissible, and in the cases at bar it is Still further, Presidential Decree No. 53428 provides that if
not, the courts must await the legislative remedy of illegal fishing with the use of explosives or noxious or
amendment or repeal of that law. poisonous substances results "in the loss of human life,
then the penalty shall be imprisonment from 20 years to
For illustration, we can just again refer to the impasse life, or death." This offense is not provided for in Republic
earlier discussed regarding the logically absurd penalties Act No. 7659, hence the death penalty cannot be imposed;
for kidnapping in Article 267, in relation to forcible
abduction of a woman under Article 342 and kidnapping for but the killing could conceivably constitute murder since
slavery in Article 272, all of the Revised Penal Code. A the use of explosion or poison is a qualifying circumstance.
reading of Republic Act No. 1823 and Republic Act No. The inevitable question that must again be posed, based
108424 readily reveals that it was the purpose of Congress on the theory adopted here by the majority, is whether or
by corresponding amendment of the other related not the illegal fishing with murder shall be punished with
provisions of the Code, to pull all forms of kidnapping and life imprisonment at most under Presidential Decree No.
serious illegal detention in Article 267, Yet, in the process, 534, and then, if only an aggravating circumstance is
that objective was not fully subserved by the two present therein, the accused must also be given another
amendatory laws since forcible abduction of a woman, penalty of death under Article 248 of the Code.
which necessarily involves her kidnapping and detention,
as well as kidnapping for the purpose of enslaving the We can easily multiply what are clearly perceivable as the
victim, were overlooked and not included in the provisions dangerous consequences of the solution contrived by the
of Article 267.25 majority of creating two offenses and imposing two
penalties. I have, however, chosen the foregoing
These instances are presented to project the discrepancies illustrations involving acts punished under both a
in what should be the appropriate penalties for the presidential decree and the Revised Penal Code, with
aforesaid offenses involved because of their omission by murder as a common denominator, to make my analogies
Congress in the logical taxonomy of crimes. Yet, the as close as possible to that involving Presidential Decree
Judiciary stands bound by the aforementioned state of the No. 1866 in these cases. In truth, the same problematic
law on the matter, and has not attempted to exercise the situation could be raised and created against any
power reserved for legislative amendment to suit its composite felony in the Code which is considered as a
perceptions on what the penalties should be for forcible unitary offense and punished by a single penalty, if the
abduction and slavery. Similarly, the disposition in the majority's novel theory of duality of offenses with double
cases at bar is grounded on the omission or non-inclusion penalties were to be applied thereto.
It is rather pointless to essay an unnecessary distinction possession is not in issue, except peripherally and
between the phrase "as a result or on the occasion of' inconsequentially since it is not an element or modifying
which refers to the killing committed in the course of circumstance in the second charge, hence the evidence
violating Presidential Decrees Nos. 532, 533 arid 534, and therefor is immaterial. But, in both prosecutions, the
the killing "with the use" of an illegally possessed firearm evidence on murder is essential, in the first charge
contemplated in Presidential Decree No. 1866. Incidentally, because without it the crime is only simple illegal
the equivalent phrase used in the special complex crimes possession, and, in the second charge, because murder is
in Articles 294 and 297 of the Code, in referring to the the very subject of the prosecution. Assuming that all the
deaths caused by the malefactor, is "by reason or on other requirements under Section 7, Rule 117 are present,
occasion of' the different stages of the robbery therein. But can it be doubted that double jeopardy is necessarily
the common denominator and identity among all the present and can be validly raised to bar the second
aforesaid composite crimes, for purposes of the issue prosecution for murder?34
under consideration, is that there is a principal offense,
which is separately punishable, and an unlawful killing with In fact, we can extrapolate this constitutional and
a direct nexus to or connection with that principal offense reglementary objection to the cases of the other composite
is also committed. crimes for which a single penalty is imposed, such as the
complex, compound and socalled special complex crimes.
What is then the focus of the inquiry in the present case Verily, I cannot conceive of how a person convicted of
which applies with equal force to the aforestated estafa through falsification under Article 48 can be validly
composite crimes is merely whether or not, apart from and prosecuted anew for the same offense of either estafa or
in addition to the penalty imposable on the offender if he falsification, or how the accused convicted of robbery with
violates any of the foregoing decrees or commits robbery homicide under Article 294 can be legally charged again
in any of its stages and which penalty is increased with either of the same component crimes of robbery or
precisely if accompanied by an unlawful killing, he should homicide; or how the convict who was found guilty of rape
be further and separately punished for such homicidal or with homicide under Article 335 can be duly haled before
murderous taking of human life. The implacable question is the court again to face charges of either the same rape or
whether or not two separate penalties should be imposed homicide. Why, then, do we now sanction a second
on him for killing the same victim since those decrees and prosecution for murder in the cases at bar since the very
the Code already provide a single but increased penalty for same offense was an indispensable component for the
the crimes therein if accompanied by an unlawful killing other composite offense of illegal possession of firearm
and thereby constituting a composite crime. Whether the with murder? Why would the objection of non bis in idem
death of the victim supervened as "a result or on the as a bar to a second jeopardy lie in the preceding
occasion," or "by reason or on occasion," or "with the use" examples and not apply to the cases now before us"
of the firearm or poisonous substances availed of by the
accused is immaterial even if liberally viewed in the The majority comes up with the so-called "additional
context of the mens rea as proposed by the majority. element" test to take the issue out of the rule on double
jeopardy, citing for that purpose Yap vs. Lutero35 and
5. Prescinding from the substantive aspect and shifting to People vs, Relova, etc., et al.36 These cases are not
the procedural and constitutional view, I am also bothered actually 'in point since they are primarily concerned with
by the impact of the majority opinion upon the rule on the question of double jeopardy where the same offense is
double jeopardy. I am referring, of course, to double punished by two statutes or different sections of the same
jeopardy arising from prosecutions for the same offense statute, as contrasted with double jeopardy arising from
under two or more laws as contemplated in the Rules of the same act punished by a law and likewise by an
Court,29 and not to the special situation under the ordinance, as has earlier been explained. The distinction is
Constitution30 involving a prosecution for the same act not germane here since there is no punitive ordinance
punished under a law and an ordinance, as clarified in involved in the case at bar. This proposition of the majority,
People vs. Relova, etc., et al.31 In the first kind. of double however, bears discussion.
jeopardy for purposes of this discussion, what is
determinative is the identity of the offense, hence the I do not gainsay the validity of the "additional element
"sameevidence" test applies, that is, that the facts alleged test," if properly understood and correctly applied. As I
and proven in one charge would, based on the same have written elsewhere, it Is a cardinal rule that the
evidence, suffice to support the second charge, and vice- protection against double jeopardy may be invoked only
versa.32 Accordingly, the citation by the majority of People for identical offenses or where an offense necessarily
vs. Doriguez33 is of no moment, since it refers to a single includes or is necessarily included in the other offense.
act offending against two entirely distinct and unrelated However, it has also long been held that a single act may
provisions of law one of which requires proof of an offend against two or more entirely distinct and unrelated
additional fact or element, hence different and trot provisions of law, and if one provision requires proof of an
identical offenses are involved. additional fact or element which the other does not, an
acquittal or conviction or a dismissal of the information
In the cases now before us, it is difficult to assume that the under one does not bar prosecution under the other.37
evidence for the murder in the first charge of aggravated That is because the two offenses continue to exist
illegal possession of firearm with murder would be different independently of each other, with their respective
from the evidence to be adduced in the subsequent charge penalties remaining unaffected by the commission of or
for murder alone. In the second charge, the illegal penalty for the other offense.
This is illustrated by the considerations in the present rule 2. Again, drawing from the experience in Deunida where
that Batas Pambansa Big. 22, which punishes the mere only the aggravated illegal possession charge proceeded
issuance of bouncing checks, is not a bar to another while that for homicide was withdrawn, then on the
prosecution for estafa through the use of bouncing checks submission that no private interest had to be protected
under paragraph 2(d), Article 315 of the Revised Penal therein, no private prosecutor could appear for the victim.
Code.38 The rationale therefor is that the issuance per se Indeed, it was stated in said case: "No private interest Is
of a bouncing check is ipso jure punishable under Batas therefore involved, The civil liability arising from death
Pambansa Big. 22, but to be punishable as estafa under may be the subject of a separate civil action or impliedly
the Code, the additional elements of deceit and damage instituted with the criminal action for murder or homicide."
are required. Also, while the former offense requires the The Court then ordered the deletion of the award of civil
drawer's knowledge of lack or insufficiency of funds in the liability ex delicto.
drawee bank at the time the check is issued, the aforesaid
provision on estafa does not so require. The penalty for the It is my stand that even under such circumstances, the trial
former is fixed by Section 1 of said law without regard to court may justifiedly assess and award the corresponding
the damage caused or even without such damage, damages to the heirs of the victim. This is not one of the
whereas the penalty for estafa through bouncing checks is so-called "victimless crimes" where, by the very nature of
determined by the damage to the offended party.39 Lastly, the crime, no damages can possibly be sustained by a
Section 5 of Batas Pambansa Blg. 22 provides that private party, such as espionage, violation of neutrality,
prosecution thereunder "shall be without prejudice to any flight to enemy country or crimes against popular
liability for violation of any provision of the Revised Penal representation.41 Where the victim was killed under the
Code." circumstances contemplated in Presidential Decree No.
1866, I see no reason why the case should be excepted
These features are absent in the integrated offense of from the fundamental rule that every person criminally
murder or homicide with the use of an illegally possessed liable is civilly liable.42 Thus, while the crime of rebellion is
firearm, It is true that mere illegal possession has a specific directed against the Government, yet in the rebellion cases
lower penalty in Presidential Decree No. 1866, and murder decided by this Court, corresponding awards for civil
or homicide have their own specific penalties in Articles damages were invariably granted so long as the offense
248 and 249 of the Code. However, the moment both which caused the damage was proved and the victim and
erstwhile separate offenses juridically unite, we have what the malefactor or the property involved were duly
for expediency has been called by this Court an identified by satisfactory evidence.
aggravated form of illegal possession of firearm punishable
by the two highest penalties of reclusion perpetua to 3. The advertence to People vs. De Gracia, et al.43 the
death. We cannot speak here, therefore, of the "additional decision wherein was penned by this writer, overlooks or
element test" which presupposes and requires that the two falls to mention that the same was decided under the aegis
offenses remain distinct from each other, with the discrete of the doctrines in the cases hereinbefore enumerated,
penalty for one being immune from that for the other. specifically the Tioson case, to which we then had to defer
What, instead, transpired in Presidential Decree No. 1866 as they constituted the prevailing rule, hut which are now
is a unification or merger in law of both offenses of illegal sought to he revisited in the instant case in light of Barros,
possession of firearm and murder or homicide, with each of
them becoming a component offense in a new and The statement in De Gracia that "(I)t was a legal
different composite crime punished by another and gravely malapropism for the lower court to interject the
higher penalty. aforestated provision of the Revised Penal Code in this
prosecution for a crime under a special law," referred to
V 1. The apprehension was also aired in our deliberations the action of the trial court in recommending executive
that the ruling in Barros may provide dishonest prosecutors clemency for the accused. Although there are some
with unfettered discretion to charge parties who commit contrary views on the matter, the writer held that Article 5
illegal possession of firearms in its aggravated form not of the Code does not apply to convictions under a special
with the said offense but only with homicide or murder with law where such application, as earlier stated, is expressly
one qualifying circumstance, and without any generic or impliedly prohibited. Said Article 5 expressly provides
aggravating circumstance, so that by such strategy the for the authority of the court to recommend executive
accused would thereby get only the minimum period of the clemency "when a strict enforcement of the provisions of
penalty. this Code would result in the imposition of a clearly
excessive penalty." Since, at that time the legal interplay
As long as we live in a world of men and not of angels, between Presidential Decree No. 1866 and the penalties
there will always be that legitimate fear over the possible "borrowed" for it from the Revised Penal Code was still
excesses of officialdom. There are, however, a plenitude of amorphous, this writer had to make those pronouncements
remedies provided by law for such a contingency, either in said case, but, precisely, the same are now being
criminal, civil or administrative in nature. In fact, if that act reexamined in the present cases.
of the public prosecutor amounts to a refusal to perform a
specific duty on him by law, his nonfeasance could even be I am aware that I have raised a number of what may
controlled by an action for mandamus and he can be appear as discomposing views but these should provoke a
compelled to charge the proper offense in the more thorough reexamination of the issues on these cases.
information.40 On the other hand, I apprehend that the decision handed
down herein may have opened a Pandora's box of legal
curiosities and the swarm thus released will in due time as common law offenses, in our Jurisdiction, no act is a
return to the Court to roost. I can only hope that the crime unless it is made so by statute.2 Every law enacted
Court's mavens of penal law who are responsible for the by the legislature for the restraint and punishment of
majority opinion here can fortify the same to meet the crimes and for the preservation of the public peace, health
diverse and adverse reactions that it will predictably and morals comes within the police power of the State.3
create.
'"The right of prosecution and punishment for a crime is
On the foregoing premises, I respectfully but vigorously one of the attributes that by a natural law belongs to the
register my dissent on the points indicated and for the sovereign power instinctively charged by the common will
reasons advanced therefor. of the members of society to look after, guard and defend
the interests of the community, the individual and social
HERMOSISIMA, JR., J., concurring: rights and the liberties of every citizen and the guaranty of
the exercise of his rights."4
Murder, most foul for betraying a depraved heart, is the
inordinate killing of a human being, unlawfully and with In the exercise of its right, duty and power to determine
premeditated malice, willfully, deliberately, a felony and define crimes and their corresponding penalties, the
described in and penalized under Article 248 of the Revised lawmaking body is initially and usually guided by the
Penal Code. general condition of penal liability under the legal maxim,
"actus non facit reum, nisi mens sit rea," which, if freely
On the other hand, the unlawful possession of an translated, means that "an act is not criminal unless the
unlicensed firearm, that artifice consisting essentially of a mind is criminal." On the basis of this, which is commonly
straight tube to propel a shot, shell or bullet by the known as the mens rea doctrine, our Revised Penal Code
explosion of gunpowder, is penalized as the offense of was enacted to largely penalize unlawful acts accompanied
Illegal Possession of Unlicensed Firearm by Presidential by evil intent which are denominated en masse as crimes
Decree No. 1966 of martial law vintage. mala in se. The paramount consideration here is the
existence of a malicious intention borne out by the
Against accused-appellant Daniel Quijada y Circulado were concurrence of freedom, intelligence and intent which
filed the two aforestated cases: Murder, Criminal Case No. altogether make up the "criminal mind" behind the
8178 and Illegal Possession of an Unlicensed Firearm, resultant criminal act."
Criminal Case No. 8179 "which firearm was carried by the
said accused outside of his residence and was used by him It is not always, however, that the evil to society anent a
in committing the crime of murder" in violation of criminal act depends upon the state of mind of the
paragraph 2, Section 1, of Presidential Decree (P.D.) No. offender. And no less valid, critical and indispensable is the
1866. After a joint trial, the trial court convicted accused- prerogative of the legislature, through special enactments,
appellant in both cases and sentenced him to suffer the to forbid the doing of a particular act and legislate the
penalty of Reclusion Perpetua for the crime of Murder and commission of such act to be a crime, regardless of the
imprisonment a period of Seventeen (17) Years, Four (4) intent of the doer.
Months and One (1) Day, as minimum, to Twenty (20)
Years and One (1) Day, as maximum, for the offense of "In many crimes, made by statutory enactment, the
Qualified Illegal Possession of Unlicensed Firearm penalized intention of the person who commits the crime is entirely
under the aforecited P.D. No. 1866. immaterial. This is necessarily so. If it were not, the statute
as a deterrent influence would be substantially worthless.
There is no question that, as found by the majority, the It would be impossible of execution. In many cases the act
crime of Murder and the offense of Illegal Possession of complained of is itself that which produces the pernicious
Firearm had been established by evidence beyond the effect which the statute seeks to avoid. In those cases, the
shadow of doubt. pernicious effect is produced with precisely the same force
and result whether the intention of the person performing
While the majority affirms the twin conviction of the the act is good or bad. x x x It is quite different from that
accusedappellant in both Criminal Case No. 8178 for large class of crimes, made such by the common law or by
Murder and Criminal Case No. 8179 for Illegal Possession of statute, in which the injurious effect upon the public
an Unlicensed Firearm, the minority asserts the dissenting depends upon the corrupt intention of the person
opinion that, as in People vs. Barros,1 accused-appellant perpetrating the act."5
may only be convicted of the offense of Illegal Possession
of Unlicensed Firearm in its aggravated form, inferring that In general, it may be said that there must be malus animus
the crime of Murder has been absorbed by that offense or or a criminal intent. But there is also a class of crimes
rather that the two (2) chimes may be said to have been known as crimes mala prohihita which, on the broad
complexed with each other. grounds of public policy, criminalize certain acts without
the usual requisite proof of the intent of the actor to
While the teleological debate on whether criminal commit the crime.
punishment is justified as retribution or as reformation
continually rages, hardly disputable is the static view and "In the case of The State vs. McBrayer (98 N.C, 623) this
unchanged reality that the primordial justification for court stated:
punishing any man is that he has broken the law. While in
Angloo American jurisdictions, there exist what are known
'It is a mistaken notion that positive, willful intent to violate "The first issue to be resolved is whether or not intent to
the criminal law is an essential ingredient in every criminal possess is an element of the offense punishable under
offense, and that where there is an absence of such intent Presidential Decree No. 1866 and, if so, whether appellant
there is no offense; this is especially true as to statutory x x x did intend to illegally possess firearms and
offenses. When the statute plainly forbids an act to be ammunition.
done, and it is done by some person, the law implies
conclusively the guilty intent, although the offender was The rule is that ownership is not an essential element of
honestly mistaken as to the meaning of the law he illegal possession of firearms and ammunition x x x.
violates. When the language is plain and positive,
But is the mere fact of physical or constructive possession
and the offense is not made to depend upon the positive, sufficient to convict a person for unlawful possession of
willful intent and purpose, nothing is left to interpretation.' firearms or must there be an intent to possess to constitute
a violation of the law? This query assumes significance
xxxxxx XXX Care must be exercised in distinguishing the since the offense of illegal possession of firearms is a
difference between the intent to commit the crime and the malum prohibitum punished by a special law, in which case
intent to perpetrate the act. The accused did not good faith and absence of criminal intent are not valid
consciously intend to commit a crime; but he did intend to defenses.
commit an act, and that is, by the very nature of things,
the crime itselfintent and all. The working of the law is When the crime is punished by a special law, as a rule,
such that the intent and the act are inseparable, The act is intent to commit the crime is not necessary. It is sufficient
the crime."6 that the offender has the intent to perpetrate the act
prohibited by the special law. Intent to commit the crime
Indeed, to distinguish between crimes mala in se and mala and intent to perpetrate the act must be distinguished. A
prohibita by simply pointing out that the former refer to person may not have consciously intended to commit a
felonies in the Revised Penal Code while the latter are crime; but he did intend to commit an act, and that act is,
punished under special laws, does not amount to much, for by the very nature of things, the crime itself. In the first
there are indeed felonies that are penalized regardless of (intent to commit the crime), there must be criminal intent;
the felon's criminal intentions, and conversely, there are in the second (intent to perpetrate the act), it is enough
also special offenses that require proof of criminal intent. that the prohibited act is done freely and consciously.

