VOL.

325, FEBRUARY 15, 2000 613

People vs. Castillo

*
G.R. Nos. 131592-93. February 15, 2000.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

JULIAN CASTILLO y LUMAYRO, accused-appellant.

Criminal Procedure; Appeals; An appeal in criminal cases

opens the entire case for review.—Prefatorily, we stress that
although the appellant himself does not refute the findings of the
trial court regarding the homicide aspect of the case, the Court
nevertheless made a thorough examination of the entire records of
the case, including the appellant’s conviction for homicide, based
on the settled principle that an appeal in criminal cases opens the
entire case for review. Our evaluation leads us to conclude that
the trial court’s ruling on the homicide aspect is clearly supported
by the records. Thus, we shall concentrate on the appellant’s lone
assignment of error with respect to his conviction for the crime of
illegal possession of firearm.
Criminal Law; Illegal Possession of Firearms; Aside from
lowering the penalty for the crime of illegal possession of firearms,
Republic Act 8294, which amended Presidential Decree 1866, also
provided that if homicide or murder is committed with the use of
an

________________

* EN BANC.

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614 SUPREME COURT REPORTS ANNOTATED

People vs. Castillo

unlicensed firearm, such use shall be considered as a special

aggravating circumstance.—P.D. 1866, which codified the laws on
illegal possession of firearms, was amended on June 6, 1997 by
Republic Act 8294. Aside from lowering the penalty for said crime,
R.A. 8294 also provided that if homicide or murder is committed
with the use of an unlicensed firearm, such use shall be considered
as a special aggravating circumstance. This amendment has two
(2) implications: first, the use of an unlicensed firearm in the
commission of homicide or murder shall not be treated as a
separate offense, but merely as a special aggravating
circumstance; second, as only a single crime (homicide or murder
with the aggravating circumstance of illegal possession of firearm)
is committed under the law, only one penalty shall be imposed on
the accused.
Same; Same; Homicide; Words and Phrases; The correct
denomination for the crime where homicide is committed with the
use of an unlicensed firearm is homicide, aggravated by illegal
possession of firearm, not illegal possession of firearm, aggravated
by homicide.—Prescinding therefrom, and considering that the
provisions of the amendatory law are favorable to herein
appellant, the new law should be retroactively applied in the case
at bar. It was thus error for the trial court to convict the appellant
of two (2) separate offenses, i.e., Homicide and Illegal Possession
of Firearms, and punish him separately for each crime. Based on
the facts of the case, the crime for which the appellant may be
charged is homicide, aggravated by illegal possession of firearm,
the correct denomination for the crime, and not illegal possession
of firearm, aggravated by homicide as ruled by the trial court, as
it is the former offense which aggravates the crime of homicide
under the amendatory law. Same; Same; Elements.—Two (2)
requisites are necessary to establish illegal possession of firearms:
first, the existence of the subject firearm, and second, the fact that
the accused who owned or possessed the gun did not have the
corresponding license or permit to carry it outside his residence.
The onus probandi of establishing these elements as alleged in
the Information lies with the prosecution.
Same; Same; Same; Evidence; Burden of Proof; If the means of
proving a negative fact is equally within the control of each party,
the burden of proof is on the party averring said negative fact; If
the nonexistence of some fact is a constituent element of the crime,
the onus is

