FOR SPECIAL PENAL LAWS CASES

CASE NO. 1- PEOPLE VS NAVARRO [G.R. Nos. 132696-97. February 12, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMON NAVARRO, accused-appellant. DECISION KAPUNAN, J.: Ramon Navarro (accused-appellant) appeals his conviction for the crime of Murder with the Use of an Unlicensed Firearm for which he was sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim the amount of P100,000.00 as damages by the Regional Trial Court, Branch 54, Alaminos, Pangasinan. Two (2) separate Informations were filed against accused-appellant for Murder (Criminal Case No. 3082-A) and Aggravated Illegal Possession of Firearm and Ammunitions (Criminal Case No. 3083A). The Information for murder reads: That on or about August 28, 1987, in the evening, along the highway in Palamis, municipality of Alaminos, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, taking advantage of nighttime and superior strength, did then and there wilfully, unlawfully and feloniously shoot Romeo Calizar with a handgun which cause [sic] his untimely death as a consequence, to the damage and prejudice of his heirs. CONTRARY to Art. 248 of the Revised Penal Code.
[1]

The Information for aggravated illegal possession of firearm and ammunitions reads: That on or about August 28, 1987, in the evening along the highway in Palamis, municipality of Alaminos, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did there and then willfully, unlawfully and feloniously have in his possession, control and custody a handgun without first securing the necessary license or permit to possesses [sic] the same and the said handgun was used in shooting to death Romeo Calizar. CONTRARY to Sec. 1 of Presidential Decree No. 1866.
[2]

Accused-appellant was not allowed to post bail. At his arraignment, accused-appellant pleaded not guilty to both charges. Thereafter, a joint trial of the two cases ensued. The case for the prosecution was based mainly on the testimony of Bob Regaspi. He testified that on 28 August 1987, at 9:00 in the evening, he was driving a tricycle on his way home. He noticed that he was following an owner-type jeep. The tricycle was about several meters behind the jeep. Both vehicles were going towards the south. Before they reached Bugtong Bridge, the jeep suddenly stopped. Regaspi had to stop the tricycle behind the jeep because there were several vehicles on the other lane coming from the opposite direction. Regaspi then saw accused-appellant got off from the right side of the jeep. Accused-appellant was carrying a .45 caliber gun. Regaspi also saw accused-appellant pull out a person from the jeep. Accused-appellant kicked said person and then shot him three (3) [3] times. The victim was Romeo Calizar.

According to Regaspi, he was able to identify accused-appellant as the assailant even if the killing happened at night because there was sufficient illumination from the light of the jeep as well as the lights of the other vehicles passing at the time. After he witnessed the incident, Regaspi proceeded to his home. He did not report the crime to the police as he was afraid of accused-appellant. He said that there [4] were rumors that accused-appellant was a killer. Fearing for his life, Regaspi relocated to Manila and lived there for three (3) years. Before he left, however, he already told the victims wife, Demetria, that it was accused -appellant who killed her husband. He returned to Pangasinan only in 1990 and resided at his mothers residence in Bolaney, Alaminos, Pangasinan. He also briefly stayed at his grandfathers house in Barangay Balingasay, [5] Bolinao. The prosecution also presented as its witnesses Demetria Calizar, Dr. Maria Victoria Orfinada, PO3 Delfin Estabilla Flores and SPO3 Romeo De Guzman. Demetria Calizar, wife of the victim, testified that she was in Bolinao, Pangasinan, when she learned that her husband was killed. It was her sister, Carmen Conde, who broke the news to her. Demetria just gave birth at the time. Upon hearing about her husbands death, she immediately went to the funeral parlor and attended to the burial preparations. She spent about ten thousand pesos for the wake and burial of her husband. At the time of his death, the victim was earning three hundred pesos a day as an itinerant empty bottle buyer. He was forty two (42) years old. The victim left behind five (5) children with Demetria. Finally, Demetria confirmed that Bob Regaspi told her that it was accused-appellant who shot [6] her husband. Dr. Maria Victoria Orfinada, Municipal Health Officer of Alaminos, Pangasinan, identified the [7] Certificate of Death issued in connection with the death of Romeo Calizar. The certificate showed that the cause of death was severe hemorrhage due to multiple gunshot wounds on the different parts of the [8] [9] body. The certificate was issued by Dr. Manuel Navarro, the Municipal Health Officer at the time. Unfortunately, Dr. Navarro could no longer testify because he already died. PO3 Delfin Estabillo Flores testified that he was on duty at the Philippine National Police (PNP) Alaminos Police Station on 29 August 1987. Around 6:00 in the morning of said date, Flores received a call to respond to an alleged shooting incident that occurred at Barangay Palamis, Alaminos, Pangasinan. Together with the other policemen on duty, Flores immediately proceeded to the said place to investigate. When they arrived at the crime scene, they saw a man lying face down on the right side of the road going to Mabini. The said person, later identified to be Romeo Calizar, was already dead. They [10] recovered two (2) empty shells and two (2) slugs of a .45 caliber gun near the body. SPO3 Romeo De Guzman testified that he works in the Firearms and Explosives Office of the PNP Camp Crame and that based on their records, accused-appellant is not licensed or authorized to possess [11] or carry a firearm. For its part, the defense presented the following witnesses: Mayor Leon Rivera, Rodolfo R. Aquino, PO3 Marciano Bacani, Rogelio Banogon, Leonora Arboleda and Danilo Malapit. Accused-appellant opted not to testify on his behalf. Leon Rivera testified that during his incumbency as Mayor of Alaminos, he was not aware of any criminal case having been filed against accused-appellant. He admitted on cross-examination, however, that the people of Alaminos once held a big rally against the alleged illegal activities, e.g., killings, robberies and jueteng, of the notorious Aguila Gang. Accused-appellant was widely believed to be the [12] leader of said gang. Rodolfo Aquino is a retired provincial prosecutor of Alaminos. He testified that during his stint as assistant provincial prosecutor and subsequently provincial prosecutor from 1983 up to 1990, he never [13] came across any criminal charge against accused-appellant apart from the present case. PO3 Marciano Bacani, member of the PNP of Alaminos, was presented to show that there was no mention of accused-appellant in the police blotter for 30 August 1987. Entry No. 4978 on said date stated that the body of Romeo Calizar was found lying face down at the edge of the road in Barangay Palamis. He sustained multiple gunshot wounds. Two (2) empty shells and two (2) slugs of .45 caliber [14] gun were found near his body.

In his direct testimony, Rogelio Banogon claimed that on 28 August 1987 at about 9:00 in the evening, he was riding a tricycle going to the town from Bolaney. He was on his way to buy medicine for his son who was then having a stomachache. When the tricycle was near the Bugtong Bridge, he heard a gunshot. The driver immediately stopped his tricycle. Banogon alighted from the tricycle and switched on his flashlight. He saw Bob Regaspi, the witness for the prosecution, holding a .45 caliber gun. Banogon said he also saw a man lying down but that he did not see his face. Banogon asked Regaspi what happened and the latter allegedly said he shot the victim because he had sexual intercourse with all his (Regaspis) aunties. Banogon did not report the matter to the police but [15] proceeded to the town to buy the medicine for his son. Leonor Arboleda testified that some time on 9 May 1987, the victim, Romeo Calizar, was having a drinking spree with her (Arboledas) husband and two other companions at their (Leonor and Teddy Arboleda's) house. Demetria, wife of the victim, suddenly arrived and started to quarrel with her husband [16] over money matters. After their argument, Demetria allegedly uttered ipapatay kita to the victim. Danilo Malapit stated that the victim worked in the junk shop owned by his (Danilos) father. Calizar bought empty bottles and delivered them to the junk shop. On 28 August 1987, Danilo saw the victim leave the junk shop at around 8:00 in the evening. The victim left in a tricycle driven by his [17] companion. The following morning, Danilo heard about the news of the victims death. After consideration of the evidence adduced by the prosecution and defense, the trial court rendered judgment convicting accused-appellant for the crime of murder with the use of unlicensed firearm and sentencing him to suffer the penalty of reclusion perpetua. The dispositive portion of the decision reads: WHEREFORE, in consideration of the foregoing premises, the accused is declared GUILTY beyond reasonable doubt of the crime of Murder with the use of unlicensed firearm and Criminal Case No. 3083A is considered a mere aggravating circumstance of the crime of Murder, together with the aggravating circumstance of treachery and nighttime. Accused is sentenced by reason hereof to suffer the single indivisible penalty of reclusion perpetua and to indemnify the heirs of the victim in the amount of P100,000.00. Considering the recent events at the Provincial Jail in Lingayen, Pangasinan, where a week ago from this date of judgment, there five detention prisoners who escaped detention and considering the state of security and even the conditions at the Provincial Jail in Lingayen, Pangasinan, this Court orders immediately the National Bureau of Investigation represented by Head Agent, Atty. Teofilo Galang, and/or his agents to bring the living body of the accused immediately today, upon receipt of this Decision, to the National Penitentiary at Muntinlupa to serve his sentence, subject to the automatic and requisite review of this Decision by the highest court of the land. IT IS SO ORDERED.
[18]