Whether or not In a given case the statute is to be In the present case, a distinction should be made between
construed as forbidding the doing of an act and criminal intent and intent to possess. While mere
criminalizing the same without regard to the intent of the possession, without criminal intent, is sufficient to convict
perpetrator of the act, is to be determined by the court by a person for illegal possession of a firearm, it must still be
considering the subject matter of the prohibition as well as shown that there was animus possidendi or an intent to
the language of the statute, thereby ascertaining the possess on the part of the accused. Such intent to possess
intention of the lawmaker. The index of whether or not a is, however, without regard to any other criminal or
crime is malum prohibitum is not its form, that is, whether felonious intent which the accused may have harbored in
or not it is found in the Revised Penal Code or in a special possessing the firearm. Criminal intent here refers to the
penal statute, but the legislative intent that underlies its intention of the accused to commit an offense with the use
continuing existence as part of the law of the land. of an unlicensed firearm. This is not important in convicting
a person under Presidential Decree No. 1866."9
"Considering the nature of the offense, the purpose to be
accomplished, the practical methods available for the In its enactment, P.D. No. 1866 was undoubtedly intended
enforcement of the law, and such other matters as throw as a substantial measure in response to the perennial
light upon the meaning of the language, the question in problem of law enforcement and public order and safety.
interpreting a criminal statute is whether the intention of Thus, we always pointed out that P.D. No. 1966 was passed
the legislature was to make knowledge of the facts an because of an upsurge of crimes vitally affecting public
essential element of the offense, or to put upon everyone order and safety due to the proliferation of illegally
the burden of finding out whether his contemplated act is possessed and manufactured firearms, which crimes have
prohibited, and of refraining from it if it is."7 resulted in loss of human lives, damage to property and
destruction of valuable resources of the country.10
In this light, we have not just a few times precisely
delineated the malum prohibitum nature of P.D. No. 1866, The aforecited public policy concern justified the blanket
which is a codification of the laws on unlawful possession prohibition in P.D. No. 1866 against mere possession of
of unlicensed firearms, among others. unlicensed firearms, among others, without regard to the
criminal intent of the possessor. Indeed, what is being
As has been aforesaid, in determining whether or not an punished is the illegal possession, among others, of
offense is malum prohibitum or not, the relevant inquiry unlicensed firearms.
must concern the legislative intent as to the requirement
of criminal intent or lack thereof. In this respect, the "What the decree does is to define the offense and provide
discussion of Justice Regalado in People vs. De Gracia8 is for the penalty that may be imposed, specifying the
appropriate: qualifying circumstances that would aggravate the offense.
There is no encroachment on the power of the court to
determine after due hearing whether the prosecution has Possession of Unlicensed Firearm for purposes of
proved beyond reasonable doubt that the offense of illegal increasing the penalty therefor. These circumstances do
possession of firearms has been committed and that the not create another offense or a special kind of illegal
qualifying circumstances attached to it has been possession or another form of illegal possession. When
established also beyond reasonable doubt as the either of such circumstances is attendant under the
Constitution and judicial precedents require."11 premises of a case, such circumstance only authorizes and
justifies the imposition of a higher penalty. It only has the
Insofar as material to the present case, what is penalized is effect of upgrading the penalty and not of supplying an
the sole, additional, separate element of a new or another offense.
Thus, there is no such thing as a special complex crime of
simple act of a person who shall, among others, illegal possession of unlicensed firearm used in
"unlawfully possess any firearm." The gravamen of the homicide,14 or murder for that matter. Neither could we
offense is the fact of possession of a firearm without a have conceived what we have been calling the aggravated
license or authority for such possession.12 It is only the form of illegal possession15 or qualified illegal
offense of Illegal Possession of Unlicensed Firearm that is, possession,16 to be a separate, distinct and independent
in the corporeal and material sense, offense from illegal possession without any qualifying
circumstance. Even Justice Regalado concedes in his
provided for and defined in Section I of P.D. No. 1866. The Separate Opinion in People vs. Barros17 that "the
penalty therefor, however, is another matter. nomenclature of aggravated illegal possession is used just
for expediency, in the same manner as that of 'qualified
It is undisputed that P.D. No. 1866 was validly enacted in rape' under Article 335 when the sexual assault is attended
1983 in the exercise of legislative powers by then by the circumstances therein which result in increased
President Marcos under the 1973 Constitution, which penalties."
powers inherently included the prerogative to prohibit
certain acts perceived by the lawmaker to be substantially In People vs. Barros,18 we were mainly concerned with the
prejudicial to the public interest. Thus, Section I forbids the issue as to whether or not, whenever a killing is effected
possession by any person of a firearm for which he does with the use of an unlicensed firearm, the malefactor
not have the proper license and/or authority. The sole act should be punished separately for both offenses, with the
forbidden, prohibited and thereby criminalized is the illegal unlawful taking of life to be proceeded against under the
possession of an unlicensed firearm. That is all. However, corresponding provision of the Revised Penal Code and the
while the offense penalized is singular, the penalties for illegal possession of the firearm under P.D. No. 1866.
such offense are plural and are distinguished from each There, we decided that said malefactor ought only to be
other by certain circumstances which the lawmaker punished for qualified illegal possession of firearm
considered to be valid reasons to impose penalties heavier essentially because the two crimes are not altogether
than the others. Thus, as a whole, the pertinent portion of separate or disconnected from each other both in law and
said decree provides, to wit: in fact and could thus be viewed as a situation bordering
close to or approximating the concept of complex crime
"Section 1. Unlawful Manufacture, Sales, Acquisition, proper and/or as a situation where the graver offense (of
Disposition or Possession of Firearms or Ammunition or qualified illegal possession) can be said to have absorbed
Instruments Used or Intended to Be Used in the the lesser offense (of homicide or murder) which
Manufacture of Firearms or Ammunition. - The penalty of constitutes the essential element siring the so-called
reclusion temporal in its maximum period to reclusion "capital offense of the aggravated form of illegal
perpetua shall be imposed upon any person who shall possession."
unlawfully manufacture, deal in, acquire, dispose, or
possess any firearms, part of firearm, ammunition, or There is no time more appropriate to re-examine the
machinery, tool or instrument used or intended to be used Barros ruling than now, for to persist in it would result in an
in the manufacture of any firearm or ammunition. absurd situation that cannot be justified even under the
hallowed principle of stare decisis.
If homicide or murder is committed with the use of an
unlicensed firearm, the penalty of death shall be imposed. Merely that two crimes are not altogether separate or
disconnected from each other both in law and in fact, is of
If the violation of this Section is in furtherance of, or no moment. In the first place, should they in law and in fact
incident to, or in connection with crimes of rebellion, be altogether separate or disconnected from each other to
insurrection, or subversion, the penalty of death shall be foreclose their absorption into or complexing with, each
imposed. other? In the second place, that very statement provides a
basic presumption and reality that must be fully
xxxxxx xxx. "13 understood insofar as its implications and consequences
are concerned. They are precisely two crimes, and these
The circumstances (1) that homicide or murder is two crimes are punished under two separate, distinct and
committed with the use of an unlicensed firearm and (2) independent laws. Punishment is a corollary of lawbreaking
that the illegal possession of unlicensed firearm is by a member of society whose law is broken.19 In this
committed in furtherance of, or incident to, or in case, there are two separate laws involved, two separate
connection with the crimes of rebellion, insurrection or crimes punished by two laws, and two counts of breaking
subversion, only qualify or aggravate the offense of Illegal the law constituting two crimes for which two separate
penalties are provided. Concededly, accused-appellant In other words, there is in this instant case a case of
performed only one action which was made basis for two plurality of crimes where accused-appellant performed one
Informations each charging a distinct offense. But it is also act which resulted in two different crimes penalized under
a wellestablished rule in this jurisdiction that: two separate laws which have distinct purposes and are
independent from each other.
"a single act may offend against two (or more) entirely
distinct and unrelated provisions of law, and if one Neither does the doctrine of absorption obtain in this case.
provision requires proof of an additional fact or element For absorption to take place under the circumstances
which the other does not, an acquittal or convictino or a thereof, there must be two materially distinct and separate
dismissal of the informatino under one does not bar offenses involved - murder and what has been referred to
prosecution under the other. Phrased elsewise, where two as the capital offense of the aggravated form of illegal
different laws (or articles of the same code) define two possession of unlicensed firearm. As has been explained
crimes, prior jeopardy as to one of them is no obstacle to a hereinabove, however, the offense defined in Section 1 of
prosecution of the other, although both offenses arise from P.D. No. 1866 is plainly, simply illegal possession of
the same fats, if each crime involves some important act unlicensed firearm. The circumstance of homicide or
which is not an essential element of the other."20 murder only operates to upgrade the penalty for the
offense of illegal possession fo unlicensed firearm and does
Where there are, as in this case, two crimes punished by not as it has not been intended to, sire and penalize a
two disctinct laws enacted for absolutely different second offense or the so-called capital offense of the
purposes, and both laws are clear and unambiguous, and aggravated form of illegal possession of unlicensed
no absurdity or unreasonableness is evident from the firearm. The offense of illegal possession, as such, in turn,
application of both, it is not the proper function of the court cannot validly absorb murder or homicide because the
to change or alter in any way the state of things latter is not an element of the former. Nothing more
thereunder. That it is desirable, equitable, wise, humane or indubitably evidences the intent of the legislature to
charitable to find a way to decrease the penalty or avoid maintain the integrity and effectivity of the penal provision
imposition of the penalties under the two laws, is not for murder and homicide, on the one hand, and of Section
denied, but at most we can only "legislate interstitially x x 1 of P.D. No. 1866, on the other, than the very pertinent
x confined from molar to molecular motions"21 provisio of said decree which neither created any special
complex crime nor amended nor repealed the provisions
and clear up ambiguities or fill in the gaps. Gaps in our on murder or homicide nor defined a separate offense of
conscience and our personal convictions must be found an aggravated form of illegal possession.
and provided some other legitimate channel for expression
and realization. We are not unaware of the fundamental legal principle that
every doubt in the construction of a criminal statute should
The law on complex crime proper is not applicable here. be resolved in favor of any person accused of a crime. To
One of the reasons often cited in proscribing complexing a mete out a lesser penalty is certainly favorable to an
crime under the Revised Penal Code and an offense under accused; such, however, presupposes the existence of
a special law is that the latter is not punishable by a some doubt in the application of the law pertinent to his
penalty divisible into periods. Now following our ruling in circumstances. In the instant case, there is no ambiguity,
People vs. Simon,22 ambivalence, confusion, doubt or question respecting the
applicable laws. The penalties provided for by the Revised
the suppletory effect of the Revised Penal Code upon P.D. Penal Code for the crime of Murder and by P.D. No. 1866
No. 1866 is now starkingly broadened because though it is for the offense of Illegal Possesssion of Unlicensed Firearm
a special penal law, the penalties provided therein are are not under attack. And it could not also be said that the
actually taken from the Revised Penal Code in their application of said laws and the imposition of said penalties
technical nomenclature, duration, correlation and legal bring about an undeniable situation characterized by such
effects, such that the same treatment as that respecting absurdity, unreasonableness, and socially, morally or
Revised Penal Code penalties may now be given to philisophically virulent consequences as to justify the utter
penalties under certain special laws. disregard of said laws and their substantive provisions
regarding penalties. Certainly, there must be a limit to
However, notwithstanding the import of our ruling in the what the court may do to remedy what it perceives as a
said case of People vs. Simon, it still cannot be said that difficult but avoidable situation. The consequences of the
there is no longer any obstacle in complexing murder with application of our valid, subsisting laws, after all, do not
qualified illegal possession because the very essence and always have to satisfy our own standards of what is just
nature of each of these crimes remains unchanged and and fair.
unaffected. Murder, or of that matter, homicide, remains
distinct from the crime of Illegal Possession of Unlicensed Finally, with the enactment of Republic Act (R.A) No.
Firearm where the firearm is used in perpetrating the 765924
killing. The defendant in such cases committed two
different acts with two separate criminal intents, to wit, the reimposing the death penalty for certain heinous crimes,
desire to take unlawfully the life of a person and the sheer an anomalous situation may emerge in our midst if we
violation of the law which prohibits the possession of a apply Barros. Said Act enumerated particular crimes under
firearm without required permit.23 the Revised Penal Code and specific offenses under special
laws that shall henceforth contain provisions imposing the
death penalty under certain circumstances. One of the 3. G.R. No. 89823, June 19, 1991, 198 SCRA 368.
crimes enumerated thereunder is Murder, which may now
be punished by death.25 4. G.R. No. 94784, May 8, 1992, 208 SCRA 821.