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People vs. Castillo

upon the State to prove this negative allegation of non-existence.—

The first element—the existence of the firearm—was indubitably
established by the prosecution. Prosecution eyewitness Acaso saw
appellant shoot the victim thrice with a .38 caliber revolver.
Appellant himself admitted that he did not turn over the gun to
the security guards in the building after the shooting. The same
gun was recovered from the appellant and offered in evidence by
the prosecution. However, no proof was adduced by the
prosecution to establish the second element of the crime, i.e., that
the appellant was not licensed to possess the firearm. This
negative fact constitutes an essential element of the crime as
mere possession, by itself, is not an offense. The lack of a license
or permit should have been proved either by the testimony or
certification of a representative of the PNP Firearms and
Explosives Unit that the accused was not a licensee of the subject
firearm or that the type of firearm involved can be lawfully
possessed only by certain military personnel. Indeed, if the means
of proving a negative fact is equally within the control of each
party, the burden of proof is on the party averring said negative
fact. As the Information alleged that the appellant possessed an
unlicensed gun, the prosecution is duty-bound to prove this
allegation. It is the prosecution who has the burden of
establishing beyond reasonable doubt all the elements of the
crime charged, consistent with the basic principle that an accused
is presumed innocent until proven guilty. Thus, if the non-
existence of some fact is a constituent element of the crime, the
onus is upon the State to prove this negative allegation of non-
existence.
Same; Same; Same; Same; Admissions; Words and Phrases;
“Admission,” Explained; Even where the accused himself admitted
that he had no license for the gun recovered from his possession,
his admission will not relieve the prosecution of its duty to
establish beyond reasonable doubt the accused’s lack of license or
permit to possess the gun.—Hence, in the case at bar, although the
appellant himself admitted that he had no license for the gun
recovered from his possession, his admission will not relieve the
prosecution of its duty to establish beyond reasonable doubt the
appellant’s lack of license or permit to possess the gun. In People
vs. Solayao, we expounded on this doctrine, thus: “x x x (b)y its
very nature, an “admission is the mere acknowledgement of a fact
or of circumstances from which guilt may be inferred, tending to
incriminate the speaker, but not sufficient of itself to establish his
guilt.’ In other words, it is a ‘statement by defendant of fact or
facts pertinent to

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616 SUPREME COURT REPORTS ANNOTATED

People vs. Castillo

issues pending, in connection with proof of other facts or

circumstances, to prove guilt, but which is, of itself, insufficient to
authorize conviction.’ From the above principles, this Court can
infer that an admission in criminal cases is insufficient to prove
beyond doubt the commission of the crime charged. “Moreover,
said admission is extrajudicial in nature. As such, it does not fall
under Section 4 of Rule 129 of the Revised Rules of Court.

APPEAL from a decision of the Regional Trial Court of

Iloilo City, Br. 25.

The facts are stated in the opinion of the Court.

     The Solicitor General for plaintiff-appellee.
     Public Attorney’s Office for accused-appellant.

PUNO, J.:

With the passage of Republic Act No. 8294 on June 6, 1997,

the use of an unlicensed firearm in murder or homicide is
now considered, not as a separate crime, but merely a
special aggravating circumstance.
In the case at bar, appellant JULIAN CASTILLO y
LUMAYRO was charged with Murder and Illegal
Possession of Firearms in two (2) separate Informations,
thus:

Criminal Case No. 45708:

“That on or about the 14th day of November, 1995 in the City of

Iloilo, Philippines and within the jurisdiction of this Court, armed
with a handgun, with deliberate intent and without justifiable
motive, with evident premeditation, by means of treachery and
with a decided purpose to kill, did then and there wilfully,
unlawfully and criminally shoot, hit and wound Rogelio Abawag
with the said gun, with which herein accused was then provided
at the time, thereby causing upon said Rogelio Abawag bullet
wounds on vital parts of his body, which caused his instantaneous
death. 1
“CONTRARY TO LAW.”

_______________

1 Rollo, p. 1.

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VOL. 325, FEBRUARY 15, 2000 617

People vs. Castillo

Criminal Case No. 45709:

“That on or about the 14th day of November, 1995 in the City

of Iloilo, Philippines and within the jurisdiction of this Court, said
accused, with deliberate intent and without justifiable motive,
have in his possession and control one (1) Homemade .38 caliber
revolver without serial number (and) three (3) live ammunitions
without the authority and permit
2
to possess or carry the same.
“CONTRARY TO LAW.”
The scene of the crime was the then on-going construction
site of Gaisano Building in Lapaz, Iloilo City. On November
14, 1995, at about 8 a.m., ROBERTO LUSTICA, a
construction worker, was on the last rung of the stairs on
the third floor of the Gaisano building when he saw his co-
worker ROGELIO ABAWAG being closely pursued by
accused JULIAN CASTILLO, a lead man in the same
construction site. During the chase, the accused pointed a
gun at Abawag and shot him. Abawag, then about a half
meter away from3 the accused, fell on his knees beside a pile
of hollow blocks.
FRANKLIN ACASO, a mason working on the third floor
of the Gaisano building, heard the first shot. Initially, he
did not pay attention to it as he thought that the sound
came from one of their construction equipments. Seconds
later, he heard a second shot and a person screaming:
“Ouch, that is enough!” When he looked towards the
direction of the sound, he saw the accused in front of
Abawag, about a meter away, pointing a .38 caliber
revolver at the latter. Abawag was then leaning on a pile of
hollow blocks, pleading for mercy. The accused shot
Abawag a third time despite the latter’s 4imploration. The
accused then fled, leaving Abawag lifeless.
The management of Gaisano reported the shooting
incident to the police authorities who immediately rushed
to the scene of the crime. JUN LIM, alias “Akoy” brother-
in-law of the victim and also a construction worker at the
Gaisano, volun-

______________

2 Original Records, p. 1.
3 July 31, 1996 TSN, pp. 2-4, 10.
4 July 24, 1996 TSN, pp. 3-11.

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618 SUPREME COURT REPORTS ANNOTATED

People vs. Castillo

teered to go with the police and assist them in locating the

accused.
The police, accompanied by Akoy, proceeded to Port San
Pedro where they saw the accused on board a vessel bound
for Cebu. When they boarded the vessel, Akoy positively
identified the accused to the police as the assailant. The
accused attempted to escape when the police identified
themselves but the police caught up with him. Upon
inquiry, the accused denied complicity in the killing of
Abawag. The police found in his possession a .38 caliber
handmade revolver, three (3) empty shells and three (3)
live ammunitions. Further inquiry revealed that the
accused owned the gun but had no license to possess it. The
police then took the accused into custody and charged him
for the 5murder of Abawag and for illegal possession of
firearm.
The self-defense theory hoisted by the accused who
testified solely for the defense was not given credence by
the trial court. Thus, he was convicted of Homicide, as the
prosecution failed to prove the alleged qualifying
circumstances of evident premeditation and treachery, and
of Illegal Possession of Firearm, aggravated by homicide.
The trial court disposed as follows:

“WHEREFORE, premises considered and finding the accused

guilty of the crimes of homicide and illegal possession of firearm
aggravated by homicide beyond the shadow of the doubt, he is
hereby sentenced as follows:

“1) For the crime of homicide, he is sentenced to an

indeterminate penalty of imprisonment of Twelve (12)
years of prision mayor, as minimum, to Seventeen (17)
years and Four (4) months of reclusion temporal, as
maximum;
“2) For illegal possession of firearm which is aggravated by
homicide, he is sentenced to a penalty of death;
“3) To pay the family of his victim P50,000.00 as indemnity
and another P50,000.00 as moral damages; and
“4) To pay the cost.

________________

5 May 22, 1996 TSN, pp. 8-22; July 3, 1996 TSN, pp. 3-9.

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People vs. Castillo
6
“SO ORDERED.” (emphasis supplied)

On automatic review by this Court, appellant impugns

solely his conviction for illegal possession of firearm for
which he was sentenced to the supreme penalty of death.
Prefatorily, we stress that although the appellant
himself does not refute the findings of the trial court
regarding the homicide aspect of the case, the Court
nevertheless made a thorough examination of the entire
records of the case, including the appellant’s conviction for
homicide, based on the settled principle that an appeal in
criminal cases opens the entire case for review. Our
evaluation leads us to conclude that the trial court’s ruling
on the homicide aspect is clearly supported by the records.
Thus, we shall concentrate on the appellant’s lone
assignment of error with respect to his conviction for the
crime of illegal possession of firearm.
P.D. 1866, which codified the laws on illegal possession
of firearms, was amended on June 6, 1997 by Republic Act
8294. Aside from lowering the penalty for said crime, R.A.
8294 also provided that if homicide or murder is committed
with the use of an unlicensed firearm, such use shall 7
be
considered as a special aggravating circumstance. This
amendment has two (2) implications: first, the use of an
unlicensed firearm in the commission of homicide or
murder shall not be treated as a separate offense, but
merely as a special aggravating circumstance; second, as
only a single crime (homicide or murder with the
aggravating circumstance of illegal possession of firearm) is
committed under the 8 law, only one penalty shall be
imposed on the accused.
Prescinding therefrom, and considering that the
provisions of the amendatory law are favorable to herein
appellant, the new9
law should be retroactively applied in
the case at bar. It was thus error for the trial court to
convict the appellant of