Accused-appellant accordingly filed his notice of appeal. alleging the following: ASSIGNMENT OF ERRORS First Assignment of Error

[19]

Thereafter, he filed his appellants brief

The Trial Court committed a reversible error in convicting the accused-appellant upon an uncorroborated and incredible testimony proceeding from the mouth of an equally incredible witness; Second Assignment of Error The Trial Court committed grave and reversible error when in order to bolster its unjustified judgment of conviction of the accused-appellant in the above-entitled case, cavalierly and without legal bases took judicial notice of unproved, extraneous and doubtful facts and circumstances, in violation of jurisprudence x x x;

Third Assignment of Error The Trial Court committed reversible error in not taking into consideration the substantial albeit circumstantial evidence testified to by the witnesses for the defense that point to a conspiracy among the alleged lone eye witness Bob Regaspi with his blood aunt, the widow Demetria Calizar as the authors [20] and perpetrators of the murder of Romeo Calizar. The appeal must fail. Accused-appellant impugns the credibility of the prosecution eyewitness, Bob Regaspi, alleging that his testimony was marred by inconsistencies. Accused-appellant points to, among others, the following alleged inconsistencies: 1. On direct-examination, Regaspi stated that he is a resident of Brgy. Bolaney, Alaminos, Pangasinan. However, on cross-examination, he mentioned that he is a resident of Brgy. Balingasay, Alaminos, Pangasinan; 2. Regaspi denied that he is a relative of Demetria Calizar, the wife of the victim. In her testimony, however, Demeteria admitted that Regaspi is her nephew as he is the son of her older sister, Monica Clave; 3. Regaspi claimed that he was driving a tricycle on the night of 28 August 1987 when he witnessed the slaying of Romeo Calizar. He admitted, however, that he did not possess any license to drive said vehicle. Further, while he (Regaspi) claimed that he merely borrowed the tricycle he was then driving, he could not give the name of the owner thereof; 4. Regaspi testified that he saw accused-appellant shoot Romeo Calizar three (3) times. However, [21] there were only two (2) slugs and two (2) empty shells found near the body of Romeo Calizar. The Court finds nothing unusual about the fact that Regaspi stated two different addresses as his residence. As explained by him, after he came back from Manila, he resided in Brgy. Bolaney. However, there was also a time when he briefly resided with his grandfather in Brgy. Balingasay. Also, the fact that he is a relative of the victims widow does not detract from Regaspis credibility as a witness. The weight of testimony of a witness is not impaired or in any way affected by his relationship to the victim when [22] there is no showing of improper motive on the part of the witness. Likewise, Regaspis admission that he did not have a drivers license does not negate the fact that he was driving a tricycle at the time when he witnessed accused-appellant gun down Calizar. Indeed, a person can still drive a vehicle even without possessing the necessary license albeit violating the traffic rules. Finally, whether there were two or three gunshots is immaterial. The certificate of death stated that Romeo Calizar died of multiple gunshot wounds. In any case, to the mind of the Court, these inconsistencies enumerated by accused-appellant do not make the testimony of Regaspi unworthy of credence. As found by the trial court, Regaspis testimony was straightforward and candid. He testified thus: Q A Q A Q A Q A How long have you known Romeo Calizar? It is a long time, sir. Mr. Witness, is Romeo Calizar still alive, if you know? He is already dead, sir. Do you know how he died? Yes, sir. I know, sir. How did he die? He was shot, sir.

Q A Q A Q A Q A

Do you know who shot Romeo Calizar? I know, sir. Who shot Romeo Calizar? It was Ramon Navarro, sir. If Ramon Navarro is inside the court room, will you be able to recognize him, identify him and point to him? Yes, sir. Will you please point on the accused, Ramon Navarro? (Witness pointing at the accused who was wearing a blue pants and shirt and with sunglasses and when asked his name answered Ramon Navarro).

COURT: Where? The accused with sun-glasses? PROS. USON: Yes, your Honor. Q A Q A Q A Q A Q A Q A Q Why do you say that it was Ramon Navarro who shot Romeo Calizar? I saw him with my two eyes, sir. Where did Ramon Navarro shoot Romeo Calizar? In Palamis, sir. Palamis. What town is that? Alaminos, Pangasinan, sir. When did Ramon Navarro shoot Romeo Calizar at Palamis, Alaminos, Pangasinan? August 28, 1987, sir. What time, more or less, if you know, did you see Ramon Navarro shot Romeo Calizar? At 9:00 oclock, sir. 9:00 oclock, in the morning or evening? In the evening, sir. Now, Mr. Witness, you said that you saw Ramon Navarro shoot Romeo Calizar along Palamis, Alaminos, Pangasinan on August 28, 1987 at around the hour of 9:00 o clock in the evening. Let us go back to that day and time. Where were you when you saw Ramon Navarro shoot Romeo Calisar? I was near them, sir. What were you doing when you were near them? I was riding on a tricycle, sir. Were you a passenger or a driver of that tricycle? I was the driver, sir. How about Ramon Navarro, where was he in relation to you? He went down from the vehicle that they were riding on, sir. He went down from what kind of, may I withdraw that, your Honor. You said he went down. Are you saying he was also riding a vehicle?

A Q A Q A Q A Q

A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q

Yes, sir. What was he riding before he went down? An owner-jeep, sir. Where was the owner-jeep heading when you saw Ramon Navarro get down? It was facing south, sir. When you said that the jeep was facing south, how about you and your tricycle, where were you also facing? It was also facing the south, sir. How far were you and your tricycle from the jeep that was being ridden by Ramon Navarro? About three (3) meters, sir. So you were following the jeep going south? Yes, sir. I was following the jeep. You said a while ago, you saw Ramon Navarro get down from the jeep. Was the jeep still running when he got down or was it stopped? It was stopped, sir. How about you? When the jeep stopped, what did you do while you were following them? I also stopped my tricycle, sir. When you stopped your tricycle, you saw Ramon Navarro get down from the jeep? Yes, sir. What part of the jeep did he get off? In the right side, sir. When you saw Ramon Navarro, may I withdraw. Will you describe the appearance of Mr. Navarro when you saw him get down from the right side of the jeep?

A Q A Q A Q A Q A Q A Q

He was carrying a gun, sir. By what means was he carrying the gun? He was holding it with his right hand, sir. After you saw Ramon Navarro get down from the jeep with a gun on his right hand, what next did you see happen? He pulled out a person from the jeep, sir. What happened to the person that he pulled out from the jeep? He kicked the person, sir. After Ramon Navarro kicked the person, what next did Ramon Navarro do? He shot him three (3) times, sir. What happened to the person whom you saw Ramon Navarro shoot three times? When he kicked the person, the person fell down on the ground and he shot him three times, sir. Mr. Witness, how were you able to see Mr. Ramon Navarro kicked the person and shot him three times when it was around 9:00 oclock in the evening?