The death penalty may now also be meted out in, among 5. G.R. No. 101584, April 7, 1993, 221 SCRA 333.
others, the case of drug-related crimes as provided for in
the Anti-Carnapping Act of 1972.27 6. G.R. Nos. L-24444-45, July 29, 1968, 24 SCRA 163.

Of utmost significance is the fact that not included in the 7. G.R. Nos. 105199-200, March 28, 1994, 231 SCRA 520.
enumeration of special offenses where the death penalty
has been revived, is P.D. No. 1866. R.A. 7659 being a penal 8. G.R. No. 100921, June 2, 1995, 244 SCRA 731.
statute which must, as a rule, be strictly construed against
the State, the inescapable and inevitable conclusion is that 9. People vs. Muñoz, et al., G.R. Nos. L-38969-70, February
Congress, in enacting R.A. No. 7659, did not intend to 9, 1989, 170 SCRA 107.
revive the death penalty provision found in the second and
third paragraphs of Section 1 of P.D. No. 1866. 10. G.R. No. 93028, July 29, 1994, 234 SCRA 555.

The foregoing makes for a tremendous import. On the one 11. Art. 63, Revised Penal Code.
hand, were we to insist the murder may be complexed with
or absorved by illegal possession of unlicensed firearm 12. 99 Phil. 515 (1956).
where said firearm is used in the commission of murder or
13. People vs. Prieto, 80 Phil. 138 (1948); People vs.
homicide, a person convicted for said offense may only be
Labra, 81 Phil. 377 (1949); People vs. Adlawan, 83 Phil. 194
punished with a penalty no higher than reclusion perpetua,
(1949).
since R.A. No. 7659 did no revive the death penalty
provision in Section 1 of P.D. No. 1866. On the other hand,
14. People vs. Hernandez, supra.
a person who has used a licensed firearm in committing
murder may be punished with death if there were sufficient
15. Art. 342, Revised Penal Code.
aggravating circumstances attendant in the killing, since
R.A. No. 7659 restored the death penalty for the crime of
16. Art. 267, id,
murder. No much deeper analysis is needed to realize that
an anomalous, absurd situation confronts us where the 17. Art. 272, id.
use of an unlicensed firearm in killing is rewarded by a
lesser penalty. Herein lies real injustice. And we cannot 18. An. 267, id.
scale down this resounding message which indifference on
our part would impart: if "would be" criminals were to kill, 19. Art. 120, pars. 1 and 2, id.
they ought to kill with unlicensed firearms so that they will
fall within the purview of P.D. No. 1866 with respect to 20. Art, 213, par. 2(b), id.
which the death penalty has not been restored and not
within the provisions of the Revised Penal Code for murder, 21. Art. 304, id. This is to be distinguished from possession
for then depending upon the nature and number of the of instruments or implements for falsification which is
aggravating circumstances that may attend such crimes, punishable under Art, 176 only if the offender possesses
they face the possibility of being sentenced to death, an the same "with the intention of using them."
eventuality that could never be under P.D. No. 1866.
22. Sec. 19 (1), Art. III, Constitution.
Certainly, we cannot close our eyes to this absurd
situation, and it will be irresponsible of us to allow the 23. Effective September 25, 1946.
absurdity to persist. We should not stubbornly cling to the
illusion that murder and illegal possession of unlicensed 24. Effective June 15, 1954.
firearm used in murder may be complexed with each other
or absorbed into each other. Anyway, they are not so 25. For that matter, even the epigraph of Article 270 still
disconnected from each other that doing so would reads "kidnapping and failure to return a minor" although
translate into a lower penalty. For us to cling to such an the original first paragraph of Article 270 on kidnapping of
illusion would be tantamount a complete disregard of legal a minor was transposed to Article 267, and only the second
concepts and principles in the realm of crime and paragraph of Article 270 on failure to return a minor was
punishment that has remain good, sound, valid law. retained and continues to be punished therein.

WHEREFORE, the conviction of the accused by the court a 26. Anti-Piracy and Anti-Highway Robbery Law of 1974,
quo of the two (2) crimes aforesaid, that is, for Murder and effective August 8, 1974. Its provisions on piracy, however,
Illegal Possession of Unlicensed Firearm, should be, as it is, have been incorporated by Sec. 3, R.A. No. 7659 in Arts.
affirmed. 122 and 12.3 of the Code, with amendments.

1. G.R. Nos. 76338-39, February 26, 1990, 182 SCRA 601. 27. Anti-Cattle Rustling Law of 1974, effective August 8,
1974.
2. G.R. Nos. 101107-08, June 27, 1995, 245 SCRA 312.
28. Defining illegal fishing with stiffer penalties, effective 10. People vs. De Gracia, supra, 725; Separate Opinion of
August 8, 1974. Justice Regalado in People vs. Barros, 245 SCRA 312, 325;
People vs. Tiozon, 198 SCRA 368, 379; Baylosis vs. Chavez,
29. Sec. 7, Rule 117, in relation to Sec. 5, Rule 120. 202 SCRA 405, 412.

30. Sec. 21, Art. III. 11. Misolas vs. Panga, 181 SCRA 648, 659-660.

31. G.R. No. L-45129, March 6, 1987, 148 SCRA 292. 12. People vs. Caling, 208 SCRA 821, 826; People vs.
Somooc, 244 SCRA 731, 738.
32. People vs. Diaz, 94 Phil. 714 (1954).
13. P.D. No. 1866.
33. Supra, Fn. 6.
14. People vs. Caling, supra; People vs. Somooc, supra.
34. Under the same assumption, double jeopardy can also
be raised even if there has been no prior conviction for one 15. People vs. Caling, supra.
of the offenses but both charges are pending and the
accused has been arraigned in the first charge, as pointed 16. People vs. De Gracia, 233 SCRA 716, 732.
out by this writer in his opinion in People vs. Pineda, etc.,
et al., (L-44205, February 16, 1993, 219 SCRA 1). 17. People vs. Barros, 245 SCRA 312, 324.

35. 105 Phil, 1307 (1959). 18. 245 SCRA 312.

36. Fn. 31, ante. 19. Mabbott, J.D., "Punishment," in Morality in Criminal
Justice by Daryl Close and Nicholas Meier, 1995 Edition, p.
37. U.S. VS. Capuffo, et al., 7 Phil. 24 (1906); People vs. 434.
Bacolod, 89 Phil. 621 (1951).
20. People vs. Doriguez, 24 SCRA 163, 171-172.
38. Lozano vs, Martinez, etc., ei al., G.R. No. 63419,
December 19, 1996, 146 SCRA 323, and companion cases, 21. Southern Pacific Co. vs. Jensen, 244 U.S. 205, 221.
which upheld the constitutionality of the law as a valid
exercise of police power. 22. 234 SCRA 555.

3. 9 The commission or prosecution for either offense does 23. People vs. Alger, 92 Phil. 227; People vs. Garcia, 92
not in any way affect the specific penalties imposed for Phil. 195; People vs. Maalihan, 53 Phil. 295; United States
each of them. It was RD. No. 818 which was issued to vs. Labai, 17 Phil. 240.
increase the penalty for estafa through bouncing checks.
24. "An Act to Impose the Death Penalty on Certain
40. Bernabe vs. Bolinas, Jr., etc., et al., G.R. No. L-22000, Heinous Crimes, Amending for that Purpose the Revised
November 29, 1966, 18 SCRA 812. Penal Code, as Amended, other Special Penal Laws, and for
Other Purposes."
41. People vs. Orals, et al., 65 Phil. 744 (1938).
25. Section 6, Republic Act No. 7659.
42. Art. 100, Revised Penal Code.
26. Republic Act No. 6425, as amended.
43. G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.
27. Republic Act No. 6539.
1. 245 SCRA 312.

2. Aquino, Ramon, The Revised Penal Code, 1987 Edition,


p. 7. [GRN L-74324 November 17, 1988.]

3. People vs. Pomar, 46 Phil. 440, 455. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. FERNANDO PUGAY y BALCITA, & BENJAMIN
4. United States vs. Pablo, 35 PhiL 94, 100. SAMSON y MAGDALENA, accused-appellants.

5. United States vs. Go Chico, 14 Phil. 128, 131. APPEAL from the judgment of the Court of First Instance of
Cavite.
6. Ibid., pp. 136, 138.
The facts are stated in the opinion of the Court.
7. Ibid., P. 135.
The Solicitor General for plaintiff-appellee.
8. 233 SCRA 716.
Citizens Legal Assistance Office for accused-appellants.
9. People vs. De Gracia, supra, at pp. 725-726.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO 1. THE COURT A QUO ERRED IN UTILIZING THE
PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA STATEMENTS OF ACCUSED-APPELLANTS IN ITS
were charged with the crime of MURDER in Criminal Case APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
No. L-175-82 ofthe Court of First Instance (now Regional THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A
Trial Court) of Cavite, under an information which reads as COUNSEL DURING THE CUSTODIAL INVESTIGATION.
follows:
2. THE COURT A QUO ERRED IN NOT FINDING THAT THE
"That on or about May 19,1982 at the town plaza of the SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE
Munici. pality of Rosario, Province of Cavite, Philippines, IS FATAL TO ITS CASE.
and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and 3. THE COURT A QUO ERRED IN LENDING CREDENCE TO
mutually helping and assisting one another, with treachery THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO
and evident premeditation, taking advantage of their WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE
superior strength, and with the decided purpose to kill, POLICE (Accused-appellants 'Brief, p. 48, Rollo).
poured gasoline, a combustible liquid to the body of Bayani
Miranda and with the use of fire did then and there, The antecedent facts are as follows:
wilfully, unlawfully and feloniously, burn the whole body of
said Bayani Miranda which caused his subsequent death, The deceased Miranda, a 25-year old retardate, and the
to the damage and prejudice of the heirs of the accused Pugay were friends. Miranda used to run errands
aforenamed Bayani Miranda. for Pugay and at times they slept together, On the evening
of May 19, 1982, a town fiesta fair was held in the public
"That the crime was committed with the qualifying plaza of Rosario, Cavite. There were different kinds of ride
circumstance of treachery and the aggravating and one was a ferris wheel.
circumstances of evident premeditation and superior
strength, and the means employed was to weaken the Sometime after midnight of the same date, Eduardo
defense; that the wrong done in the commission of the Gabion was sitting in the ferris wheel and reading a comic
crime was deliberately augmented by causing another book with his friend Henry. Later, the accused Pugay and
wrong, that is the burning of the body of Bayani Miranda. Samson with several companions arrived. These persons
appeared to be drunk as they were all happy and noisy. As
"CONTRARY TO LAW" (p. 1, Records). the group saw the deceased walking nearby, they started
making fun of him. They made the deceased dance by
Upon being arraigned, both accused pleaded not guilty to tickling him with a piece of wood.
the offense charged. After trial, the trial court rendered a
decision finding both accused guilty on the crime of murder Not content with what they were doing with the deceased,
but crediting in favor of the accused Pugay the mitigating the accused Pugay suddenly took a can of gasoline from
circumstance of lack of intention to commit so grave a under the engine of the ferris wheel and poured its
wrong, the dispositive portion of which reads as follows: contents on the body of the former. Gabion told Pugay not
to do so while the latter was already in the process of
"WHEREFORE, the accused Fernando Pugay y Balcita and pouring the gasoline. Then, the accused Samson set
Benjamin Samson y Magdalena are pronounced guilty Miranda on fire making a human torch out of him.
beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani The ferris wheel operator later arrived and doused with
Miranda, and appreciating the aforestated mitigating water the burning body of the deceased. Some people
circumstance in favor of Pugay, he is sentenced to a prison around also poured sand on the burning body and others
term ranging from twelve (12) years of prision mayor, as wrapped the same with rags to extinguish the flame.
minimum, to twenty (20) years of reclusion temporal, as
maximum, and Samson to suffer the penalty of reclusion The body of the deceased was still aflame when police
perpetua together with the accessories of the law for both officer Rolando Silangcruz and other police officers of the
of them. The accused are solidarily held liable to indemnify Rosario Police Force arrived at the scene of the incident.
the heirs of the victim in the amount of P13,940.00 plus Upon inquiring as to who were responsible for the
moral damages of P10,000.00 and exemplary damages of dastardly act, the persons around spontaneously pointed
P6,000,00. to Pugay and Samson as the authors thereof.

"Let the preventive imprisonment of Pugay be deducted The deceased was later rushed to the Grace Hospital for
from the principal penalty. treatment. In the meantime, the police officers brought
Gabion, the two accused and five other persons to the
"Cost against both accused. Rosario municipal building for interrogation. Police officer
Reynaldo Canlas took the written statements of Gabion
"SO ORDERED" (P. 248, Records). and the two accused, after which Gabion was released. The
two accused remained in custody.
Not satisfied with the decision, both accused interposed
the present appeal and assigned the following errors After a careful review of the records, We find the grounds
committed by the court a quo: relied upon by the accused-appellants for the reversal of
the decision of the court a quo to be without merit.
It bears emphasis that barely a few hours after the Gabion testified that it was his uncle and not the mother of
incident, accused-appellants gave their written statements the deceased who asked him to testify and state the truth
to the police. The accused Pugay admitted in his about the incident. The mother of the deceased likewise
statement, Exhibit F, that he poured a can of gasoline on testified that she never talked to Gabion and that she saw
the deceased believing that the contents thereof was the latter for the first time when the instant case was tried.
water and then the accused Samson set the deceased on Besides, the accused Pugay admitted that Gabion was his
fire. The accused Samson, on the other hand, alleged in his friend and both Pugay and the other accused Samson
statement that he saw Pugay pour gasoline on Miranda but testified that they had no previous misunderstanding with
did not see the person who set him on fire. Worthy of note Gabion. Clearly, Gabion had no reason to testify falsely
is the fact that both statements did not impute any against them.
participation of eyewitness Gabion in the commission of
the offense. In support of their claim that the testimony of Gabion to
the effect that he saw Pugay pour gasoline on the
While testifying on their defense, the accused-appellants deceased and then Samson set him on fire is incredible,
repudiated their written statements alleging that they were the accused-appellants quote Gabion's testimony on cross-
extracted by force. They claimed that the police examination that, after telling Pugay not to pour gasoline
maltreated them into admitting authorship of the crime. on the deceased, he (Gabion) resumed reading comics;
They also engaged in a concerted effort to lay the blame and that it was only when the victim's body was on fire
on Gabion for the commission of the offense. that he noticed a commotion.