________________

6 Decision, dated February 25, 1997; Rollo, pp. 15-22.

7 Section 1, par. 3.
8 People vs. Molina, 292 SCRA 742, 779-783 (1998).
9 Article 22, Revised Penal Code.

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620 SUPREME COURT REPORTS ANNOTATED

People vs. Castillo

two (2) separate offenses, i.e., Homicide and Illegal

Possession of Firearms, and punish him separately for each
crime. Based on the facts of the case, the crime for which
the appellant may be charged is homicide, aggravated by
illegal possession of firearm, the correct denomination for
the crime, and not illegal possession of firearm, aggravated
by homicide as ruled by the trial court, as it is the former
offense which aggravates the crime of homicide under the
amendatory law.
The appellant anchors his present appeal on the
assertion that his conviction was unwarranted as no proof
was adduced by the prosecution that he was not licensed to
possess the subject firearm. In their Manifestation and
Motion in lieu of Appellee’s Brief,
10
the Solicitor General
joined cause with the appellant.
We agree.
 Two (2) requisites are necessary to establish illegal
possession of firearms: first, the existence of the subject
firearm, and second, the fact that the accused who owned
or possessed the gun did not have the corresponding license
or permit to carry it outside his residence. The onus
probandi of establishing these elements 11
as alleged in the
Information lies with the prosecution.
The first element—the existence of the firearm—was
indubitably established by the prosecution. Prosecution
eyewitness Acaso saw appellant12
shoot the victim thrice
with a .38 caliber revolver. Appellant himself admitted
that he did not turn over the gun to 13
the security guards in
the building after the shooting. The same gun was
recovered from the appellant and offered in evidence by the
prosecution. However, no proof was adduced by the
prosecution to establish the second element of the crime,
i.e., that the appellant was not licensed to

_______________

10 Rollo, pp. 71-85.

11 People vs. Eubra, 274 SCRA 180 (1997); People vs. Villanueva, 275
SCRA 489 (1997); People vs. Mallari, 265 SCRA 456 (1996); People vs.
Tiozon, 198 SCRA 368 (1991).
12 July 24, 1996 TSN, at p. 6.
13 October 16, 1996 TSN, p. 15.

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VOL. 325, FEBRUARY 15, 2000 621

People vs. Castillo

possess the firearm. This negative fact constitutes an

essential element of the crime as mere possession, by itself,
is not an offense. The lack of a license or permit should
have been proved either by the testimony or certification of
a representative of the PNP Firearms and Explosives Unit 14
that the accused was not a licensee of the subject firearm
or that the type of firearm involved can 15be lawfully
possessed only by certain military personnel. Indeed, if
the means of proving a negative fact is equally within the
control of each party, the burden of proof is on the party
averring said negative fact. As the Information alleged that
the appellant possessed an unlicensed gun, the prosecution
is duty-bound to prove this allegation. It is the prosecution
who has the burden of establishing beyond reasonable
doubt all the elements of the crime charged, consistent
with the basic principle that 16
an accused is presumed
innocent until proven guilty. Thus, if the nonexistence of
some fact is a constituent element of the crime, the onus is
upon the 17State to prove this negative allegation of non-
existence.
Hence, in the case at bar, although the appellant himself
admitted that he had no license for the gun recovered from
his possession, his admission will not relieve the prosecution
of its duty to establish beyond reasonable doubt the
appellant’s lack of 18license or permit to possess the gun. In
People vs. Solayao we expounded on this doctrine, thus:

“x x x (b)y its very nature, an ‘admission is the mere

acknowledgement of a fact or of circumstances from which guilt
may be inferred, tending to incriminate the speaker, but not
sufficient of itself to establish his guilt.’ In other words, it is a
‘statement by defendant of fact or facts pertinent to issues
pending, in connection with proof of other facts or circumstances,
to prove guilt, but which is, of itself, insufficient to authorize
conviction.’ From the above

________________

14 People vs. Villanueva, supra.

15 People vs. Mesal, 244 SCRA 166 (1995).
16 29 Am. Jur., 2d, pp. 180-181.
17 Underhill’s Criminal Evidence, 4th edition, p. 70.
18 262 SCRA 255 (1996).