A Q A Q A Q A Q A Q A Q A Q A Q

The light of their jeep was on, sir, and the light of my tricycle was also on and also the light of the jeep coming from the opposite direction. What kind of gun was used by Ramon Navarro that you saw in shooting the person he pulled out from the jeep? It was short gun, sir, a 45. A short gun, 45. Are you familiar with 45 caliber guns? I know, sir, because I used to see that kind of gun. Now, Mr. Witness, you saw that the gun used was short and according to you, it was a 45 caliber. Will you describe the gun used, let us say the color? It was shiny, sir. How could you say it was shiny when it was n ighttime at around 9:00 oclock? It was illuminated, sir. And what illuminated the gun to make you so sure that it was a 45 caliber? It was illuminated by the light of my tricycle, sir. By the way, Mr. Witness, who was that person whom you saw pulled out from the jeep by Ramon Navarro, kicked him and then shot him three times with a 45 caliber pistol? It was Romeo Calisar, sir. After you saw Ramon Navarro pulled out Calizar out of the jeep, kicked him and shot him three times with a 45 caliber pistol, what next did you do? I drove the tricycle and went home, sir. Mr. Witness, did you come to know later on whatever happened to Romeo Calizar as a result of his being shot three times with a 45 caliber pistol by Ramon Navarro?

ATTY MONTEMAYOR: I think that is already answered in the beginning, your Honor. It was already there. PROS. USON: Killed. COURT: Yes, already answered. ATTY. MONTEMAYOR: Yes, your Honor, he knows what happened to him. COURT: Objection sustained. PROS. USON: Q A So, you went home after you witnessed the incident. Did you not report to the Police station of Alaminos, Pangasinan what you saw? No, sir, because there were rumors that he was a killer.
[23]

The inconsistencies pointed out by accused-appellant refer merely to inconsequential details and not to the crux of the case that Regaspi actually saw accused-appellant gun down Calizar. Well-settled is the rule that inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the [24] credibility of witnesses for they erase the suspicion of rehearsed testimony.

Accused-appellant likewise attempts to discredit Regaspi by faulting him for not reporting the crime immediately to the authorities. Regaspi admitted that he fled to Manila after witnessing the incident and returned to Alaminos, Pangasinan in 1990. He disclosed to the police what he knew about the killing only in 1995. The fact that it took Regaspi and the wife of the victim, Demetria, almost eight (8) years before they filed a criminal complaint against accused-appellant cannot be taken against them. Their initial reluctance to implicate accused-appellant is undoubtedly borne out of fear given the latters reputation in the community. As found by the trial court: From the time that the incident occurred on or about August 28, 1987, it took the widow and her witness eight years more or less before a complaint was filed for Murder against the accused (Pages 3-7, Records). The delay was understandable because of fear of Ramon Navarro, the alleged leader of the Aguila Gang. This Court takes judicial cognizance of the fact that Alaminos, Pangasinan was held tightly gripped by the criminal elements and its citizenry cowered in fear, of their lives being endangered and wasted. Hence, literally speaking, the citizens in one occasion in 1995 stood up as one to denounce the Aguila Gang. In that rally referred to, to seek an assurance from the authorities for justice and protection and for the attainment of a just and lasting peace and order, the government authorities, with equal vigor and zeal, responded to the numerous cases filed against the accused of crimes dating back to the year 1987. Many witnesses and offended parties came up by then, encouraged by their belief that their governments commitment for their protection from the lawless element has been revitalized by the entire citizenry, who were awakened and rose up as one to prevent further destruction of lives and for the protection of the interest of humanity. This judicial notice adopted by the Court finds its support in the testimony of one of the witnesses for the defense, in the person of the Honorable Mayor of Alaminos, Pangasinan, Leon M. Rivera, Jr. Mayor Rivera, Jr. testified that he became mayor of the municipality of Alaminos from 1973 continuously up to the present; that he knows Ramon Navarro, the accused in these cases; that there was a rally of Alaminos residents against accused Ramon Navarro (TSN, January 31, 1997, Page 6) with a very big participation from the residents of the municipality; that the accused is the leader of the Aguila Gang and the rally that was conducted in 1995 by the citizens of Alaminos is precisely centered on the alleged illegal activities of the Aguila Gang, with respect to unsolved killings, robberies and proliferation of jueteng [25] attributed to the leadership of the accused (TSN, Page 7, supra). Accused-appellant opines that it was highly unlikely for accused-appellant to have committed the crime considering that, as testified to by Regaspi, there were numerous vehicles passing by the place and there was sufficient illumination from these cars. Accused-appellant posits that it is totally and absolutely unbelievable that any man who is not a total fool or mentally deranged could still proceed and commit such grievous and brutal act of murder knowing that all his actions can be seen clearly under the [26] full glare of the lights of numerous oncoming vehicles. This argument is untenable. That accusedappellant killed Romeo Calizar under the circumstances testified to by Regaspi is not incredible. Criminal offenders have been known to execute their evil designs in such audacious and brazen manner. Indeed, [27] crimes are now committed in the most unexpected places and in brazen disregard of authorities. In the second assignment of error, accused-appellant contends that the trial court based its judgment of conviction upon unproved, extraneous and doubtful facts and circumstances. Accused-appellant particularly refers to the judicial cognizance taken by the trial court regarding accused-appellants notoriety. As a backgrounder, the trial court quoted in its decision the August 1995 PNP RECOM I BULLETIN thus: As a backgrounder and by way of judicial notice, the Court quotes the August 1995 PNP RECOM I BULLETIN, in Pages 32-33 of the Special Report, in order to give a sufficient background on who the accused is in these cases: Alaminos, a bustling seaside town of Pangasinan which had been silent witness for seven years to a series of salvages (summary killings) attributed to a self-styled group of vigilantes who had become notorious and untouchable, could now be said to be enjoying once again the serene atmosphere it used to experience in years of yore.

This is so because the leader of the vigilante group, tagged as Aguila Gang for the eagle tattoo sported by its members, had already been arrested by joint elements of the Alaminos police station and 1st provincial mobile force company of the Pangasinan PNP provincial command, with the assistance of the intelligence group from the Ilocos PNP regional command. With the arrest of gang leader Ramon Navarro y Escobar, second most wanted person in Region I, the Aguila Gang, reportedly composed of eight to ten armed members and believed to be behind the violent death of at least 28 persons since it was organized sometime in 1986 until October in 1993, is now said to be neutralized. BIRTH OF AGUILA The execution, mostly of suspected criminals started late 1986 when then Lt. Marlou C. Chan, then the municipal police chief, organized a vigilante group to go after cattle rustlers, thieves and drug pushers. At the core of the group, according to the testimony of Reniedo to the NBI, were he, Navarro, the slain Bito and two others who are still being tracked down by police and military intelligence agents. Navarro was a former military informer. In the beginning, the people tend to approve of their activities, especially after s eeing known criminals being killed one after another, said Dr. Pedro Braganza in an interview with the Philippine Daily Inquirer. OPERATION: MARIA KAPRA Including the charges filed by the NBI, Navarro was charged for nine counts of criminal cases, ranging from rape, murder and illegal possession of firearms, before the regional trial court in Alaminos. This [28] placed him as the second most wanted person in Region I with a recommended reward of P100,000. Contrary to accused-appellants contention, the foregoing backgrounder or judicial notice taken by the trial court was not the basis for his conviction. Rather, accused-appellants conviction was based on the strength of the prosecution's evidence against him. It must be underscored that accused-appellant was positively identified by Regaspi as the person who shot Romeo Calizar on that fateful day of 28 August 1987. The defense tried to discredit Regaspi by imputing to him the crime. Rogelio [29] [30] Banogon and Leonora Arboleda were presented by the defense to support its theory that it was Regaspi, conspiring with his aunt and the victims wife, Demetria, who killed Romeo Calizar. Thus, in his third assignment of error, accused-appellant avers that the trial court committed reversible when it did not give any credence to the testimonies of these defense witnesses. It is doctrinally settled that the assessment of the credibility of witnesses and their testimony is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses [31] firsthand and to note their demeanor, conduct and attitude under grueling examination. In this case, the trial court found Regaspi to be the more credible witness and accorded his testimony full faith and credence. Upon the other hand, the trial court found the testimony of Arboleda phony and mere [32] [33] fabrication and that of Banogon inherently improbable. The Court finds no cogent reason to overturn these findings. Regaspis testimony on the manner by which accused-appellant killed Romeo Calizar was straightforward, clear and consistent. The fact that only Regaspi came out as an eyewitness to indict accused-appellant does not detract from his credibility. Truth is established not by the number of witnesses but by the quality of their testimonies. The testimony of a single witness if positive and credible is sufficient to support a conviction. Indeed, criminals are convicted not on the number of witnesses against them, but on the credibility of the testimony of even one witness who is able to convince the court of the guilt of the accused beyond a [34] shadow of doubt. Moreover, the defense failed to prove any ill-motive on the part of Regaspi to testify against accused-appellant. In the absence of any evidence or any indicium that the prosecutions main witness harbored ill motives against the accused, the presumption is that he was not so moved and that [35] his testimony was untainted with bias.