Thus, while it is true that the written statements of the However, explaining this testimony on re-direct
accused-appellants were mentioned and discussed in the examination, Gabion stated:
decision of the court a quo, the contents thereof were not
utilized as the sole basis for the findings of facts in the "Q.Mr. Gabion, you told the Court on cross-examination
decision rendered. The said court categorically stated that that you were reading comics when you saw Pugay poured
"even without Exhibits 7 and 'G', there is still Gabion's gasoline unto Bayani Miranda and lighted by Samson. How
straightforward, positive and convincing testimony which could you possibly see that incident while you were
remains unaffected by the uncorroborated, self-serving reading comics?
and unrealiable testimonies of Pugay and Samson" (p. 247,
Records). "A.I put down the comics which I am reading and I saw
what they were doing.
Accused-appellants next assert that the prosecution
suppressed the testimonies of other eyewitnesses to the "Q.According to you also before Bayani was poured with
incident. They claim that despite the fact that there were gasoline and lighted and burned later you had a talk with
other persons investigated by the police, only Gabion was Pugay, is that correct?
presented as an eyewitness during the trial of the case.
They argue that the deliberate non-presentation of these "A.When he was pouring gasoline on Bayani Miranda I was
persons raises the presumption that their testimonies trying to prevent him from doing so.
would be adverse to the prosecution.
"Q.We want to clarify. According to you a while ago you
There is no dispute that there were other persons who had a talk with Pugay and as a matter of fact, you told him
witnessed the commission of the crime. In fact there not to pour gasoline. That is what I want to know from you,
appears on record (pp. 16-17, Records) the written if that is true?
statements of one Abelardo Reyes and one Monico
Alimorong alleging the same facts and imputing the "A.Yes, sir.
respective acts of pouring of gasoline and setting the
deceased on fire to the accused-appellants as testified to "Q.Aside from Bayani being tickled with a stick on his ass,
by Gabion in open court. They were listed as prosecution do you mean to say you come to know that Pugay will pour
witnesses in the information filed. Considering that their gasoline unto him?
testimonies would be merely corroborative, their non-
presentation does not give rise to the presumption that "A.I do not know that would be that incident.
evidence wilfully suppressed would be adverse if produced.
"Q.Why did you as(k) Pugay in the first place not to pour
This presumption does not apply to the suppression of
gasoline before he did that actually?
merely corroborative evidence (U.S. vs. Dinola, 37 Phil.
797). Besides, the matter as to whom to utilize as witness
"A.Because I pity Bayani, sir.
is for the prosecution to decide.
"Q.When you saw Pugay tickling Bayani with a stick on his
Accused-appellants also attack the credibility of the
ass you tried according to you to ask him not to and then
eyewitness Gabion alleging that not only was the latter
later you said you asked not to pour gasoline. Did Pugay
requested by the mother of the deceased to testify for the
tell you he was going to pour gasoline on Bayani?
prosecution in exchange for his absolution from liability but
also because his testimony that he was reading a comic
"A.I was not told, sir.
book during an unusual event is contrary to human
behavior and experience.
"Q.Did you come to know how did you come to know he "A man must use common sense, and exercise due
was going to pour gasoline that is why you prevent him? reflection in all his acts; it is his duty to be cautious,
careful, and prudent, if not from instinct, then through fear
"A.Because he was holding on a container of gasoline. I of incurring punishment. He is responsible for such results
thought it was water but it was gasoline. as anyone might foresee and for acts which no one would
have performed except through culpable abandon.
"Q.It is clear that while Pugay was tickling Bayani with a Otherwise his own pet-son, rights and property, all those of
stick on his ass, he later got hold of a can of gasoline, is his fellow-beings, would ever be exposed to all manner of
that correct? danger and injury."

"A.Yes, sir. The proper penalty that the accused Pugay must suffer is
an indeterminate one ranging from four (4) months of
"Q.And when he pick up the can of gasoline, was that the arresto mayor, as minimum, to four (4) years and two (2)
time you told him not to pour gasoline when he merely months of prision correccional, as maximum. With respect
pick up the can of gasoline. to the accused Samson, the Solicitor General in his brief
contends that "his conviction of murder is proper
"A.I saw him pouring the gasoline on the body of Joe. considering that his act in setting the deceased on fire
knowing that gasoline had just been poured on him is
"Q.So, it is clear when you told Pugay not to pour gasoline characterized by treachery as the victim was left
he was already in the process of pouring gasoline on the completely helpless to defend and protect himself against
body of Bayani? such an outrage" (p. 57, Rollo). We do not agree.

"A.Yes, sir" (Tsn, July 30,1983, pp. 32-33). There is entire absence of proof in the record that the
accused Samson had some reason to kill the deceased
It is thus clear that prior to the incident in question, Gabion before the incident. On the contrary, there is adequate
was reading a comic book; that Gabion stopped reading evidence showing that his act was merely a part of their
when the group of Pugay started to make fun of the fun-making that evening. For the circumstance of
deceased; that Gabion saw Pugay get the can of gasoline treachery to exist, the attack must be deliberate and the
from under the engine of the ferris wheel; that it was while culprit employed means, methods, or forms in the
Pugay was in the process of pouring the gasoline on the execution thereof which tend directly and specially to
body of the deceased when Gabion warned him not to do insure its execution, without risk to himself arising from
so; and that Gabion later saw Samson set the deceased on any defense which the offended party might make.
fire.
There can be no doubt that the accused Samson knew very
However, there is nothing in the records showing that well that the liquid poured on the body of the deceased
there was previous conspiracy or unity of criminal purpose was gasoline and a flammable substance for he would not
and intention between the two accused-appellants have committed the act of setting the latter on fire if it
immediately before the commission of the crime. There were otherwise. Giving him the benefit of doubt, it can be
was no animosity between the deceased and the accused conceded that as part of their fun-making he merely
Pugay or Samson. Their meeting at the scene of the intended to set the deceased's clothes on fire. His act,
incident was accidental. It is also clear that the accused however, does not relieve him of criminal responsibility.
Pugay and his group merely wanted to make fun of the Burning the clothes of the victim would cause at the very
deceased. Hence, tine respective criminal responsibility of least some kind of physical injuries on his person, a felony
Pugay and Samson arising from different acts directed defined in the Revised Penal Code. If his act resulted into a
against the deceased is individual and not collective, and graver offense, as what took place in the instant case, he
each of them is liable only for the act committed by him must be held responsible therefor. Article 4 of the
(U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. aforesaid code provides, inter alia, that criminal liability
al. 37 Phil. 1371). shall be incurred by any person committing a felony
(delito) although the wrongful act done be different from
The next question to be determined is the criminal
that which he intended.
responsibility of the accused Pugay. Having taken the can
from under the engine of the ferris wheel and holding it As no sufficient evidence appears in the record
before pouring its contents on the body of the deceased, establishing any qualifying circumstances, the accused
this accused knew that the can contained gasoline. The Samson is only guilty of the crime of homicide defined and
stinging smell of this flammable liquid could not have penalized in Article 249 of the Revised Penal Code, as
escaped his notice even before pouring the same. Clearly, amended. We are disposed to credit in his favor the
he failed to exercise all the diligence necessary to avoid ordinary mitigating circumstance of no intention to commit
every undesirable consequence arising from any act that so grave a wrong as that committed as there is evidence of
may be committed by his companions who at the time a fact from which such conclusion can be drawn. The
were making fun of the deceased. We agree with the eyewitness Gabion testified that the accused Pugay and
Solicitor General that the accused is only guilty of homicide Samson were stunned when they noticed the deceased
through reckless imprudence defined in Article 365 of the burning (Tsn, June 1, 1983, pp. 16-17).
Revised Penal Code, at; amended. Iti U.S. vs. Maloza, et. al.
14 Phil. 468, 470, this Court ruled as follows:
The proper penalty that the accused Samson must suffer is chest, thereby causing his immediate death; to the
an indeterminate one ranging from eight (8) years of damage and prejudice of the heirs of the victim in the
prision mayor, as minimum, to fourteen (14) years of amount to be proved during the trial.
reclusion temporal, as maximum.
Acts committed contrary to the provisions of Art. 248 in
The lower court held the accused solidarily liable for relation to Art. 14 all of the Revised Penal Code as
P13,940.00, the amount spent by Miranda's parents for his amended.2
hospitalization, wake and interment. The indemnity for
death is P30,000.00. Hence, the indemnity to the heirs of The Case for the Prosecution
the deceased Miranda is increased to P43,940.00.
Before February 8, 1992, Berno Georg Otte,3 a German
Both accused shall be jointly and severally liable for the national and a tourist, checked in at the Alona Ville Beach
aforesaid amount plus the P10,000.00 as moral damages Resort located in Panglao, Bohol. The resort manager,
and P5,000.00 as exemplary damages is found by the Herma Clarabal Bonga,4 assigned Otte to Room No. 95 and
court a quo. gave the latter his room key.

Accordingly, the judgment is affirmed with the On February 8, 1992, Otte took his dinner at the resort’s
modifications aboveindicated. Costs against the accused- restaurant. Bonga talked to him regarding the disco which
appellants. was about to unfold that night in lower Tawala near the
Catibo Chapel.6
SO ORDERED.
At about 10:00 p.m., Bonga went to the disco party where
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur. she saw Otte seated at one of the tables.7 She noticed that
he had some companions whom she failed to recognize.8
Judgment affirmed with modification.
Isidro A. Mihangos, a 19-year-old student, and Benigno
“Ninoy” Guigue were also at the disco. At around 2:00
a.m. of February 9, 1992, Mihangos and Guigue decided to
SECOND DIVISION call it a night and walked home, with their respective
bicycles at their sides.9 At the crossing to the Alona Beach,
[G.R. No. 123070. April 14, 2004] they saw a man lying on the road but did not recognize
him. They walked past the prostrate man. When they
PEOPLE OF THE PHILIPPINES, appellee, were about twenty-five meters10 away from the body by
vs. CASIANO BUNTAG alias “CIANO” and the road, they met Casiano Buntag and Diego Bongo, their
DIEGO BONGO, appellants. barriomates.11 Suddenly, Buntag and Bongo jointly and
simultaneously lunged at them. Afraid for their lives,
DECISION Mihangos and Guigue fled and sought refuge in the house
of Guigue’s uncle, Aquilino Bongo.12 In the process, they
CALLEJO, SR., J.: left their bicycles behind. Aquilino Bongo then
accompanied Mihangos and Guigue to where they left their
This is an appeal from the Decision1 of the Regional Trial bicycles. Mihangos and Guigue retrieved their bicycles, but
Court of Tagbilaran City, Branch 3, in Criminal Case No. Buntag and Bongo were no longer there.
7729, convicting the appellants Casiano Buntag alias
“Ciano” and Diego Bongo of murder, sentencing each of At around 5:30 a.m. of February 9, 1992, the police station
them to reclusion perpetua, and directing them to jointly of Panglao, Bohol, received a report by radio call about a
indemnify the heirs of the victim Berno Georg Otte the sum man, believed to be dead, lying at the side of the crossroad
of P50,000 as moral damages. near the Alona Beach.13 PO1 Yolando E. Hormachuelos,
together with PO1 Mauro Sumaylo and PO1 Dominie
The Indictment Ragusta,14 proceeded to the crime scene. They were
accompanied by the Municipal Health Officer, Dr. Julita L.
The appellants were charged with murder in an Cogo, who confirmed that the man died due to a stab
Information, the accusatory portion of which reads: wound.15 The policemen found a hunting knife about one
meter away from the body.16 Constancio Geoivencal took
That on or about the 9th day of February, 1992, in the pictures of the cadaver. Hormachuelos took custody of the
municipality of Panglao, province of Bohol, Philippines, and knife.17
within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill and without any In the course of their investigation, the policemen learned
justifiable cause, conspiring, confederating and mutually that Mihangos and Guigue had seen the dead body by the
helping each other, with treachery by the suddenness and road. Hormachuelos fetched Mihangos and Guigue from
unexpectedness of the acts, the victim who was unarmed their houses and brought them to the road where the body
being then unaware thereof, did then and there willfully, of Otte was found. Mihangos and Guigue narrated how
unlawfully and feloniously attack, assault and stab with the they found the body at around 2:00 a.m. that day, as well
use of a bladed instrument one Berno Georg Otte (a as their encounter with Bongo and Buntag.
German national), hitting and injuring the latter on his
At about 1:00 p.m. that day, Hormachuelos took appellant had an altercation and that he tried to pacify them but in
Bongo to the police station and investigated him without the process, Buntag pulled out his (Bongo’s) hunting knife
the assistance of counsel. Bongo admitted that he took from his waist and stabbed Otte with it.23
Otte’s key to Room No. 9 and hid it near their house. He
then drew a sketch showing the place where he hid the After the requisite preliminary investigation, the MCTC
key, at the back of their house. Bongo also admitted that issued a resolution finding probable cause against the
he was with appellant Casiano Buntag. The policemen appellants for murder and issued warrants for their arrest.
went to Bongo’s house and recovered the key to Otte’s The court found Buntag’s sworn statement and Bongo’s
room as indicated by Bongo in his sketch. counter-affidavit self-serving.

At 2:00 p.m., Guigue arrived at the police station and gave On June 4, 1992, the day of the appellant’s arraignment in
his statement to Hormachuelos.18 At 3:00 p.m., Mihangos the Regional Trial Court, appellant Buntag, through
gave his statement to SPO1 Proculo Bonao.19 counsel, Atty. Nerio G. Zamora, filed a “Motion to
Hormachuelos then took custody of Casiano Buntag and Discharge (him) to be a Witness for the Prosecution,”
brought him to the police station where he was asked alleging inter alia:
about his involvement in the killing of Otte without the
assistance of counsel. However, Buntag opted to keep 1) That there is absolute necessity for the
silent. When apprised that Diego Bongo had implicated testimony of said accused whose discharge is requested;
him, Buntag, this time with the assistance of his counsel,
Atty. Nerio G. Zamora, gave a statement on February 13, 2) That there is no other direct evidence
1992 to a police investigator. He stated that at 1:00 a.m. available for the proper prosecution of the offense
on February 9, 1992, he was walking back home from the committed, except the testimony of said accused, as can
disco place where he caught up with Diego Bongo and Otte be shown by the affidavit of said accused in relation to the
at the crossing of Alona Beach. He saw Bongo poke a knife affidavits or sworn statements of Ponciano Horcerada,
at Otte. Bongo then ordered him to box Otte but he Isidro Mihangos, Benigno Guigue, Alfredo Guioguio, and
refused, and moved back about three meters. Bongo PO1 Yolando [E.] Hormachuelos;
himself then boxed Otte three times on the face. When
Otte fell to the ground, Bongo stabbed him on the chest. 3) That the testimony of herein accused can
Buntag also stated that he then ran back home, but Bongo be substantially corroborated in its material points;
followed him and cautioned him not to reveal the incident
to anybody or else he would be implicated.20 Buntag 4) That the said accused does not appear to
subscribed and swore to the truth of his statement on be the most guilty; and
February 21, 1992 before Judge Antonio Sarce of the
Municipal Circuit Trial Court. 5) That the said accused has not at any time
been convicted of any offense involving moral turpitude;
In the meantime, Municipal Health Officer Dr. Julita Lood-
Cogo performed an autopsy on the cadaver of Otte and 6) That herein accused-movant hereby
submitted her Post-Mortem Report which contained the expresses his consent to be a witness for the
following findings: government.24

Stab wound, anterior chest, right, at the level of the 4th However, the prosecution opposed the motion on the
rib, approx. 2 cms. x 1 cm. in size, with a depth of approx. ground that both accused were equally guilty. On June 8,
12 cms., directed upwards and medially, with a complete 1992, the court issued an Order denying the motion, and
fracture of the 4th rib, right, involving a portion of the right the appellants, assisted by their respective counsels,
lung and base of the heart. entered pleas of not guilty.25

Cause of death: During the trial, the prosecution presented Judge Antonio
G. Sarce who testified that he conducted the preliminary
CARDIORESPIRATORY ARREST DUE TO HEMORRHAGE, examination of the case and identified both Buntag’s sworn
SECONDARY TO STAB WOUND, ANTERIOR CHEST, statement and Bongo’s counter-affidavit as subscribed and
RIGHT.21 sworn to before him (Judge Sarce) in his chambers.