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622 SUPREME COURT REPORTS ANNOTATED

People vs. Castillo

principles, this Court can infer that an admission in criminal

cases is insufficient to prove beyond doubt the commission of the
crime charged.
“Moreover, said admission is extrajudicial in nature. As such,
it does not fall under Section 4 of Rule 129 of the Revised Rules of
Court which states:

‘An admission, verbal or written, made by a party in the course of the

trial or other proceedings in the same case does not require proof’

“Not being a judicial admission, said statement by accused-

appellant does not prove beyond reasonable doubt the second
element of illegal possession of firearm. It does not even establish
a prima facie case. It merely bolsters the case for the prosecution
but does not stand as proof of the fact of absence or lack of a
license.” (emphasis supplied)

Additionally, as pointed out by both the appellant and the

Solicitor General, the extrajudicial admission was made
without the benefit of counsel. Thus, we hold that the
appellant may only be held liable for the crime of simple
homicide under Article 249 of the Revised Penal Code.
 We come now to the penalty. The19 crime of homicide is
penalized by reclusion temporal. There being no
aggravating or mitigating circumstance attendant to the
commission of the crime, the penalty of reclusion temporal
shall be imposed in its medium period, i.e., from fourteen
(14) years, eight (8) months and one (1) day to seventeen
(17) years and four (4) months. Applying the Indeterminate
Sentence Law, the imposable penalty shall be within the
range of prision mayor, i.e., from six (6) years and one (1)
day to twelve (12) years, as minimum, to reclusion temporal
in its medium period of from fourteen (14) years, eight (8)
months and one (1) day to seventeen (17) years and four (4)
months, as maximum.
IN VIEW OF THE FOREGOING, the assailed Decision
is MODIFIED. Appellant Julian Castillo y Lumayro is
found guilty of Homicide. He is sentenced to imprisonment
of from

________________

19 Article 249, Revised Penal Code.

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VOL. 325, FEBRUARY 15, 2000 623

People vs. Castillo

nine (9) years and four (4) months of prision mayor as

minimum to sixteen (16) years, five (5) months and nine (9)
days of reclusion temporal as maximum. However, the civil
indemnity and moral damages awarded by the trial court
to the heirs of the victim in the total amount of one
hundred thousand (P100,000.00) pesos are affirmed.
SO ORDERED.

     Davide, Jr. (C.J.), Bellosillo, Melo, Vitug, Kapunan,

Mendoza, Panganiban, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr.,
JJ., concur.

Judgment modified.

Notes.—In crimes involving illegal possession of

firearm, the prosecution has the burden of proving the
elements thereof, viz.: (a) the existence of the subject
firearm and (b) the fact that the accused who owned or
possessed it does not have the corresponding license or
permit to possess the same, a negative fact which
constitutes an essential ingredient of the offense which the
prosecution has the duty not only to allege but also to prove
beyond reasonable doubt. (Mallari vs. Court of Appeals, 265
SCRA 456 [19961)
 An appeal in a criminal case throws the whole case open
to review, and it becomes the duty of the appellate court to
correct such errors as may be found in the judgment
appealed from whether they are made the subject of
assignments of error or not. (Tabuena vs. Sandiganbayan,
268 SCRA 332 [1997])
Consistent with the doctrine that an appeal in a
criminal case throws the whole case open for review, the
appellate court may, applying the new law (Republic Act
No. 8294), additionally impose a fine, which if unpaid, will
subject the convict to subsidiary imprisonment, pursuant to
Article 39 of the Revised Penal Code. (Gonzales vs. Court of
Appeals, 277 SCRA 518 [1997])

——o0o——

624

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