The guilt of accused-appellant for the killing of Calizar has thus been established beyond reasonable doubt in this case. Moreover, the trial court correctly appreciated the aggravating circumstance of treachery in the commission of the crime. Article 248 of the Revised Penal Code provides: Art. 248. Murder. Any person who, not falling within the provisions of Article 246 shall kill another, shall [36] be guilty of murder and shall be punished by reclusion temporalin its maximum period to death if committed with any of the following circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. x

There is treachery when the shooting was unexpected and sudden, giving the unarmed victim no chance whatsoever to defend himself. The two conditions for treachery to be present are: (1) that at the time of the attack, the victim was not in a position to defend himself and (2) the offender consciously [37] adopted the particular means, method or form of attack employed by him. As graphically described by the trial court, there is treachery in the case at bar because [F]rom the evidence presented, the poor victim was dragged from inside the jeep by the accused and when he was on the ground, he was kicked and when he fell down, he was shot three times. The shooting of the victim by the accused is all of a sudden. From all indications, there was no opportunity for the deceased to defend himself or to retaliate and the means of execution was deliberately adopted. The accused was in the jeep together with the deceased. The deceased would not have ridden into that jeep if he knows that he will be killed. So that when the deceased rode into that jeep before he was killed, the offender must have consciously adopted that particular means or method by use of a motor vehicle in order that the accuseds dastardly act could be accomplished. The Court takes note of the time of the killing at night and the fact that the victim was dragged from inside the jeep by the accused and after the victim was outside of the jeep, the accused kicked him and shot him three times. These circumstances [38] alone would provide that scenario that indeed, the victim was not in the position to defend himself. Finally, following the doctrine enunciated in People vs. Molina and reiterated in People vs. [40] [41] Feloteo and People vs. Lazaro, among others, the trial court appropriately considered the separate criminal charge of illegal possession of firearms against accused-appellant merely as an aggravating circumstance in this case. As the law stands today, there can no longer be a separate conviction of the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by [42] Republic Act No. 8294. Instead, illegal possession of firearms is simply taken as an aggravating circumstance in murder or homicide pursuant to Section 1 of R.A. No. 8294. Said provision of law reads in part: If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In illegal possession of firearms, two (2) requisites must be established: (1) the existence of the subject firearm, and (2) the fact that the accused who owned or possessed the gun did not have the [43] corresponding license or permit to carry it outside his residence. The first element the existence of the firearm - was indubitably established by the prosecution. Regaspi actually saw accused-appellant shoot the victim with a .45 caliber gun. Two empty shells and two slugs of a .45 caliber gun were recovered near the body of the victim by the police authorities and these were offered in evidence by the prosecution. Further, the testimony of SPO3 Romeo De Guzman of the Firearms and Explosives Office of the PNP Camp Crame attesting that based on their records, accused-appellant is not licensed or authorized to possess or carry a firearm suffices to prove the second element. The trial court, therefore, judiciously convicted accused-appellant for the crime of murder with the use of an unlicensed firearm. At the time of the commission of the offense at bar, the penalty prescribed for murder was reclusion [44] temporal in its maximum period to death. Since there was an aggravating circumstance of the use of an [45] illegally possessed firearm in the commission thereof, the law enjoins the imposition of the maximum [46] penalty. In this case, however, the penalty of death cannot be imposed on accused-appellant because
[39]

the crime was committed prior to the enactment of Republic Act No. 7659, the law imposing the death penalty on heinous crimes. Accordingly, the trial court correctly imposed on accused-appellant the penalty of reclusion perpetua. WHEREFORE, premises considered, the appealed Decision, dated 25 February 1998, is hereby AFFIRMED in toto. SO ORDERED.

CASE NO. 2- PEOPLE VERSUS CASTILLO EN BANC [G.R. No. 131592-93. February 15, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JULIAN CASTILLO y LUMAYRO, accusedappellant. DECISION PUNO, J.: JPUNO With the passage of Republic Act No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or homicide is now considered, not as a separate crime, but merely a special aggravating circumstance. In the case at bar, appellant JULIAN CASTILLO y LUMAYRO was charged with Murder and Illegal Possession of Firearms in two (2) separate Informations, thus: Criminal Case No. 45708: "That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, armed with a handgun, with deliberate intent and without justifiable motive, with evident premeditation, by means of treachery and with a decided purpose to kill, did then and there wilfully, unlawfully and criminally shoot, hit and wound Rogelio Abawag with the said gun, with which herein accused was then provided at the time, thereby causing upon said Rogelio Abawag bullet wounds on vital parts of his body, which caused his instantaneous death. "CONTRARY TO LAW." Criminal Case No. 45709: HTML "That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, with deliberate intent and without justifiable motive, have in his possession and control one (1) Homemade .38 caliber revolver without serial number (and) three (3) live ammunitions without the authority and permit to possess or carry the same. "CONTRARY TO LAW."
[2] [1]

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-workerROGELIO 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 [3] meter away from 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 imploration. The [4] 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, volunteered to go with the police and assist them in locating the accused. yacats The police, accompanied by Akoy, proceeded to Port San Pedro where they saw the accused on board a vessel bound for Cebu. When they boarded the vessel, Akoy positively identified the accused to the police as the assailant. The accused attempted to escape when the police identified themselves but the police caught up with him. Upon inquiry, the accused denied complicity in the killing of Abawag. The police found in his possession a .38 caliber handmade revolver, three (3) empty shells and three (3) live ammunitions. Further inquiry revealed that the accused owned the gun but had no license to possess it. The police then took the accused into custody and charged him for the murder of Abawag and for illegal [5] 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 ofHomicide, as the prosecution failed to prove the alleged qualifying circumstances of evident premeditation and treachery, and of Illegal Possession of Firearm, aggravated by homicide. The trial court disposed as follows: "WHEREFORE, premises considered and finding the accused guilty of the crimes of homicide and illegal possession of firearm aggravated by homicide beyond the shadow of the doubt, he is hereby sentenced as follows: "1) For the crime of homicide, he is sentenced to an indeterminate penalty of imprisonment of Twelve (12) years of prision mayor, as minimum, to Seventeen (17) years and Four (4) months of reclusion temporal, as maximum; "2) For illegal possession of firearm which is aggravated by homicide, he is sentenced to a penalty of death; "3) To pay the family of his victim P50,000.00 as indemnity and another P50,000.00 as moral damages; and "4) To pay the cost. "SO ORDERED."
[6]

(emphasis supplied)

On automatic review by this Court, appellant impugns solely his conviction for illegal possession of firearm for which he was sentenced to the supreme penalty of death.

Prefatorily, we stress that although the appellant himself does not refute the findings of the trial court regarding the homicide aspect of the case, the Court nevertheless made a thorough examination of the entire records of the case, including the appellant's conviction for homicide, based on the settled principle that an appeal in criminal cases opens the entire case for review. Our evaluation leads us to conclude that the trial court's ruling on the homicide aspect is clearly supported by the records. Thus, we shall concentrate on the appellant's lone assignment of error with respect to his conviction for the crime of illegal possession of firearm. olanski P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by Republic Act 8294. Aside from lowering the penalty for said crime, R.A. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a [7] 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 [8] penalty shall be imposed on the accused. Prescinding therefrom, and considering that the provisions of the amendatory law are favorable to herein [9] 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. The appellant anchors his present appeal on the assertion that his conviction was unwarranted as no proof was adduced by the prosecution that he was not licensed to possess the subject firearm. In their Manifestation and Motion in lieu of Appellee's Brief, the Solicitor General joined cause with the [10] appellant. haideem We agree. Two (2) requisites are necessary to establish illegal possession of firearms: first, the existence of the subject firearm, and second, the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence. The onus probandi of establishing these [11] elements 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 appellant shoot the victim thrice with a .38 caliber [12] revolver. Appellant himself admitted that he did not turn over the gun to the security guards in the [13] 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 [14] Firearms and Explosives Unit that the accused was not a licensee of the subject firearm or that the type [15] 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 [16] 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 [17] non-existence. kirsten Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun recovered from his possession, his admission will not relieve the prosecution of its duty to establish

beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In People vs. [18] 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 principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged. "Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: 'An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.' "Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license." (emphasis supplied) CODES Additionally, as pointed out by both the appellant and the Solicitor General, the extrajudicial admission was made without the benefit of counsel. Thus, we hold that the appellant may only be held liable for the crime of simple homicide under Article 249 of the Revised Penal Code. We come now to the penalty. The crime of homicide is penalized by reclusion temporal. There being no aggravating or mitigating circumstance attendant to the commission of the crime, the penalty of reclusion temporal shall be imposed in its medium period, i.e., from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor, i.e., from six (6) years and one (1) day to twelve (12) years, as minimum, to reclusion temporal in its medium period of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, as maximum. IN VIEW OF THE FOREGOING, the assailed Decision is MODIFIED. Appellant Julian Castillo y Lumayro is found guilty of Homicide. He is sentenced to imprisonment of from nine (9) years and four (4) months of prision mayor as minimum to sixteen (16) years, five (5) months and nine (9) days of reclusion temporal as maximum. However, the civil indemnity and moral damages awarded by the trial court to the heirs of the victim in the total amount of one hundred thousand (P100,000.00) pesos are affirmed. SO ORDERED.
[19]