On March 7, 1992, a criminal complaint for murder was After presenting all its witnesses, the prosecution offered
filed against appellants Bongo and Buntag with the in evidence the hunting knife,26 the key to room no. 9 of
Municipal Circuit Trial Court. Attached to the records was the beach resort,27 the sworn statement of Buntag,28 and
Buntag’s sworn statement dated February 21, 1992. Only Bongo’s counter-affidavit29 to prove that both appellants
appellant Bongo submitted his counter-affidavit on conspired to kill the victim and that they in fact killed the
February 27, 1992, subscribed and sworn to before Judge victim, and as part of the testimony of Judge Sarce. Both
Antonio Sarce,22 where he confirmed (a) Buntag’s account appellants objected to the admission of the said sworn
in his sworn statement before Judge Sarce that they were statements and counter-affidavit solely on the ground that
with Otte at 1:00 a.m. on February 9, 1992 at the crossing the statements executed by one accused was hearsay as
towards Alona Beach Resort, and (b) that he was armed to the other accused.30 By way of rejoinder, the
with a hunting knife. He further stated therein that while prosecution alleged as follows:
at the crossing, Buntag and Otte, who were both drunk,
1. That exhibits A, B, C, D, E and all its not the appellants are liable for moral damages to the heirs
submarkings are all relevant, pertinent and material of the victim. Appellant Bongo’s contention that he was
evidence against the accused in the above-entitled case, deprived of his right to due process on his claim that the
therefore, admissible in evidence; transcripts of the respective testimonies of Dr. Julita Cogo,
SPO1 Bonao and resort manager Bonga were not
2. That exhibits F and all its submarkings are transmitted to this Court is belied by the records. In a
not hearsay and do not violate the res inter alios acta rule Resolution dated September 11, 2000, the Court declared
because they are principally offered against accused that, based on the records, the transcripts of stenographic
Casiano Buntag, the affiant. The sworn statement of notes in this case were already complete.35
Casiano Buntag is offered mainly as admission of said
accused Casiano Buntag; The appellants contend that the prosecution failed to
adduce direct or circumstantial evidence to prove that they
3. That exhibits G and all its submarkings are conspired to kill the victim, and that they, in fact, killed
not hearsay and do not violate the res inter alios acta rule him. They argue that although the prosecution adduced
because they are principally offered against accused Diego circumstantial evidence consisting of the extrajudicial
Bongo, the affiant. The counter-affidavit of Diego Bongo is sworn statement of appellant Buntag and the counter-
offered mainly as admission of said accused Diego Bongo. affidavit of appellant Bongo, such evidence is utterly
insufficient to prove their guilt beyond reasonable doubt.
WHEREFORE, it is most respectfully prayed of this
Honorable Court to admit in evidence all the prosecution’s Furthermore, according to the appellants, the admissions
exhibits formally offered, for the purpose for which they made by appellant Buntag in his sworn statement are
are being offered.31 binding on him only. Being prejudicial to appellant Bongo,
such admissions are not inadmissible against the latter
The court admitted the documentary and object evidence unless repeated in open court by appellant Buntag, thus,
of the prosecution. The appellants opted not to adduce affording appellant Bongo the right to cross-examination.
any evidence on their behalf. Instead, they filed, without Likewise, the admissions of appellant Bongo in his sworn
leave of court, a “Motion to Acquit.” On June 7, 1993, the statement are inadmissible against appellant Buntag,
court issued an Order denying the motion. unless the former repeated his admissions during the trial,
affording the latter an opportunity to cross-examine the
On August 14, 1995, the trial court rendered judgment said appellant. The appellants further aver that since they
finding both the appellants guilty of the crime charged. opted not to testify on their respective statements, there
The decretal portion of the decision of the trial court reads: was no opportunity for cross-examination. Consequently,
the admissions made by one appellant in his sworn
FROM THE FOREGOING PREMISES, this Court renders statement are hearsay evidence against the other
judgment finding the two (2) accused Casiano Buntag, alias appellant, and vice versa. In fine, the appellants contend
Ciano, and Diego Bongo guilty beyond reasonable doubt of that the trial court should have acquitted them of the crime
the crime of MURDER, an act committed contrary to the charged.
provisions of Article 248, in relation to Article 14 of the
Revised Penal Code, as amended, and does hereby We agree with the appellants that the prosecution failed to
sentences each one of them to the penalty of Reclusion adduce direct evidence that they conspired to kill Otte and
Perpetua, with all the accusatory penalties imposed by law. that they, in fact, stabbed and killed the victim. However,
we find and so hold, after an incisive review of the records,
There being no evidence disclosed as to the civil liability, that the prosecution adduced sufficient circumstantial
this Court, therefore, limits in providing that the accused evidence to prove the guilt of the appellants beyond
shall pay jointly the heirs of the deceased Berno Georg reasonable doubt.
Otte the amount of Fifty Thousand Pesos (P50,000.00), by
way of moral damages, but without subsidiary Article 8 of the Revised Penal Code provides that there is
imprisonment in case of insolvency. conspiracy when two or more persons agree to commit a
crime and decide to commit it. Direct proof is not essential
Without pronouncement as to costs. to establish conspiracy, and may be inferred from the
collective acts of the accused before, during and after the
SO ORDERED.32 commission of the crime.36 Conspiracy can be presumed
from and proven by acts of the accused themselves when
The trial court relied, inter alia, on the sworn statement of the said acts point to a joint purpose and design, concerted
Buntag dated February 21, 199233 and the counter- action and community of interests.37 It is not necessary to
affidavit of Bongo34 in convicting them of the crime show that all the conspirators actually hit and killed the
charged. Both the appellants appealed the decision. victim. Conspiracy renders all the conspirators as co-
principals regardless of the extent and character of their
Although the appellants enumerated separate issues in
participation because in contemplation of law, the act of
their briefs, the same may be synthesized into three
one conspirator is the act of all.38
issues, namely: (a) whether or not the prosecution proved
beyond reasonable doubt that they conspired to kill the The crime charged may also be proved by circumstantial
victim Otte and that they, in fact, killed him; (b) whether or evidence, sometimes referred to as indirect or presumptive
not the appellants are guilty of murder; and, (c) whether or evidence. Circumstantial evidence is sufficient on which to
anchor a judgment of conviction if the following requisites investigation, are high quality evidence.51 MCTC Judge
are established: (a) there is more than one circumstance; Antonio Sarce testified on the said sworn statement and
(b) the facts from which the inferences are derived have counter-affidavit and was cross-examined.52 Moreover,
been established; and, (c) the combination of all the some of the extrajudicial inculpatory admissions of one
circumstances is such as to warrant a finding of guilt appellant are identical with some of the extrajudicial
beyond reasonable doubt.39 inculpatory admissions of the other, and vice versa. This
corroborates and confirms their veracity. Such admissions,
In People v. Delim,40 we held, thus: made without collusion, are akin to interlocking
extrajudicial confessions. They are admissible as
The prosecution is burdened to prove the essential events circumstantial evidence against the other appellant
which constitute a compact mass of circumstantial implicated therein to show the probability of his
evidence, and the proof of each being confirmed by the participation in the commission of the crime and as
proof of the other, and all without exception leading by corroborative evidence against him.53 The Court rejects
mutual support to but one conclusion: the guilt of the the appellants’ contention that they were deprived of their
accused for the offense charged. For circumstantial right to cross-examine the other on the latter’s admissions
evidence to be sufficient to support a conviction, all the against the other. Through their common counsel, they
circumstances must be consistent with each other, opted not to testify and be cross-examined on their
consistent with the hypothesis that accused is guilty and at respective statements by the prosecution. They opted to
the same time inconsistent with the hypothesis that he is file a motion to acquit. Besides, they had opportunity to
innocent, and with every other rational hypothesis except cross-examine Judge Sarce before whom they swore to the
that of guilt. If the prosecution adduced the requisite truthfulness of their statements.54
circumstantial evidence to prove the guilt of the accused
beyond reasonable doubt, the burden of evidence shifts to In this case, the prosecution adduced the following
the accused to controvert the evidence of the circumstantial evidence which constitutes proof beyond
prosecution.41 reasonable doubt that the appellants, indeed, conspired to
kill and did kill the victim:
In convicting the appellants of the crime charged, the trial
court relied not only on the counter-affidavit of appellant 1. Appellant Buntag admitted, in his sworn
Bongo42 and appellant Buntag’s sworn statement,43 but statement,55 that, at about 1:00 a.m. on February 9, 1992,
also on the other evidence on record, namely, the knife he was in the company of appellant Bongo and the victim
used in killing the victim,44 the key to Otte’s room,45 and Otte at the crossing of Alona Beach, and that appellant
the collective testimonies of the other witnesses of the Bongo was armed with a hunting knife. Appellant Buntag
prosecution. identified the victim through the latter’s picture, as well as
the hunting knife used in the killing.56 Appellant Bongo, in
The general rule is that the extrajudicial confession or his counter-affidavit, confirmed the truth of appellant
admission of one accused is admissible only against the Buntag’s admissions and also admitted that on the said
said accused but is inadmissible against the other date, time and place, he was with appellant Buntag and
accused.46 The same rule applies if the extrajudicial the victim, and that he was armed with a hunting knife
confession is made by one accused after the conspiracy which was tucked on his waist.
has ceased. However, if the declarant/admitter repeats in
court his extrajudicial confession during trial and the other 2. The appellants admitted in their respective
accused is accorded the opportunity to cross-examine the statements that on the said occasion, Otte died from a stab
admitter, such confession or admission is admissible wound caused by a hunting knife.
against both accused.47 The erstwhile extrajudicial
confession or admission when repeated during the trial is 3. Appellant Bongo admitted in his counter-
transposed into judicial admissions. affidavit that he took the key to the victim’s room and hid
it near their house where the policemen found it.
In criminal cases, an admission is something less than a
confession. It is but a statement of facts by the accused, 4. While both appellants were within the
direct or implied, which do not directly involve an periphery of the situs criminis, Mihangos and Guigue
acknowledgment of his guilt or of his criminal intent to sauntered by with their bicycles at their sides. Suddenly,
commit the offense with which he is bound, against his the appellants jointly and simultaneously lunged at them,
interests, of the evidence or truths charged.48 It is an causing Mihangos and Guigue to believe that their lives
acknowledgment of some facts or circumstances which, in were in peril, impelling them to run for their lives and seek
itself, is insufficient to authorize a conviction and which sanctuary in the house of Guigue’s uncle, Aquilino Bongo.
tends only to establish the ultimate facts of guilt.49 A By the time Mihangos and Guigue returned to the situs
confession, on the other hand, is an acknowledgment, in criminis to retrieve their bicycles, the appellants had
express terms, of his guilt of the crime charged.50 already left.

In this case, appellant Buntag made extrajudicial 5. In his sworn statement, appellant Buntag
admissions against his interest in his sworn statement, and admitted that after the victim was stabbed, he and
not a confession. So did appellant Bongo in his counter- appellant Bongo fled from the situs criminis. This was
affidavit. Such admissions in the form of affidavits, made corroborated by the testimony of Mihangos. The presence
in the Municipal Trial Court in the course of its preliminary of both appellants at the situs criminis and their flight from
the scene are strong indicia of their participation in the claims, he had nothing to do with the stabbing of the
commission of the crime and their complicity therein.57 victim, he should have sought the help of the teenagers,
Appellant Bongo opted not to testify or adduce evidence to brought the victim to the hospital and reported to the
controvert the testimony of Mihangos and the admissions police authorities that it was appellant Bongo who stabbed
of the appellant prejudicial to him. the victim. Appellant Buntag failed to do so. Neither did
appellant Bongo seek the help of the two teenagers and
6. The hunting knife of appellant Bongo which report the stabbing to the police authorities. Both
was used to kill the victim was left at the scene of the appellants’ unexplained omission is another indication of
crime where the policemen recovered it shortly thereafter. their conspiracy and complicity in the crime charged.

7. The appellants admitted in their respective Third. Appellant Bongo took the key from the body of the
sworn statements that the victim was stabbed once with a victim and hid it near their house where the policemen
hunting knife. These admissions were corroborated by Dr. found it. The appellant has not explained why he had the
Julita Cogo’s finding that the victim was stabbed once on key to the victim’s room and hid it near their house. He
the anterior chest area.58 The doctor testified that the owned the hunting knife used in stabbing the victim. He
stab wound could have been caused by a sharp-edged knew or should have known that sooner or later, the
weapon.59 policemen would trace the knife to him; and yet, appellant
Bongo failed to report the incident to the police authorities
8. Neither of the appellants brought the and surrender the knife to them.
victim to the hospital for immediate medical attendance
and operation. Fourth. Appellant Bongo denied involvement in the killing
and pointed to appellant Buntag as the assailant only after
9. Although the appellants pointed to the the latter had executed his own sworn statement pointing
other as the assailant in their respective statements, to appellant Bongo as the victim’s assailant. We are
neither of them reported the stabbing to the police convinced that appellant Bongo’s denial of any
authorities and claimed that the other killed the victim. involvement in the killing is but a belated afterthought to
escape criminal liability for the victim’s death.
10. Neither of the appellants took the witness stand to
deny any involvement in the killing of the victim. The The trial court convicted the appellants of murder under
evidence of the prosecution, thus, stands unrebutted. Article 248 of the Revised Penal Code, as amended, and
sentenced each of them to reclusion perpetua. We note,
The appellants cannot rely on the exculpatory portions of however, that the trial court, in its amended decision,
their respective statements as basis for their acquittal of made no finding on any attendant circumstance which
the crime charged. In the case of appellant Buntag, he would qualify the killing to murder. It bears stressing that
avers in his sworn statement that he was ordered by under the Rules of Criminal Procedure, any qualifying
appellant Bongo to box the victim and when he refused, circumstance attendant to the commission of a crime must
appellant Bongo himself boxed and stabbed the victim with be alleged in the Information and proved by the
the hunting knife. When appellant Buntag fled from the prosecution, conformably to the constitutional right of an
scene and went back home, appellant Bongo followed and accused to be informed of the nature of the charges
warned him not to divulge the incident so that he would against him.
not be implicated. For his part, appellant Bongo turned the
tables on appellant Buntag and claimed in his counter- In this case, the Information alleged that treachery was
affidavit that the latter snatched the hunting knife from his attendant in the commission of the crime. The prosecution
waist and stabbed the victim in the heat of their was burdened to prove beyond reasonable doubt, not only
altercation. The stabbing was so sudden, he insists, that the crime itself, but also the qualifying circumstance of
he was unable to stop appellant Buntag from stabbing the alevosia.60 Treachery cannot be based on speculations
victim. and surmises. In order that treachery may be appreciated
as a qualifying circumstance under Article 14 of the
We are not persuaded by the claims of the appellants for Revised Penal Code, the prosecution is burdened to prove
the following reasons: that (a) the malefactor employed means, method or
manner of execution affording the person attacked no
First. Contrary to the claim of appellant Buntag that opportunity to defend himself or to retaliate and, (b) the
appellant Bongo boxed the victim, the necropsy report of means, method or manner of execution was deliberately or
Dr. Cogo failed to show that the victim’s body sustained consciously adopted by the offender. In this case, there
hematoma, bruises or contusions. The findings of the was no eyewitness to the crime.
doctor must prevail as against the bare statements of the
appellants. On the other hand, appellant Buntag, in his sworn
statement, claimed that before the victim was stabbed,
Second. Appellant Buntag admitted in his sworn statement appellant Bongo and the victim had an altercation;
that before he and appellant Bongo could leave the situs appellant Bongo, in his counter-affidavit, stated that it was
criminis after the victim was stabbed, Mihangos and appellant Buntag and the victim who had an altercation
Guigue arrived. The appellants lunged jointly and before the victim was killed. There is no evidence that the
simultaneously at the two teenagers which so terrified the appellants deliberately or consciously adopted a method or
latter that they fled for their lives. If, as appellant Buntag means of execution to insure the death of the victim.
In fine then, the appellants are guilty only of homicide, accused, conspiring, confederating and mutually helping
punishable under Article 249 of the Revised Penal Code one another, with intent to kill and by means of treachery
with reclusion temporal in its full range, which is twelve and evident premeditation, availing of nighttime to afford
(12) years and one (1) day to twenty (20) years. There impunity, and with the use of an explosive, did there and
being no modifying circumstance attendant to the crime, then willfully, unlawfully and feloniously lob a hand
the maximum of the indeterminate penalty should be in its grenade that landed and eventually exploded at the roof of
medium period. the house of Jaime Agbanlog trajecting deadly shrapnels
that hit and killed one ROBERT AGBANLOG, per the death
The trial court awarded moral damages to the heirs of the certificate, and causing Jerry Bullanday, Jimmy Wabe,
victim, although the prosecution failed to present any heir Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena
of the victim as witness. The trial court, likewise, failed to Agbanlog to suffer shrapnel wounds on their bodies, per
award civil indemnity ex delicto to the heirs of the victim. the medical certificates; thus, to the latter victims, the
The decision of the trial court shall, thus, be modified accused commenced all the acts of execution that would
accordingly. have produced the crime of Multiple Murder as
consequences thereof but nevertheless did not produce
IN LIGHT OF ALL THE FOREGOING, the Decision of the them by reason of the timely and able medical and surgical
Regional Trial Court of Tagbilaran City, Branch 3, in interventions of physicians, to the damage and prejudice of
Criminal Case No. 7729 is AFFIRMED WITH MODIFICATIONS. the deceased’s heirs and the other victims.
Appellants Casiano Buntag alias “Ciano” and Diego Bongo
are found guilty, as principals, of homicide under Article CONTRARY TO LAW.1
249 of the Revised Penal Code. There being no modifying
circumstances attendant to the crime, each of the On arraignment, appellants pleaded “not guilty”.2 Trial on
appellants are sentenced to suffer an indeterminate the merits then ensued.
penalty from ten (10) years of prision mayor, in its medium
period, as minimum, to sixteen (16) years and one (1) day As culled from the records, at around 7:00 in the evening
of reclusion temporal in its medium period, as maximum. of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry
The award of moral damages is deleted. The said Bullanday,3 Rey Camat and Lorenzo Eugenio were having
appellants are ordered to pay, jointly and severally, to the a drinking spree on the terrace of the house of Robert’s
heirs of the victim Berno Georg Otte, P50,000 as civil father, Barangay Councilman Jaime Agbanlog, situated in
indemnity, conformably to current jurisprudence.61 Costs Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog
de oficio. was seated on the banister of the terrace listening to the
conversation of the companions of his son.4
SO ORDERED.
As the drinking session went on, Robert and the others
Puno, (Chairman), Quisumbing, Austria-Martinez, and noticed appellants Antonio Comadre, George Comadre and
Tinga, JJ., concur. Danilo Lozano walking. The three stopped in front of the
house. While his companions looked on, Antonio suddenly
lobbed an object which fell on the roof of the terrace.
Appellants immediately fled by scaling the fence of a
People vs Comadre : 153559 : June 8, 2004 : Per Curiam : nearby school.5
En Banc : Decision
The object, which turned out to be a hand grenade,
exploded ripping a hole in the roof of the house. Robert
Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and
EN BANC Lorenzo Eugenio were hit by shrapnel and slumped
unconscious on the floor.6 They were all rushed to the San
[G.R. No. 153559. June 8, 2004] Jose General Hospital in Lupao, Nueva Ecija for medical
treatment. However, Robert Agbanlog died before reaching
PEOPLE OF THE PHILIPPINES, APPELLEE, the hospital.7
VS. ANTONIO COMADRE, GEORGE
COMADRE AND DANILO LOZANO, Dr. Tirso de los Santos, the medico-legal officer who
APPELLANTS. conducted the autopsy on the cadaver of Robert Agbanlog,
certified that the wounds sustained by the victim were
DECISION consistent with the injuries inflicted by a grenade explosion
and that the direct cause of death was hypovolemic shock
PER CURIAM: due to hand grenade explosion.8 The surviving victims,
Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry
Appellants Antonio Comadre, George Comadre and Danilo Bullanday sustained shrapnel injuries.9
Lozano were charged with Murder with Multiple Frustrated
Murder in an information which reads: SPO3 John Barraceros of the Lupao Municipal Police
Station, who investigated the scene of the crime,
That on or about the 6th of August 1995, at Brgy. San recovered metallic fragments at the terrace of the
Pedro, Lupao, Nueva Ecija, Philippines, and within the Agbanlog house. These fragments were forwarded to the
jurisdiction of this Honorable Court, the above-named Explosive Ordinance Disposal Division in Camp Crame,
Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in severally Jimmy Wabe, Rey Camat, Gerry Bullanday and
said division, identified them as shrapnel of an MK2 hand Jaime Agbanlog P30,000.00 as indemnity for their
grenade.10 attempted murder.