CASE NO. 3- PEOPLE VS MOLINA

[G.R. No. 115835-36. July 22, 1998] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VERIATO MOLINA, RUBEN MOLINA, GREGORIO GAJAS, CASIMIRO (a.k.a. Quintin) CASTILLO, JESUS ARIOLA, JOHN DOE, RICHARD DOE, MICHAEL DOE AND MARK DOE, accused. VERIATO MOLINA and RUBEN MOLINA, accused-appellants.

DECISION PANGANIBAN, J.: While affirming the conviction of accused-appellants for the murder of the late Mayor Bonifacio Uy, [1] the Court applies in their favor Republic Act No. 8294, which amended PD No. 1866. Under the new law, the use of an unlicensed weapon in the commission of homicide or murder is considered simply as an aggravating circumstance and no longer a separate offense. Thus, said law effectively modified our [2] ruling in People vs. Quijada, in which we held that the use of an unlicensed firearm in a killing results in two separate crimes -- one, for the aggravated form of illegal possession of firearm and, two, for homicide or murder.

The Case A shooting incident, reportedly between two political factions, resulted in the death of a town mayor, a Sangguniang Bayan member and two others; and the wounding of at least six other persons. This was the subject of the two Informations filed by Senior State Prosecutor Nilo C. Mariano before the Regional Trial Court of Ilagan, Isabela, against Veriato Molina, Ruben Molina, Gregorio Gajas, Casimiro Castillo, Jesus Ariola and four Does. The first Information, dated January 31, 1990, charged the above accused with multiple murder [4] and multiple frustrated murder allegedly committed as follows: That on or about the evening of August 14, 1989, at Barangay San Antonio, Municipality of Ilagan, Province of Isabela, a place within the jurisdiction of this Honorable Court, aforenamed persons, conspiring, confederating and mutually helping one another, wilfully, unlawfully and feloniously, with intent to kill, treachery, abuse of superiority, and with the aid of armed men, and of nocturnity, did then and there assault and shoot Mayor Bonifacio Uy, Municipal Councilor (Sangguniang Bayan Member) Antonio Manaligod, Jaime Vargas, and Policarpio Estrada, with a cal. 38 revolver, cal. 30 garand rifle, and armalite rifles (M-14s and M-16s), thus inflicting gunshot wounds on vital parts of their heads and bodies, back and front, which caused their deaths as a consequence, and the serious wounding of MANUEL MARIANO, ANDRES FIGAROLA, MOISES DE LA CRUZ and WILMA ACIERTO, on the vital parts of their bodies, which ordinarily would cause their deaths, thus performing all the acts of execution which should have produced the crime of [m]ultiple [m]urder as a consequence thereof, but which, nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely medical care rendered to Manuel Mariano, Andres Figarola, Moises de la Cruz, and Wilma Acierto, which prevented their deaths. In the case of Mayor Bonifacio Uy, even when dead or in the throes of death, he was still stabbed with a bladed weapon by said group, sustaining stab wounds at his back and abdomen resulting in the evisceration of the intestines[;] said acts were no longer necessary but were manifestations of cruelty and/or outraging or scoffing at his person or corpse. The other Information, bearing the same date, charged the same accused with illegal possession [6] and carrying of firearms and ammunitions outside their respective residences, as narrated below: That on or about the evening of August 14, 1989, at Barangay San Antonio, Municipality of Ilagan, Province of Isabela, and within the jurisdiction of this Honorable Court, aforenamed persons, conspiring, and confederating with one another, had in their respective possessions the following firearms, to wit: Veriato Molina - an M-14 armalite rifle; Ruben Molina - a cal. 38 revolver; Gregorio Gajas, Casimiro Castillo and Jesus Ariola - M-16 armalite rifles; and John Doe, Richard Doe, Michael Doe, and Mark Doe M-16 armalite rifles and a cal. 30 garand rifle, which were loaded with their corresponding ammunitions, without the necessary license and/or authority to possess and carry the said firearms and ammunitions outside their residence issued by the corresponding government authorities, and which they used in the shooting and killing of Mayor Bonifacio Uy, Municipal Councilor (Sanggunian Member) Antonio Manaligod, Jaime Vargas, and Policarpio Estrada, and the serious wounding of Manuel Mariano, Andres Figarola, Moises de la Cruz, and Wilma Acierto with intent to kill, treachery, abuse of superiority and with the aid of armed men and of nocturnity.
[5] [3]

Subsequently, the widows of the deceased victims filed with this Court a petition for transfer of [7] venue. They feared that the accused, who were political leaders of the provincial governor, would use [8] such connection to influence the trial of the case. Said petition was favorably granted. The Regional Trial Court of Pasay City, Branch 108, was assigned to continue with the joint trial of the cases. In a [9] [10] Decision promulgated on June 3, 1994, the charges were disposed by the court a quo as follows: WHEREFORE, considering all the foregoing, judgment is hereby rendered as follows: A. FOR CRIMINAL LIABILITY 1. Acquitting accused Gregorio Gajas, Casimiro (a.k.a. Quintin) Castillo, and Jesus Ariola for failure of the prosecution to prove the case against them beyond reasonable doubt, in both cases. 2. In Criminal Case No. 1287 for [m]ultiple [m]urder and [f]rustrated [m]urder, finding accused Ruben Molina and Veriato Molina guilty beyond reasonable doubt of [m]ultiple [m]urder for the death of the following: Mayor Bonifacio Uy, Councilor Antonio Manaligod, Civilian Security Officer Policarpio Estrada and Civilian Security Officer Jaime Vargas, and [f]rustrated [m]urder for the serious wounding of Andres Figarola, and sentencing them each to four (4) [r]eclusion [p]erpetua for the death of the four victims; [f]or [f]rustrated [m]urder committed on Andres Figarola, the two accused are sentenced to serve imprisonment of SIX (6) YEARS, ONE (1) MONTH and ELEVEN (11) DAYS to EIGHT (8) YEARS and TWENTY (20) DAYS of [p]rision [m]ayor. 3. In Criminal Case No. 1288 for [i]llegal [p]ossession of [f]irearm and [a]mmunition, this crime not having been absorbed by the earlier offense considering that illegal possession is covered by a special law while murder is a crime under the Revised Penal Code, Ruben Molina and Veriato Molina are both found guilty beyond reasonable doubt and sentenced to suffer a straight penalty of SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY of reclusion temporal. 4. There being four (4) perpetual penalties to be served by Ruben Molina and Veriato Molina, the maximum simultaneous service of sentence of each accused shall in no case exceed forty (40) years. (Article 70, RPC as amended by CA 217, threefold rule.) 5. The preventive imprisonment at Pasay City Jail [of] the two accused Ruben Molina and Veriato Molina shall be deductible. B. FOR THE CIVIL LIABILITY The death of the victims having been established beyond doubt as the result of the shooting, a wrongful act of the accused who conspired, all the widows are entitled to damages for the death of their respective husbands. For MERCEDES QUA UY She is entitled to receive P50,000.00 as indemnity for the death of her husband, Mayor Bonifacio Uy. She is likewise entitled to moral damages as his death was established beyond doubt as the result of shooting by the accused. The moral damages covers wounded feelings, mental anguish, moral shock which are the proximate result of the wrongful act or omission of accused (Art. 2217, Civil Code) and moral damages is assessed in the amount of P1,000,000.00, considering the [m]ayors rank and the high regard the community has for him. For COUNCILOR ANTONIO MANALIGOD, his widow or his heir is entitled to receive the amount of P50,000.00 as indemnity for the death of the councilor, andP500,000.00 as moral damages. For Mrs. ANGELITA ESTRADA and Mrs. SALVACION VARGAS, widows of the two civilian security agents of Mayor Bonifacio Uy, the amount of P50,000.00 each for the death of their respective husbands. Each of the widows is also entitled to receive as moral damages from the accused the amount of P250,000.00.

All the widows/heirs are also entitled to P15,000.00 each as funeral expenses, all of the victims having been buried in Isabela. For ANDRES FIGAROLA Both accused, Ruben Molina and Veriato Molina shall solidarily be liable to Andres Figarola in the amount of P50,000.00 moral damages and P50,000.00 exemplary damages. Both accused to pay costs of suit. The two accused, Ruben Molina and Veriato Molina, were charged with [m]ultiple [m]urder which are capital offenses. They were allowed to bail out after the prosecution submitted the motion to bail with no sufficient evidence yet proving that their guilt [was] strong, such that this Court ruled in favor of accuseds temporary liberty conditioned on the posting of a bond in the amount of P150,000.00 each, in cash. Now that a conviction has been rendered finding them both guilty beyond reasonable doubt of the charge of [m]ultiple [m]urder, they are no longer entitled to bail as a matter of right. The basic governing principle on the right of the accused to bail is laid down in Section 3 of Rule 114 of the 1985 Rules on Criminal Procedure, as amended, which provides: Sec. 3. Bail, a matter of right; exception. -- All persons in custody shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when the evidence of guilt is strong. Pursuant to the aforecited provision, an accused who is charged with a capital offense or an offense punishable by reclusion perpetua, shall no longer be entitled to bail as a matter of right even if he appeals the case to this Court since his conviction clearly imports that the evidence of his guilt of the offense charged is strong. Accused Belarmino Divina was convicted by the Regional Trial Court of the crime of murde r which is an offense punishable by reclusion perpetua. Pursuant to SC Administrative Circular No. 2-92, he is no longer entitled to bail even if he appeals to us since his conviction clearly imports that the evidence of his guilt is strong. (People vs. Divina, SCRA 221, p. 223, April 7, 1993.) The Jail Warden, Pasay City Jail, is now directed to detain the two and to deliver them to the Bureau of Correction immediately with escorts.

The Facts Version of the Prosecution Evidence for the prosecution consists of testimonies of seventeen witnesses and nearly forty principal exhibits. Part of the trial courts summary of the facts reads: ROLANDO DREZA testified that as one of the civilian security officers of the deceased/victim Mayor Bonifacio Uy, he reported for work on August 14, 1989 at 7:00 in the morning. He was in the office when the Mayor received an invitation to administer the oath of the new officers of the Parents-Teachers Association at the Agro Industrial School in Barangay San Antonio, Ilagan, Isabela. The [m]ayor consented and left the office at 11:00 oclock a.m. with Councilor Antonio Manaligod, DILG Officer Potenciano Tabije and four (4) civilian security men -- Policarpio Estrada, Rolando Dreza, Rodolfo Bunagan and Jaime Vargas. They had lunch upon arrival at the school. Later, at 3:00 oclock p.m., the program started right in front of the school and this lasted [until] 5:00 oclock p.m., followed by some socializing and food and drink session, singing and guitar playing. They ended at about 10:30 oclock p.m. Barangay Captain Veriato Molina invited the Mayor to a funeral wake in the house of Ventura Hernandez, about 200 meters from the school. Mayor Uy obliged, and with Councilor Manaligod, Mr.

Tabije, Barangay Capt. Molina and other officials of the PTA, followed by the Mayors civilian security men, proceeded to the wake, walking. Their vehicle, the NISSAN 4 x 4, was attended to by Bunagan. When the [m]ayor and Barangay Captain Veriato Molina arrived, Ruben Molina (another accused and uncle of Veriato) was already there. He and the [m]ayor greeted each other before the [m]ayor entered the house where the body of the girl was lying in state. When he came out, he (the [m]ayor) joined Ruben Molina. The two conversed[;] Dreza heard Ruben Molinas remark: Pare, ang saya-saya ninyo sa eskwelahan, and the [m]ayors answer, Ikaw kasi, wala ka roon. Dreza also heard Wala na bang natira from Ruben (which Dreza assumed refer[red] to the drinks). To this the [m]ayor replied, If you want, lets buy some more (in Tagalog) but Ruben assured he [would] take care, requested Veriato to buy. Veriato left and returned 30-40 minutes later, with bottles. Veriato was seen whispering to Ruben before leaving the place. Ruben opened the bottle, took one shot, followed by the [m]ayor who also took one shot. The conversation grew heated, but Dreza opined it was because they (Ruben and the [m]ayor) had a previous standing grudge against each other. The further questions and answers, in the direct examination conducted by Private Prosecutor Mario Ongkiko on [W]itness Rolando Dreza on January 8, 1992, follows: Atty. Ongkiko: Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A xxx And when the conversation became heated will you describe to the Honorable Court the events that eventually followed? I heard Ruben Molina uttered to Mayor Uy, in Ilocano, Ukinam (Putang Ina mo). And what was the reaction of Mayor Uy? Mayor Uy reacted immediately and he threw a kick at Ruben Molina. And do you know if Ruben Molina was hit? I did not know if he was hit or not. And what happened after Mayor Uy threw a kick at Ruben Molina? When I saw that, I brought the [m]ayor away from Ruben Molina. And what happened next? When I was leading Mayor Uy away from Ruben Molina, that was the time when I saw Bgy. Captain Veriato Molina approached [sic] with a gun (baril). My question is, do you know what kind of gun Bgy. Captain Molina was carrying? Yes, sir. What was it? It was an M-14 folded, sir. And what happened when Bgy. Capt. Molina approached with a folded M-14, did he utter any word or words? What I heard was, Bgy. Capt. Molina uttered, Papatayin ko kayo. Was this in Tagalog or in Ilocano? It was in Tagalog. And after you heard Bgy. Capt. Molina uttered those words, what happened? Tumakbo po ako. xxx xxx

Q A Q A

And did you hear anything while you were running? That was when I heard many shots. Do you know or did you see anyone firing any of those shots? I only saw Bgy. Capt. Veriato Molina firing shots. (TSN, Jan. 8, 1992, pp. 35 to 36)

Atty. Ongkiko: Q A And do you recall what happened after you heard shots? After I heard the gun fire, I saw Mayor Uy clutching a post already weak (mahinang mahina na), and I concluded that he was hit. (TSN, p. 37, Jan. 8, 1992) Atty. Ongkiko: Q A Q A And when you saw the [m]ayor in a reclining position, his feet moving, what else did you see or notice? Then I saw Bgy. Capt. Veriato Molina returned [sic] and again open fire at the [m]ayor. Do you know what weapon did Bgy. Capt. Molina use this time? He was using the same M-14 folded.

Clarified by Fiscal Vibandor when he asked additional direct examination: Fiscal Vibandor: Q A Q A Q A Mr. Witness, you said that you saw accused Veriato Molina holding a firearm, and it was an M-14 firearm? Yes, sir. Why do you know that the accused was holding an M-14 firearm? Because I used to be with the [m]ilitary[;] that is why I know this type of firearm. And will you describe before this Court how long that firearm [was] which the accused was carrying at that time? If it is folded, it is about this long.

(Witness indicating a length of about 2 feet). Q A Q A Q A And have you seen the magazine of this M-14 firearm? Yes, sir, short magazine. And how long is the big magazine? The usual is a 20-round magazine, sir. And at the time that you saw the accused Veriato Molina, holding this type of firearm, do you recall the color of the firearm he was carrying at that time? It was camouflage green. (TSN, January 8, 1992, pp. 47-48.) The above testimony was substantially corroborated by two other prosecution witnesses, Rodolfo [11] [12] Bunagan and Andres Figarola. The latter -- whose left leg was wounded during the assault and later amputated -- added that, upon realizing he had been shot, he took off his belt and tied it around his wounded leg. We quote this relevant portion of his testimony: Q. After you tied the turniquet [sic] what happened next?