Denying the charges against him, appellant Antonio Costs against the accused.
Comadre claimed that on the night of August 6, 1995, he
was with his wife and children watching television in the SO ORDERED.
house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that Hence, this automatic review pursuant to Article 47 of the
he was surprised when three policemen from the Lupao Revised Penal Code, as amended. Appellants contend that
Municipal Police Station went to his house the following the trial court erred: (1) when it did not correctly and
morning of August 7, 1995 and asked him to go with them judiciously interpret and appreciate the evidence and thus,
to the police station, where he has been detained since.11 the miscarriage of justice was obviously omnipresent; (2)
when it imposed on the accused-appellants the supreme
Appellant George Comadre, for his part, testified that he is penalty of death despite the evident lack of the quantum of
the brother of Antonio Comadre and the brother-in-law of evidence to convict them of the crime charged beyond
Danilo Lozano. He also denied any involvement in the reasonable doubt; and (3) when it did not apply the law
grenade-throwing incident, claiming that he was at home and jurisprudence for the acquittal of the accused-
when it happened. He stated that he is a friend of Rey appellants of the crime charged.17
Camat and Jimmy Wabe, and that he had no animosity
towards them whatsoever. Appellant also claimed to be in Appellants point to the inconsistencies in the sworn
good terms with the Agbanlogs so he has no reason to statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio
cause them any grief.12 and Gerry Bullanday in identifying the perpetrators. Wabe,
Camat and Eugenio initially executed a Sinumpaang
Appellant Danilo Lozano similarly denied any complicity in Salaysay on August 7, 1995 at the hospital wherein they
the crime. He declared that he was at home with his ten did not categorically state who the culprit was but merely
year-old son on the night of August 6, 1995. He added that named Antonio Comadre as a suspect. Gerry Bullanday
he did not see Antonio and George Comadre that night and declared that he suspected Antonio Comadre as one of the
has not seen them for quite sometime, either before or culprits because he saw the latter’s ten year-old son bring
after the incident. Like the two other appellants, Lozano something in the nearby store before the explosion
denied having any misunderstanding with Jaime Agbanlog, occurred.
Robert Agbanlog and Jimmy Wabe.13
On August 27, 1995, or twenty days later, they went to the
Antonio’s father, Patricio, and his wife, Lolita, corroborated police station to give a more detailed account of the
his claim that he was at home watching television with incident, this time identifying Antonio Comadre as the
them during the night in question.14 Josie Comadre, perpetrator together with George Comadre and Danilo
George’s wife, testified that her husband could not have Lozano.
been among those who threw a hand grenade at the house
of the Agbanlogs because on the evening of August 6, A closer scrutiny of the records shows that no contradiction
1995, they were resting inside their house after working all actually exists, as all sworn statements pointed to the
day in the farm.15 same perpetrators, namely, Antonio Comadre, George
Comadre and Danilo Lozano. Moreover, it appears that the
After trial, the court a quo gave credence to the first statement was executed a day after the incident,
prosecution’s evidence and convicted appellants of the when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were
complex crime of Murder with Multiple Attempted still in the hospital for the injuries they sustained.
Murder,16 the dispositive portion of which states: Coherence could not thus be expected in view of their
condition. It is therefore not surprising for the witnesses to
WHEREFORE, in view of the foregoing, judgment is hereby come up with a more exhaustive account of the incident
rendered: after they have regained their equanimity. The lapse of
twenty days between the two statements is immaterial
1. Finding accused Antonio Comadre, George because said period even helped them recall some facts
Comadre and Danilo Lozano GUILTY beyond reasonable which they may have initially overlooked.
doubt of the complex crime of Murder with Multiple
Attempted Murder and sentencing them to suffer the
imposable penalty of death;
Witnesses cannot be expected to remember all the details
2. Ordering Antonio Comadre, George of the harrowing event which unfolded before their eyes.
Comadre and Danilo Lozano to pay jointly and severally the Minor discrepancies might be found in their testimony, but
heirs of Robert Agbanlog P50,000.00 as indemnification for they do not damage the essential integrity of the evidence
his death, P35,000.00 as compensatory damages and in its material whole, nor should they reflect adversely on
P20,000.00 as moral damages; the witness’ credibility as they erase suspicion that the
same was perjured.18 Honest inconsistencies on minor and
3. Ordering accused Antonio Comadre, trivial matters serve to strengthen rather than destroy the
George Comadre and Danilo Lozano to pay jointly and credibility of a witness to a crime, especially so when, as in
the instant case, the crime is shocking to the conscience We disagree.
and numbing to the senses.19
Similar to the physical act constituting the crime itself, the
Moreover, it was not shown that witnesses Jimmy Wabe, elements of conspiracy must be proven beyond reasonable
Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any doubt. Settled is the rule that to establish conspiracy,
motive to testify falsely against appellants. Absent evidence of actual cooperation rather than mere
evidence showing any reason or motive for prosecution cognizance or approval of an illegal act is required.26
witnesses to perjure, the logical conclusion is that no such
improper motive exists, and their testimony is thus worthy A conspiracy must be established by positive and
of full faith and credit. conclusive evidence. It must be shown to exist as clearly
and convincingly as the commission of the crime itself.
The trial court is likewise correct in disregarding Mere presence of a person at the scene of the crime does
appellants’ defense of alibi and denial. For the defense of not make him a conspirator for conspiracy transcends
alibi to prosper, the accused must prove not only that he companionship.27
was at some other place at the time of the commission of
the crime but also that it was physically impossible for him The evidence shows that George Comadre and Danilo
to be at the locus delicti or within its immediate vicinity.20 Lozano did not have any participation in the commission of
the crime and must therefore be set free. Their mere
Apart from testifying with respect to the distance of their presence at the scene of the crime as well as their close
houses from that of Jaime Agbanlog’s residence, appellants relationship with Antonio are insufficient to establish
were unable to give any explanation and neither were they conspiracy considering that they performed no positive act
able to show that it was physically impossible for them to in furtherance of the crime.
be at the scene of the crime. Hence, the positive
identification of the appellants by eyewitnesses Jimmy Neither was it proven that their act of running away with
Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday Antonio was an act of giving moral assistance to his
prevails over their defense of alibi and denial.21 criminal act. The ratiocination of the trial court that “their
presence provided encouragement and sense of security to
It was established that prior to the grenade explosion, Rey Antonio,” is devoid of any factual basis. Such finding is not
Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday supported by the evidence on record and cannot therefore
were able to identify the culprits, namely, appellants be a valid basis of a finding of conspiracy.
Antonio Comadre, George Comadre and Danilo Lozano
because there was a lamppost in front of the house and Time and again we have been guided by the principle that
the moon was bright.22 it would be better to set free ten men who might be
probably guilty of the crime charged than to convict one
Appellants’ argument that Judge Bayani V. Vargas, the innocent man for a crime he did not commit.28 There
Presiding Judge of the Regional Trial Court of San Jose City, being no conspiracy, only Antonio Comadre must answer
Branch 38 erred in rendering the decision because he was for the crime.
not the judge who heard and tried the case is not well
taken. Coming now to Antonio’s liability, we find that the trial
court correctly ruled that treachery attended the
It is not unusual for a judge who did not try a case to commission of the crime. For treachery to be appreciated
decide it on the basis of the record for the trial judge might two conditions must concur: (1) the means, method and
have died, resigned, retired, transferred, and so forth.23 As form of execution employed gave the person attacked no
far back as the case of Co Tao v. Court of Appeals24 we opportunity to defend himself or retaliate; and (2) such
have held: “The fact that the judge who heard the means, methods and form of execution was deliberately
evidence is not the one who rendered the judgment and and consciously adopted by the accused. Its essence lies in
that for that reason the latter did not have the opportunity the adoption of ways to minimize or neutralize any
to observe the demeanor of the witnesses during the trial resistance, which may be put up by the offended party.
but merely relied on the records of the case does not
render the judgment erroneous.” This rule had been Appellant lobbed a grenade which fell on the roof of the
followed for quite a long time, and there is no reason to go terrace where the unsuspecting victims were having a
against the principle now.25 drinking spree. The suddenness of the attack coupled with
the instantaneous combustion and the tremendous impact
However, the trial court’s finding of conspiracy will have to of the explosion did not afford the victims sufficient time to
be reassessed. The undisputed facts show that when scamper for safety, much less defend themselves; thus
Antonio Comadre was in the act of throwing the hand insuring the execution of the crime without risk of reprisal
grenade, George Comadre and Danilo Lozano merely or resistance on their part. Treachery therefore attended
looked on without uttering a single word of encouragement the commission of the crime.
or performed any act to assist him. The trial court held
that the mere presence of George Comadre and Danilo It is significant to note that aside from treachery, the
Lozano provided encouragement and a sense of security to information also alleges the “use of an explosive”29 as an
Antonio Comadre, thus proving the existence of aggravating circumstance. Since both attendant
conspiracy. circumstances can qualify the killing to murder under
Article 248 of the Revised Penal Code,30 we should
determine which of the two circumstances will qualify the person or persons, the use of such explosives, detonation
killing in this case. agents or incendiary devices shall be considered as an
aggravating circumstance. (shall be punished with the
When the killing is perpetrated with treachery and by penalty of death is DELETED.)
means of explosives, the latter shall be considered as a
qualifying circumstance. Not only does jurisprudence31 xxx xxx
support this view but also, since the use of explosives is x x x.
the principal mode of attack, reason dictates that this
attendant circumstance should qualify the offense instead With the removal of death as a penalty and the insertion of
of treachery which will then be relegated merely as a the term “xxx as an aggravating circumstance,” the
generic aggravating circumstance.32 unmistakable import is to downgrade the penalty for illegal
possession of explosives and consider its use merely as an
Incidentally, with the enactment on June 6, 1997 of aggravating circumstance.
Republic Act No. 829433 which also considers the use of
explosives as an aggravating circumstance, there is a need
to make the necessary clarification insofar as the legal
implications of the said amendatory law vis-à-vis the Clearly, Congress intended R.A. No. 8294 to reduce the
qualifying circumstance of “by means of explosion” under penalty for illegal possession of firearms and explosives.
Article 248 of the Revised Penal Code are concerned. Also, Congress clearly intended RA No. 8294 to consider as
Corollary thereto is the issue of which law should be aggravating circumstance, instead of a separate offense,
applied in the instant case. illegal possession of firearms and explosives when such
possession is used to commit other crimes under the
R.A. No. 8294 was a reaction to the onerous and Revised Penal Code.
anachronistic penalties imposed under the old illegal
possession of firearms law, P.D. 1866, which prevailed It must be made clear, however, that RA No. 8294 did not
during the tumultuous years of the Marcos dictatorship. amend the definition of murder under Article 248, but
The amendatory law was enacted, not to decriminalize merely made the use of explosives an aggravating
illegal possession of firearms and explosives, but to lower circumstance when resorted to in committing “any of the
their penalties in order to rationalize them into more crimes defined in the Revised Penal Code.” The legislative
acceptable and realistic levels.34 purpose is to do away with the use of explosives as a
separate crime and to make such use merely an
This legislative intent is conspicuously reflected in the aggravating circumstance in the commission of any crime
reduction of the corresponding penalties for illegal already defined in the Revised Penal Code. Thus, RA No.
possession of firearms, or ammunitions and other related 8294 merely added the use of unlicensed explosives as
crimes under the amendatory law. Under Section 2 of the one of the aggravating circumstances specified in Article
said law, the penalties for unlawful possession of 14 of the Revised Penal Code. Like the aggravating
explosives are also lowered. Specifically, when the illegally circumstance of “explosion” in paragraph 12, “evident
possessed explosives are used to commit any of the crimes premeditation” in paragraph 13, or “treachery” in
under the Revised Penal Code, which result in the death of paragraph 16 of Article 14, the new aggravating
a person, the penalty is no longer death, unlike in P.D. No. circumstance added by RA No. 8294 does not change the
1866, but it shall be considered only as an aggravating definition of murder in Article 248.
circumstance. Section 3 of P.D. No. 1866 as amended by
Section 2 of R.A. 8294 now reads: Nonetheless, even if favorable to the appellant, R.A. No.
8294 still cannot be made applicable in this case. Before
Section 2. Section 3 of Presidential Decree No. 1866, as the use of unlawfully possessed explosives can be properly
amended, is hereby further amended to read as follows: appreciated as an aggravating circumstance, it must be
adequately established that the possession was illegal or
Section 3. Unlawful Manufacture, Sale, Acquisition, unlawful, i.e., the accused is without the corresponding
Disposition or Possession of Explosives. The penalty of authority or permit to possess. This follows the same
prision mayor in its maximum period to reclusion temporal requisites in the prosecution of crimes involving illegal
and a fine of not less than Fifty thousand pesos possession of firearm35 which is a kindred or related
(P50,000.00) shall be imposed upon any person who shall offense under P.D. 1866, as amended. This proof does not
unlawfully manufacture, assemble, deal in, acquire, obtain in the present case. Not only was it not alleged in
dispose or possess hand grenade(s), rifle grenade(s), and the information, but no evidence was adduced by the
other explosives, including but not limited to “pillbox,” prosecution to show that the possession by appellant of
“molotov cocktail bombs,” “fire bombs,” or other the explosive was unlawful.
incendiary devices capable of producing destructive effect
on contiguous objects or causing injury or death to any It is worthy to note that the above requirement of illegality
person. is borne out by the provisions of the law itself, in
conjunction with the pertinent tenets of legal
When a person commits any of the crimes defined in the hermeneutics.
Revised Penal Code or special law with the use of the
aforementioned explosives, detonation agents or A reading of the title36 of R.A. No. 8294 will show that the
incendiary devises, which results in the death of any qualifier “illegal/unlawful ...possession” is followed by “of
firearms, ammunition, or explosives or instruments...” offenses should be considered only as a single crime in law
Although the term ammunition is separated from on which a single penalty is imposed because the offender
“explosives” by the disjunctive word “or”, it does not mean was impelled by a “single criminal impulse” which shows
that “explosives” are no longer included in the items which his lesser degree of perversity.41
can be illegally/unlawfully possessed. In this context, the
disjunctive word “or” is not used to separate but to signify Under the aforecited article, when a single act constitutes
a succession or to conjoin the enumerated items two or more grave or less grave felonies the penalty for the
together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: most serious crime shall be imposed, the same to be
“Section 3. Unlawful Manufacture, Sale, Acquisition, applied in its maximum period irrespective of the presence
Disposition or Possession of Explosives”, clearly refers to of modifying circumstances, including the generic
the unlawful manufacture, sale, or possession of aggravating circumstance of treachery in this case.42
explosives. Applying the aforesaid provision of law, the maximum
penalty for the most serious crime (murder) is death. The
What the law emphasizes is the act’s lack of authority. trial court, therefore, correctly imposed the death penalty.
Thus, when the second paragraph of Section 3, P.D. No.
1866, as amended by RA No. 8294 speaks of “the use of Three justices of the Court, however, continue to maintain
the aforementioned explosives, etc.” as an aggravating the unconstitutionality of R.A. 7659 insofar as it prescribes
circumstance in the commission of crimes, it refers to the death penalty. Nevertheless, they submit to the ruling
those explosives, etc. “unlawfully” manufactured, of the majority to the effect that the law is constitutional
assembled, dealt in, acquired, disposed or possessed and that the death penalty can be lawfully imposed in the
mentioned in the first paragraph of the same section. What case at bar.
is per se aggravating is the use of unlawfully
“manufactured … or possessed” explosives. The mere use Finally, the trial court awarded to the parents of the victim
of explosives is not. Robert Agbanlog civil indemnity in the amount of
P50,000.00, P35,000.00 as compensatory damages and
The information in this case does not allege that appellant P20,000.00 as moral damages. Pursuant to existing
Antonio Comadre had unlawfully possessed or that he had jurisprudence43 the award of civil indemnity is proper.
no authority to possess the grenade that he used in the However, the actual damages awarded to the heirs of
killing and attempted killings. Even if it were alleged, its Robert Agbanlog should be modified, considering that the
presence was not proven by the prosecution beyond prosecution was able to substantiate only the amount of
reasonable doubt. Rule 110 of the 2000 Revised Rules on P18,000.00 as funeral expenses.44
Criminal Procedure requires the averment of aggravating
circumstances for their application.39 The award of moral damages is appropriate there being
evidence to show emotional suffering on the part of the
The inapplicability of R.A. 8294 having been made heirs of the deceased, but the same must be increased to
manifest, the crime committed is Murder committed “by P50,000.00 in accordance with prevailing judicial policy.45
means of explosion” in accordance with Article 248 (3) of
the Revised Penal Code. The same, having been alleged in With respect to the surviving victims Jaime Agbanlog,
the Information, may be properly considered as appellant Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial
was sufficiently informed of the nature of the accusation court awarded P30,000.00 each for the injuries they
against him.40 sustained. We find this award inappropriate because they
were not able to present a single receipt to substantiate
The trial court found appellant guilty of the complex crime their claims. Nonetheless, since it appears that they are
of murder with multiple attempted murder under Article 48 entitled to actual damages although the amount thereof
of the Revised Penal Code, which provides: cannot be determined, they should be awarded temperate
damages of P25,000.00 each.46
Art. 48. Penalty for complex crimes. – When a single act
constitutes two or more grave or less grave felonies, or WHEREFORE, in view of all the foregoing, the appealed
when an offense is a necessary means of committing the decision of the Regional Trial Court of San Jose City, Branch
other, the penalty for the most serious crime shall be 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as
imposed, the same to be applied in its maximum period. appellant Antonio Comadre is convicted of the complex
crime of Murder with Multiple Attempted Murder and
The underlying philosophy of complex crimes in the sentenced to suffer the penalty of death. He is ordered to
Revised Penal Code, which follows the pro reo principle, is pay the heirs of the victim the amount of P50,000.00 as
intended to favor the accused by imposing a single penalty civil indemnity, P50,000.00 as moral damages and
irrespective of the crimes committed. The rationale being, P18,000.00 as actual damages and likewise ordered to pay
that the accused who commits two crimes with single the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey
criminal impulse demonstrates lesser perversity than when Camat and Gerry Bullanday, P25,000.00 each as temperate
the crimes are committed by different acts and several damages for the injuries they sustained. Appellants
criminal resolutions. Gregorio Comadre and Danilo Lozano are ACQUITTED for
lack of evidence to establish conspiracy, and they are
The single act by appellant of detonating a hand grenade hereby ordered immediately RELEASED from confinement
may quantitatively constitute a cluster of several separate unless they are lawfully held in custody for another cause.
and distinct offenses, yet these component criminal Costs de oficio.
In accordance with Section 25 of Republic Act 7659 Code with the use of explosives, detonation agents or
amending Article 83 of the Revised Penal Code, upon incendiary devices which results in the death of any person
finality of this Decision, let the records of this case be or persons, the use of such explosives, etc. shall be
forwarded to the Office of the President for possible considered as an aggravating circumstance:
exercise of pardoning power.
When a person commits any of the crimes defined in the
SO ORDERED. Revised Penal Code or special laws with the use of the
aforementioned explosives, detonation agents or
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, incendiary devices, which results in the death of any
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria- person or persons, the use of such explosives, detonation
Martinez, Corona, Carpio-Morales, Azcuna and Tinga, JJ., agents or incendiary devices shall be considered as an
concur. aggravating circumstance.