A.

After I tied the turniquet [sic] I looked around [and] the shooting has [sic] stopped. That was when I saw Veriato Molina approached [sic] Mayor Uy with a long firearm.

Q. Was there any exchange of words between Mayor Uy and Veriato Molina? A. When Mayor Uy saw Veriato Molina approaching, Mayor Uy uttered three (3) times in Ilocano Madi kon which means in Tagalog Ayoko na.

Q. And what was the reply of Veriato Molina, if any? A. Gurgurik ti bagim which means in Tagalog Dudurugin ko ang katawan mo.

Atty. Ongkiko: Q. And what happened next after Veriato Molina uttered th[ese] words? A. Then I heard that Veriato Molina shot him with an automatic rifle in 2 burst[s].

Q. What did you do when you heard th[ese] 2 burst[s] of gun fire? A. I immediately hid my face because I was afraid that I [might] be involved again.

Q. And after th[ese] 2 burst[s], what else transpired if any? A. Afterwards, I saw and I heard Ruben Molina address Veriato Molina in Ilocano Siguradom nga patay [isuna sakbay mo nga] panawan which means in [T]agalog Bago mo iwanan, [13] siguraduhin mong patay.

The prosecution evidence is further narrated by the trial court as follows: After failure of NBI CAVRO to do its job, the head of the NBI Manila team, Agent Pedro Rivera brought his NCR team members: Agent Ruel Lasala, Agent Villacarte, an NBI photographer, an NBI driver and [A]gent Samuel Gumba to Isabela on August 28, 1989. In the morning of August 29, 1989, they went to the PC Headquarters to request for assistance in the investigation. Col. Clyde Fernandez assigned one Lt. Borromeo to assist the NBI Manila team x x x. The team submitted its report consisting of 11 pages (Exhs. O to O-10) with annexes (Exhs. O-11 and O-12) to Regional Director Atty. Salvador Ranin. NBI Ilagan received the recovered empty shells. Turned over to NBI Manila, the same were given to Ballistics for examination, with request (Exh. P). Agent Pedro Rivera made it clear before the Court during the trial that they were not able to interview any one of the suspects because when a request was coursed to the provincial commander of Isabela to turnover the suspect Barangay Captain Veriato Molina who was then in his custody, to NBI Manila team, the PC Commander, Clyde Fernandez, refused. Fernandez told the NBI team they will turnover [sic] the [14] person of Veriato Molina under a court Order of Arrest. Other witnesses presented by the prosecution were: (1) NBI Ballistic Examiner Brandeis C. [15] Flores, who identified his three-page Ballistic Examination Report (Exh. R); (2) PO2 Ovidio [16] Prudencio of PNP, Calamagui 1st, Ilagan, Isabela, who assisted in the preparation of the sketch of the [17] crime scene; (3) Pat. Renato Galapon, also of PNP Ilagan, who conducted an investigation right after the incident and prepared the sketch indicating the positions of the fatalities and of the firearms and [18] empty shells recovered therefrom; (4) Daniel Cuevas, a photographer requested by the police to take [19] pictures of the crime scene; (5) Dr. Ruben Angobung, who performed an autopsy on the body of the [20] late mayor; (6) the widows of the deceased victims (Mayor Uy, Vargas and Estrada), who all related how their families experienced shock and grief over the brutal incident, and how they managed to survive [21] it; (7) Councilor Manaligods son who testified on the income of his late father; and (8) Sangguniang [22] Bayan Member Adelaida Almachar, who testified on the possible political motive behind the slay of the late mayor. The trial court dispensed with other prosecution witnesses after both parties agreed in open court on [23] some admissions and stipulations. These witnesses included: (1) Peter Lao, the photographer who took the pictures (Exhs. A to D) of the deceased mayor immediately after his death; (2) Dr. Conrado

Gabriel who conducted the post mortem examinations (Exhs. H to J) on the deceased victims except Mayor Uy; and (3) Edwin Purificando, the forensic chemist who prepared a biological report (Exh. K).

Version of the Defense The defense initially moved for leave to file a demurrer to evidence which, however, was denied by the trial court. It later presented a total of seventeen witnesses, including seven physicians who testified on medical findings on the injuries sustained by appellants, four witnesses before the actual shoot-out, two investigating officers, one alleged eyewitness, the two accused-appellants, and a government employee who testified on the pendency of an administrative complaint for illegal possession of firearms against the late Mayor Uy. The facts were recounted by the defense in this manner:
[25] [24]

On August 14, 1989, after attending, as inducting officer -guest speaker, the induction of officers of the Parents Teachers Association of Isabela which started noontime with a luncheon and ended at 5:30 p.m., followed by a drinking session which lasted up to about 10:30 p.m., Ilagan, Isabela Mayor Bonifacio Uy, together with [M]unicipal [C]ouncilor Antonio Manaligod, the m ayors three bodyguards, namely Jaime Vargas, Policarpio Estrada and Rolando Dreza, DILG officer Potenciano Tabije, [b]arangay [c]aptain of Centro San Antonio, Veriato Molina and others walked to the house of Ventura Hernandez which was about 200 meters away from the school to attend the wake of Hernandez' deceased daughter Michelle. Another bodyguard of the mayor, Rodolfo Bunagan, drove the mayor's Nissan pick-up to the [sic] Hernandez' residence. On reaching Hernandez' house, the mayor greeted Ruben Molina, herein accused-appellant, who was then seated, along with others, between Hernandez' house and that of the latter's brother-in-law Jerome Rivero. The mayor then went inside the house to view the remains of the deceased after which he went out and joined Ruben Molina. While outside, the mayor and Ruben Molina drank liquor in the course of which, though they started with cordiality, they later engaged in a heated argument which arose from the mayors accusation that Rubens jeep was the vehicle used by the killers of his (mayors) aunt and that Rubens act in the previous elections was suspect. One Moises de la Cruz, a pastor of the Iglesia ni Cristo, tried to pacify the mayor by suggesting that he change the topic, he (de la Cruz) having become aware that people around were apprehensive and some had in fact started leaving. As the mayor repeatedly accused Ruben Molina, the latter suggested that he bring the matter to court drawing the mayor to say Ukinam, and [to] kick Ruben who fell down. Not long after, shooting occurred and when it ended, the mayor, the councilor and two of the mayors bodyguards, namely, Policarpio Estrada and Jaime Vargas, were dead while the following were wounded: Ruben Molina, who had [a] gunshot wound below his left knee, and Veriato Molina, a nephew of Ruben (Ruben and Veriatos father being brothers), who had thru and thru gunshot wound at his right thigh. Defense Witness Moises de la Cruz, who had been physically injured during the affray, was initially one of the private complainants in the Information for multiple murder and multiple frustrated murder, but he later testified for the defense instead. He affirmed his sworn statement (Exh. 1) taken by the NBI during the investigation it had conducted in its office in Ilagan. He related therein, and likewise in court, [26] the antecedents of the shoot-out, an account which was substantially the same as the narrations of the prosecution eyewitnesses and the appellants. He added during his cross-examination that, while seeking cover after the initial gunfire left him wounded, he continued to hear gunshots within the wake premises [27] and saw Barangay Captain Veriato Molina holding a long firearm. Five other witnesses were presented by the defense, but none of them gave any direct account of how the shooting incident unfolded and transpired. They all admitted that they had left the crime scene [28] prior to the shoot-out.