Callejo, Sr., J., see concurring and dissenting opinion. Paragraph 3 of Article 248 of the Revised Penal Code, as
amended by Rep Act No. 7659, was, thus, amended by
Section 2 of Rep. Act No. 8294. Under the latter law, the
use of a hand grenade in killing the victim was downgraded
from being a qualifying circumstance to a mere generic
aggravating circumstance. Considering that Section 2 of
Rep. Act No. 8294 is favorable to the appellant, the same
should be applied retroactively.2 Considering the factual
milieu in this case, the generic aggravating circumstance
of the use of explosives is absorbed by the qualifying
People vs Comadre : 153559 : June 8, 2004 : J. Callejo Sr : circumstance of treachery.
En Banc : Concurring and Dissenting Opinion
People vs Comadre : 153559 : June 8, 2004 : Per Curiam :
En Banc : Decision

CONCURRING AND DISSENTING OPINION

CALLEJO, SR., J.: EN BANC

I concur with the majority that the appellant Antonio [G.R. No. 153559. June 8, 2004]
Comadre is guilty of murder for the death of Robert
Agbanlog, and multiple attempted murder for the injuries
PEOPLE OF THE PHILIPPINES, APPELLEE, VS.
sustained by the other victims. I dissent, however, from ANTONIO COMADRE, GEORGE COMADRE AND
the ruling of the majority that the killing of Agbanlog is DANILO LOZANO, APPELLANTS.
qualified by the use of explosives and not by treachery.
DECISION
Under Section 3 of P.D. No. 1866 which took effect on June
29, 1983, any person who commits any of the crimes PER CURIAM:
defined in the Revised Penal Code with the use of
explosives, detonation agents or incendiary devices which Appellants Antonio Comadre, George Comadre and Danilo
results in the death of a person shall be sentenced to Lozano were charged with Murder with Multiple Frustrated
suffer the death penalty.1 However, with the onset of the Murder in an information which reads:
1987 Constitution, the imposition of the death penalty was
suspended. That on or about the 6th of August 1995, at Brgy. San
Pedro, Lupao, Nueva Ecija, Philippines, and within the
Under paragraph 3, Article 248 of the Revised Penal Code, jurisdiction of this Honorable Court, the above-named
as amended by Republic Act No. 7659, the use of accused, conspiring, confederating and mutually helping
explosives in killing a person is a circumstance which one another, with intent to kill and by means of treachery
qualifies the killing to murder, the imposable penalty for and evident premeditation, availing of nighttime to afford
which is reclusion perpetua to death. When the crimes impunity, and with the use of an explosive, did there and
were committed by the appellants on August 6, 1995, Rep. then willfully, unlawfully and feloniously lob a hand
Act No. 7659 was already in effect. But while the case was grenade that landed and eventually exploded at the roof of
pending, Rep. act No. 8294 was approved on June 6, 1997. the house of Jaime Agbanlog trajecting deadly shrapnels
Section 2 of the latter law provides that when a person that hit and killed one ROBERT AGBANLOG, per the death
commits any of the crimes defined in the Revised Penal certificate, and causing Jerry Bullanday, Jimmy Wabe,
Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena he was surprised when three policemen from the Lupao
Agbanlog to suffer shrapnel wounds on their bodies, per Municipal Police Station went to his house the following
the medical certificates; thus, to the latter victims, the morning of August 7, 1995 and asked him to go with them
accused commenced all the acts of execution that would to the police station, where he has been detained since.11
have produced the crime of Multiple Murder as
consequences thereof but nevertheless did not produce Appellant George Comadre, for his part, testified that he is
them by reason of the timely and able medical and surgical the brother of Antonio Comadre and the brother-in-law of
interventions of physicians, to the damage and prejudice of Danilo Lozano. He also denied any involvement in the
the deceased’s heirs and the other victims. grenade-throwing incident, claiming that he was at home
when it happened. He stated that he is a friend of Rey
CONTRARY TO LAW.1 Camat and Jimmy Wabe, and that he had no animosity
towards them whatsoever. Appellant also claimed to be in
On arraignment, appellants pleaded “not guilty”.2 Trial on good terms with the Agbanlogs so he has no reason to
the merits then ensued. cause them any grief.12

As culled from the records, at around 7:00 in the evening Appellant Danilo Lozano similarly denied any complicity in
of August 6, 1995, Robert Agbanlog, Jimmy Wabe, Gerry the crime. He declared that he was at home with his ten
Bullanday,3 Rey Camat and Lorenzo Eugenio were having year-old son on the night of August 6, 1995. He added that
a drinking spree on the terrace of the house of Robert’s he did not see Antonio and George Comadre that night and
father, Barangay Councilman Jaime Agbanlog, situated in has not seen them for quite sometime, either before or
Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog after the incident. Like the two other appellants, Lozano
was seated on the banister of the terrace listening to the denied having any misunderstanding with Jaime Agbanlog,
conversation of the companions of his son.4 Robert Agbanlog and Jimmy Wabe.13

As the drinking session went on, Robert and the others Antonio’s father, Patricio, and his wife, Lolita, corroborated
noticed appellants Antonio Comadre, George Comadre and his claim that he was at home watching television with
Danilo Lozano walking. The three stopped in front of the them during the night in question.14 Josie Comadre,
house. While his companions looked on, Antonio suddenly George’s wife, testified that her husband could not have
lobbed an object which fell on the roof of the terrace. been among those who threw a hand grenade at the house
Appellants immediately fled by scaling the fence of a of the Agbanlogs because on the evening of August 6,
nearby school.5 1995, they were resting inside their house after working all
day in the farm.15
The object, which turned out to be a hand grenade,
exploded ripping a hole in the roof of the house. Robert After trial, the court a quo gave credence to the
Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and prosecution’s evidence and convicted appellants of the
Lorenzo Eugenio were hit by shrapnel and slumped complex crime of Murder with Multiple Attempted
unconscious on the floor.6 They were all rushed to the San Murder,16 the dispositive portion of which states:
Jose General Hospital in Lupao, Nueva Ecija for medical
treatment. However, Robert Agbanlog died before reaching WHEREFORE, in view of the foregoing, judgment is hereby
the hospital.7 rendered:

Dr. Tirso de los Santos, the medico-legal officer who 1. Finding accused Antonio Comadre, George
conducted the autopsy on the cadaver of Robert Agbanlog, Comadre and Danilo Lozano GUILTY beyond reasonable
certified that the wounds sustained by the victim were doubt of the complex crime of Murder with Multiple
consistent with the injuries inflicted by a grenade explosion Attempted Murder and sentencing them to suffer the
and that the direct cause of death was hypovolemic shock imposable penalty of death;
due to hand grenade explosion.8 The surviving victims,
Jimmy Wabe, Rey Camat, Jaime Agbanlog and Gerry 2. Ordering Antonio Comadre, George
Bullanday sustained shrapnel injuries.9 Comadre and Danilo Lozano to pay jointly and severally the
heirs of Robert Agbanlog P50,000.00 as indemnification for
SPO3 John Barraceros of the Lupao Municipal Police his death, P35,000.00 as compensatory damages and
Station, who investigated the scene of the crime, P20,000.00 as moral damages;
recovered metallic fragments at the terrace of the
Agbanlog house. These fragments were forwarded to the 3. Ordering accused Antonio Comadre,
Explosive Ordinance Disposal Division in Camp Crame, George Comadre and Danilo Lozano to pay jointly and
Quezon City, where SPO2 Jesus Q. Mamaril, a specialist in severally Jimmy Wabe, Rey Camat, Gerry Bullanday and
said division, identified them as shrapnel of an MK2 hand Jaime Agbanlog P30,000.00 as indemnity for their
grenade.10 attempted murder.

Denying the charges against him, appellant Antonio Costs against the accused.
Comadre claimed that on the night of August 6, 1995, he
was with his wife and children watching television in the SO ORDERED.
house of his father, Patricio, and his brother, Rogelio. He
denied any participation in the incident and claimed that
Hence, this automatic review pursuant to Article 47 of the improper motive exists, and their testimony is thus worthy
Revised Penal Code, as amended. Appellants contend that of full faith and credit.
the trial court erred: (1) when it did not correctly and
judiciously interpret and appreciate the evidence and thus, The trial court is likewise correct in disregarding
the miscarriage of justice was obviously omnipresent; (2) appellants’ defense of alibi and denial. For the defense of
when it imposed on the accused-appellants the supreme alibi to prosper, the accused must prove not only that he
penalty of death despite the evident lack of the quantum of was at some other place at the time of the commission of
evidence to convict them of the crime charged beyond the crime but also that it was physically impossible for him
reasonable doubt; and (3) when it did not apply the law to be at the locus delicti or within its immediate vicinity.20
and jurisprudence for the acquittal of the accused-
appellants of the crime charged.17 Apart from testifying with respect to the distance of their
houses from that of Jaime Agbanlog’s residence, appellants
Appellants point to the inconsistencies in the sworn were unable to give any explanation and neither were they
statements of Jimmy Wabe, Rey Camat, Lorenzo Eugenio able to show that it was physically impossible for them to
and Gerry Bullanday in identifying the perpetrators. Wabe, be at the scene of the crime. Hence, the positive
Camat and Eugenio initially executed a Sinumpaang identification of the appellants by eyewitnesses Jimmy
Salaysay on August 7, 1995 at the hospital wherein they Wabe, Jaime Agbanlog, Rey Camat and Gerry Bullanday
did not categorically state who the culprit was but merely prevails over their defense of alibi and denial.21
named Antonio Comadre as a suspect. Gerry Bullanday
declared that he suspected Antonio Comadre as one of the It was established that prior to the grenade explosion, Rey
culprits because he saw the latter’s ten year-old son bring Camat, Jaime Agbanlog, Jimmy Wabe and Gerry Bullanday
something in the nearby store before the explosion were able to identify the culprits, namely, appellants
occurred. Antonio Comadre, George Comadre and Danilo Lozano
because there was a lamppost in front of the house and
On August 27, 1995, or twenty days later, they went to the the moon was bright.22
police station to give a more detailed account of the
incident, this time identifying Antonio Comadre as the Appellants’ argument that Judge Bayani V. Vargas, the
perpetrator together with George Comadre and Danilo Presiding Judge of the Regional Trial Court of San Jose City,
Lozano. Branch 38 erred in rendering the decision because he was
not the judge who heard and tried the case is not well
A closer scrutiny of the records shows that no contradiction taken.
actually exists, as all sworn statements pointed to the
same perpetrators, namely, Antonio Comadre, George It is not unusual for a judge who did not try a case to
Comadre and Danilo Lozano. Moreover, it appears that the decide it on the basis of the record for the trial judge might
first statement was executed a day after the incident, have died, resigned, retired, transferred, and so forth.23 As
when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were far back as the case of Co Tao v. Court of Appeals24 we
still in the hospital for the injuries they sustained. have held: “The fact that the judge who heard the
Coherence could not thus be expected in view of their evidence is not the one who rendered the judgment and
condition. It is therefore not surprising for the witnesses to that for that reason the latter did not have the opportunity
come up with a more exhaustive account of the incident to observe the demeanor of the witnesses during the trial
after they have regained their equanimity. The lapse of but merely relied on the records of the case does not
twenty days between the two statements is immaterial render the judgment erroneous.” This rule had been
because said period even helped them recall some facts followed for quite a long time, and there is no reason to go
which they may have initially overlooked. against the principle now.25

However, the trial court’s finding of conspiracy will have to


be reassessed. The undisputed facts show that when
Witnesses cannot be expected to remember all the details Antonio Comadre was in the act of throwing the hand
of the harrowing event which unfolded before their eyes. grenade, George Comadre and Danilo Lozano merely
Minor discrepancies might be found in their testimony, but looked on without uttering a single word of encouragement
they do not damage the essential integrity of the evidence or performed any act to assist him. The trial court held
in its material whole, nor should they reflect adversely on that the mere presence of George Comadre and Danilo
the witness’ credibility as they erase suspicion that the Lozano provided encouragement and a sense of security to
same was perjured.18 Honest inconsistencies on minor and Antonio Comadre, thus proving the existence of
trivial matters serve to strengthen rather than destroy the conspiracy.
credibility of a witness to a crime, especially so when, as in
the instant case, the crime is shocking to the conscience We disagree.
and numbing to the senses.19
Similar to the physical act constituting the crime itself, the
Moreover, it was not shown that witnesses Jimmy Wabe, elements of conspiracy must be proven beyond reasonable
Rey Camat, Lorenzo Eugenio and Gerry Bullanday had any doubt. Settled is the rule that to establish conspiracy,
motive to testify falsely against appellants. Absent evidence of actual cooperation rather than mere
evidence showing any reason or motive for prosecution cognizance or approval of an illegal act is required.26
witnesses to perjure, the logical conclusion is that no such
A conspiracy must be established by positive and attendant circumstance should qualify the offense instead
conclusive evidence. It must be shown to exist as clearly of treachery which will then be relegated merely as a
and convincingly as the commission of the crime itself. generic aggravating circumstance.32
Mere presence of a person at the scene of the crime does
not make him a conspirator for conspiracy transcends Incidentally, with the enactment on June 6, 1997 of
companionship.27 Republic Act No. 829433 which also considers the use of
explosives as an aggravating circumstance, there is a need
The evidence shows that George Comadre and Danilo to make the necessary clarification insofar as the legal
Lozano did not have any participation in the commission of implications of the said amendatory law vis-à-vis the
the crime and must therefore be set free. Their mere qualifying circumstance of “by means of explosion” under
presence at the scene of the crime as well as their close Article 248 of the Revised Penal Code are concerned.
relationship with Antonio are insufficient to establish Corollary thereto is the issue of which law should be
conspiracy considering that they performed no positive act applied in the instant case.
in furtherance of the crime.
R.A. No. 8294 was a reaction to the onerous and
Neither was it proven that their act of running away with anachronistic penalties imposed under the old illegal
Antonio was an act of giving moral assistance to his possession of firearms law, P.D. 1866, which prevailed
criminal act. The ratiocination of the trial court that “their during the tumultuous years of the Marcos dictatorship.
presence provided encouragement and sense of security to The amendatory law was enacted, not to decriminalize
Antonio,” is devoid of any factual basis. Such finding is not illegal possession of firearms and explosives, but to lower
supported by the evidence on record and cannot therefore their penalties in order to rationalize them into more
be a valid basis of a finding of conspiracy. acceptable and realistic levels.34

Time and again we have been guided by the principle that This legislative intent is conspicuously reflected in the
it would be better to set free ten men who might be reduction of the corresponding penalties for illegal
probably guilty of the crime charged than to convict one possession of firearms, or ammunitions and other related
innocent man for a crime he did not commit.28 There crimes under the amendatory law. Under Section 2 of the
being no conspiracy, only Antonio Comadre must answer said law, the penalties for unlawful possession of
for the crime. explosives are also lowered. Specifically, when the illegally
possessed explosives are used to commit any of the crimes
Coming now to Antonio’s liability, we find that the trial under the Revised Penal Code, which result in the death of
court correctly ruled that treachery attended the a person, the penalty is no longer death, unlike in P.D. No.
commission of the crime. For treachery to be appreciated 1866, but it shall be considered only as an aggravating
two conditions must concur: (1) the means, method and circumstance. Section 3 of P.D. No. 1866 as amended by
form of execution employed gave the person attacked no Section 2 of R.A. 8294 now reads:
opportunity to defend himself or retaliate; and (2) such
means, methods and form of execution was deliberately Section 2. Section 3 of Presidential Decree No. 1866, as
and consciously adopted by the accused. Its essence lies in amended, is hereby further amended to read as follows:
the adoption of ways to minimize or neutralize any
resistance, which may be put up by the offended party. Section 3. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Explosives. The penalty of
Appellant lobbed a grenade which fell on the roof of the prision mayor in its maximum period to reclusion temporal
terrace where the unsuspecting victims were having a and a fine of not less than Fifty thousand pesos
drinking spree. The suddenness of the attack coupled with (P50,000.00) shall be imposed upon any person who shall
the instantaneous combustion and the tremendous impact unlawfully manufacture, assemble, deal in, acquire,
of the explosion did not afford the victims sufficient time to dispose or possess hand grenade(s), rifle grenade(s), and
scamper for safety, much less defend themselves; thus other explosives, including but not limited to “pillbox,”
insuring the execution of the crime without risk of reprisal “molotov cocktail bombs,” “fire bombs,” or other
or resistance on their part. Treachery therefore attended incendiary devices capable of producing destructive effect
the commission of the crime. on contiguous objects or causing injury or death to any
person.
It is significant to note that aside from treachery, the
information also alleges the “use of an explosive”29 as an When a person commits any of the crimes defined in the
aggravating circumstance. Since both attendant Revised Penal Code or special law with the use of the
circumstances can qualify the killing to murder under aforementioned explosives, detonation agents or
Article 248 of the Revised Penal Code,30 we should incendiary devises, which results in the death of any
determine which of the two circumstances will qualify the person or persons, the use of such explosives, detonation
killing in this case. agents or incendiary devices shall be considered as an
aggravating circumstance. (shall be punished with the
When the killing is perpetrated with treachery and by penalty of death is DELETED.)
means of explosives, the latter shall be considered as a
qualifying circumstance. Not only does jurisprudence31 xxx xxx
support this view but also, since the use of explosives is x x x.
the principal mode of attack, reason dictates that this
With the removal of death as a penalty and the insertion of “Section 3. Unlawful Manufacture, Sale, Acquisition,
the term “xxx as an aggravating circumstance,” the Disposition or Possession of Explosives”, clearly refers to
unmistakable import is to downgrade the penalty for illegal the unlawful manufacture, sale, or possession of
possession of explosives and consider its use merely as an explosives.
aggravating circumstance.
What the law emphasizes is the act’s lack of authority.
Thus, when the second paragraph of Section 3, P.D. No.
1866, as amended by RA No. 8294 speaks of “the use of
Clearly, Congress intended R.A. No. 8294 to reduce the the aforementioned explosives, etc.” as an aggravating
penalty for illegal possession of firearms and explosives. circumstance in the commission of crimes, it refers to
Also, Congress clearly intended RA No. 8294 to consider as those explosives, etc. “unlawfully” manufactured,
aggravating circumstance, instead of a separate offense, assembled, dealt in, acquired, disposed or possessed
illegal possession of firearms and explosives when such mentioned in the first paragraph of the same section. What
possession is used to commit other crimes under the is per se aggravating is the use of unlawfully
Revised Penal Code. “manufactured … or possessed” explosives. The mere use
of explosives is not.
It must be made clear, however, that RA No. 8294 did not
amend the definition of murder under Article 248, but The information in this case does not allege that appellant
merely made the use of explosives an aggravating Antonio Comadre had unlawfully possessed or that he had
circumstance when resorted to in committing “any of the no authority to possess the grenade that he used in the
crimes defined in the Revised Penal Code.” The legislative killing and attempted killings. Even if it were alleged, its
purpose is to do away with the use of explosives as a presence was not proven by the prosecution beyond
separate crime and to make such use merely an reasonable doubt. Rule 110 of the 2000 Revised Rules on
aggravating circumstance in the commission of any crime Criminal Procedure requires the averment of aggravating
already defined in the Revised Penal Code. Thus, RA No. circumstances for their application.39
8294 merely added the use of unlicensed explosives as
one of the aggravating circumstances specified in Article The inapplicability of R.A. 8294 having been made
14 of the Revised Penal Code. Like the aggravating manifest, the crime committed is Murder committed “by
circumstance of “explosion” in paragraph 12, “evident means of explosion” in accordance with Article 248 (3) of
premeditation” in paragraph 13, or “treachery” in the Revised Penal Code. The same, having been alleged in
paragraph 16 of Article 14, the new aggravating the Information, may be properly considered as appellant
circumstance added by RA No. 8294 does not change the was sufficiently informed of the nature of the accusation
definition of murder in Article 248. against him.40

Nonetheless, even if favorable to the appellant, R.A. No. The trial court found appellant guilty of the complex crime
8294 still cannot be made applicable in this case. Before of murder with multiple attempted murder under Article 48
the use of unlawfully possessed explosives can be properly of the Revised Penal Code, which provides:
appreciated as an aggravating circumstance, it must be
adequately established that the possession was illegal or Art. 48. Penalty for complex crimes. – When a single act
unlawful, i.e., the accused is without the corresponding constitutes two or more grave or less grave felonies, or
authority or permit to possess. This follows the same when an offense is a necessary means of committing the
requisites in the prosecution of crimes involving illegal other, the penalty for the most serious crime shall be
possession of firearm35 which is a kindred or related imposed, the same to be applied in its maximum period.
offense under P.D. 1866, as amended. This proof does not
obtain in the present case. Not only was it not alleged in The underlying philosophy of complex crimes in the
the information, but no evidence was adduced by the Revised Penal Code, which follows the pro reo principle, is
prosecution to show that the possession by appellant of intended to favor the accused by imposing a single penalty
the explosive was unlawful. irrespective of the crimes committed. The rationale being,
that the accused who commits two crimes with single
It is worthy to note that the above requirement of illegality criminal impulse demonstrates lesser perversity than when
is borne out by the provisions of the law itself, in the crimes are committed by different acts and several
conjunction with the pertinent tenets of legal criminal resolutions.
hermeneutics.
The single act by appellant of detonating a hand grenade
A reading of the title36 of R.A. No. 8294 will show that the may quantitatively constitute a cluster of several separate
qualifier “illegal/unlawful ...possession” is followed by “of and distinct offenses, yet these component criminal
firearms, ammunition, or explosives or instruments...” offenses should be considered only as a single crime in law
Although the term ammunition is separated from on which a single penalty is imposed because the offender
“explosives” by the disjunctive word “or”, it does not mean was impelled by a “single criminal impulse” which shows
that “explosives” are no longer included in the items which his lesser degree of perversity.41
can be illegally/unlawfully possessed. In this context, the
disjunctive word “or” is not used to separate but to signify Under the aforecited article, when a single act constitutes
a succession or to conjoin the enumerated items two or more grave or less grave felonies the penalty for the
together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: most serious crime shall be imposed, the same to be
applied in its maximum period irrespective of the presence Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing,
of modifying circumstances, including the generic Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
aggravating circumstance of treachery in this case.42 Martinez, Corona, Carpio-Morales, Azcuna and Tinga, JJ.,
Applying the aforesaid provision of law, the maximum concur.
penalty for the most serious crime (murder) is death. The
trial court, therefore, correctly imposed the death penalty. Callejo, Sr., J., see concurring and dissenting opinion.

Three justices of the Court, however, continue to maintain


the unconstitutionality of R.A. 7659 insofar as it prescribes
the death penalty. Nevertheless, they submit to the ruling
of the majority to the effect that the law is constitutional
and that the death penalty can be lawfully imposed in the
case at bar.

Finally, the trial court awarded to the parents of the victim


Robert Agbanlog civil indemnity in the amount of
P50,000.00, P35,000.00 as compensatory damages and
P20,000.00 as moral damages. Pursuant to existing
jurisprudence43 the award of civil indemnity is proper.
However, the actual damages awarded to the heirs of
Robert Agbanlog should be modified, considering that the
prosecution was able to substantiate only the amount of
P18,000.00 as funeral expenses.44

The award of moral damages is appropriate there being


evidence to show emotional suffering on the part of the
heirs of the deceased, but the same must be increased to
P50,000.00 in accordance with prevailing judicial policy.45

With respect to the surviving victims Jaime Agbanlog,


Jimmy Wabe, Rey Camat and Gerry Bullanday, the trial
court awarded P30,000.00 each for the injuries they
sustained. We find this award inappropriate because they
were not able to present a single receipt to substantiate
their claims. Nonetheless, since it appears that they are
entitled to actual damages although the amount thereof
cannot be determined, they should be awarded temperate
damages of P25,000.00 each.46

WHEREFORE, in view of all the foregoing, the appealed


decision of the Regional Trial Court of San Jose City, Branch
39 in Criminal Case No. L-16(95) is AFFIRMED insofar as
appellant Antonio Comadre is convicted of the complex
crime of Murder with Multiple Attempted Murder and
sentenced to suffer the penalty of death. He is ordered to
pay the heirs of the victim the amount of P50,000.00 as
civil indemnity, P50,000.00 as moral damages and
P18,000.00 as actual damages and likewise ordered to pay
the surviving victims, Jaime Agbanlog, Jimmy Wabe, Rey
Camat and Gerry Bullanday, P25,000.00 each as temperate
damages for the injuries they sustained. Appellants
Gregorio Comadre and Danilo Lozano are ACQUITTED for
lack of evidence to establish conspiracy, and they are
hereby ordered immediately RELEASED from confinement
unless they are lawfully held in custody for another cause.
Costs de oficio.

In accordance with Section 25 of Republic Act 7659


amending Article 83 of the Revised Penal Code, upon
finality of this Decision, let the records of this case be
forwarded to the Office of the President for possible
exercise of pardoning power.

SO ORDERED.