Ruling of the Trial Court From the evidence on record, the court a quo concluded that conspiracy definitely existed between Appellants Ruben and Veriato Molina. All their further acts after the shooting and the circumstances that obtained, at their instance, are clear evidence of guilt and [are the] doings of guilty minds. Moreover, the [29] two connived to conceal the offense instead of revealing [it], to negate rather than cooperate . The trial court further concluded that the crime committed was multiple murder and frustrated murder qualified by treachery, abuse of superior strength and use of armed men. That the intention of accusedappellants was to kill the mayor and his bodyguards, including the councilor, was deduced by the trial judge from the statement reportedly made by Appellant Veriato Molina: Papatayin ko kayo. The collective pronoun kayo was used instead of its singular form, which Veriato could have used had he meant to kill the mayor only. The lower court also found both accused-appellants guilty of illegal possession of firearms and ammunitions. Evidence recovered from the crime scene included a Smith and Wesson revolver (.38 caliber), bearing SN (Serial Number) C617376, and six spent shells which were found by the NBI to have been fired from the aforementioned revolver. The Firearms and Explosives Unit in Camp Crame, Quezon City, certified that said revolver had been issued to Veriato Molina of Amulung, Cagayan; and that Ruben Molina was likewise a licensed holder of a registered revolver, Orohm Caliber .22, with SN [30] 232904. Neither appellant, however, had a permit to carry any firearm outside his residence. With respect to the other individuals charged together with the Molinas, the court a quo sadly noted that none of the prosecution witnesses -- vital and corroborative -- ever mentioned as present, during that fateful incident, the names of Accused Gregorio Gajas, Casimiro Castillo and Jesus Ariola. During the cross-examination of Defense Witness Oscar Malana, Private Prosecutor Ongkiko attempted to establish [31] the participation of these three accused, but in vain. Thus, their acquittal. Upon conviction by the trial court, Veriato and his uncle Ruben, both surnamed Molina, filed through [32] [33] counsel their Notice of Appeal direct to this Court.

Assignment of Errors In their 57-page Brief,

[34]

appellants assign the following errors:

A. On the Multiple Murder and Multiple Frustrated Murder Cases I The trial court erred in finding that prosecution witnesses, particularly Figarola, Bunagan and Dresa [sic] positively identified Ruben and Veriato as two of those who held guns (a caliber .38 Smith & Wesson for Ruben and an M-14 folded for Veriato) and who shot Mayor Bonifacio Uy and others. II The trial court erred in finding that the long firearm which Veriato was holding was used to kill the victims. III Even assuming arguendo that Accused-appellant Veriato Molina fired a shot at the mayor, the trial court erred in finding him liable for his (mayors) death and the death and [the] wounding of the others. IV Even assuming arguendo that Accused-appellant Veriato Molina fired at the mayor, the trial court erred in finding that treachery attended the shooting.

V Even assuming arguendo that Accused-appellant Veriato Molina fired at the mayor, the trial court erred in not appreciating self-defense and/or defense of a relative to free him of any liability. VI Even assuming arguendo that Accused-appellant Veriato Molina committed the acts attributed to him, the trial court erred in finding Accused-appellant Ruben Molina to have conspired in the commission thereof. VII The trial court erred in convicting accused-appellants of the crimes charged despite failure to prove their guilt beyond reasonable doubt. B. On the Illegal Possession of Firearms Case I The trial court erred in finding accused-appellants guilty of illegal possession of firearms. In their 45-page Supplemental Brief, I The trial court gravely erred in rendering a decision against the accused-appellants without the cold neutrality of a disinterested trial judge; hence, her decision is absolutely null and void for lack of basic due process. II. The trial court gravely erred in convicting the accused[-] appellants and in not acquitting them for lack of proof beyond reasonable doubt. III. The trial court gravely erred in appreciating the qualifying circumstances of treachery, abuse of superior strength and aid of armed men. IV. The trial court gravely erred in sentencing the accused-appellants for the crime of illegal possession of firearms. V. The trial court gravely erred in holding the accused-appellants liable for damages to the widows of the [37] victims. For clarity and simplicity, the related issues raised in appellants main and supplemental briefs will be discussed jointly. In fine, there are seven principal issues, namely: 1. Credibility of prosecution witnesses 2. Sufficiency of prosecution evidence
[36] [35]

appellants also submit the following issues for our resolution:

3. Attendance of the qualifying circumstances of treachery, abuse of superior strength, and aid of armed men 4. Presence of self-defense 5. Presence of conspiracy 6. Sufficiency of evidence for illegal possession and carrying of firearms 7. Liability for damages

The Courts Ruling The appeal is partly meritorious. Appellants are guilty of murder aggravated by illegal possession/carrying of firearms, for the killing of Mayor Uy only but not of the other alleged victims.

Preliminary Issue: Alleged Lack of Due Process Appellants, in their Supplemental Brief, bewail the alleged bias of the trial judge against them. Quite antithetically, appellants, while seeking nullification of the assailed Decision, do not pray for a new trial. They believe that the records are sufficient for this Court to render a valid verdict of acquittal. However, appellants fail to substantiate their allegations of bias and prejudice against the trial judge. The latters occasional allusion to the criminal proclivity of accused -appellants cannot by itself warrant the nullification of her entire decision. As will be discussed in more detail below, we find that the judges conclusions and judgment were objective and backed by sufficient evidence.

First Issue: Credibility of Prosecution Witnesses Appellants impugn the credibility of Prosecution Eyewitnesses Rodolfo Bunagan, Rolando Dreza and Andres Figarola. They claim that the first two were bodyguards of the late Mayor Uy and, therefore, their loyalty obviously remained with him. They allege that Figarolas testimony has been described by the trial court, in its resolution of the Motion for Bail, as lack[ing] the necessary details required of an eyewitness [38] account of the shooting incident; and yet, they continue, the judge became inconsistent and manifest of bias when, in her final resolution of the case, she made a sudden turnabout by giving credence to the same testimony. We are not persuaded. The mere fact that Witnesses Bunagan and Dreza served as security aides of the late Mayor Uy does not by itself destroy their credibility. At the time they testified in court, years had passed since the killing of the late mayor; and the defense has not given any basis for its claim that said witnesses unwavering loyalty remained steadfast to the extent that they lied under oath. Other than their having been bodyguards of the late mayor, no evidence appears on record indicating that Bunagan and Dreza were also politically motivated to testify against the political adversaries of their former boss. As regards Witness Figarola, the fact alone that the trial court found his testimony to be insufficient to justify a denial of appellants motion for bail, which was actually granted, does not preclude a subsequent conclusion that said testimony is credible when taken in conjunction with other evidence on record. As [39] the solicitor general points out, the courts earlier finding categorically stated that Figarolas testimony -taken for the mere purpose of determining the weight of prosecution evidence for the purpose of bail -- by itself lacked the necessary details. There was nothing wrong, however, in appreciating the same testimony later, when it turned out to be substantially corroborated by other credible witnesses. Hence, in the instant case we find no reason to disturb the well-settled rule that the trial courts evaluation and assessment of the credibility of witnesses deserve high respect. Having personally heard

and observed them when they testified, the judge, vis--vis the reviewing magistrate, is in a better position to pass judgment on their trustworthiness. Thus, his or her findings and conclusions are binding [40] upon this Court in the absence of a clear showing of arbitrariness or palpable error. As the trial judge in the present case perceived, the prosecution witnesses testified coherently, without reservation or fear. They are reliably credible witnesses entitled to be believed by the Court.

Second Issue: Sufficiency of Evidence for Multiple Murder and Frustrated Murder Appellants contend that the prosecutions evidence is not sufficient to override the constitutional presumption of their innocence; neither does it prove their guilt beyond reasonable doubt. We carefully reviewed the testimonies of the prosecution witnesses, who were perceived to be credible, and found that their accounts of the shooting incident corroborated one another on material points. In any event, based on the declarations in court of both prosecution and defense eyewitnesses, there is no real dispute on the antecedents leading to the initial burst of gunfire. As to the actual participation of appellants, Rodolfo Bunagan related thus: ATTY. ONGKIKO: Q: And what happened next when Ruben Molina was off-balanced? A: I came near Ruben Molina to help him. When I saw Ruben Molina dr[a]w something from his waist ...

ATTY. ONGKIKO: (butt-in) I will follow it up. Q: Did you see what Ruben Molina was drawing from his waist? ATTY. BLANES: (Objecting) It was already answered -- something. COURT: That is vague. We know very well that something is not identifiable. If that is an objection, that is [overruled]. ATTY. ONGKIKO: Q: Did you see what Ruben Molina was drawing from his waist? A: Yes, sir.

Q: What was it? A: It was a gun, sir.

Q: Will you tell the Honorable Court what kind of gun was it? A: xxx A revolver, sir. xxx xxx

Q: Now, when you saw Ruben Molina dr[a]w a revolver from his waist, what did you do? A: I moved backward, sir.

Q: And when you moved backward, what did you see or what did you notice? A: I saw Veriato Molina with an M-14 firearm, sir.

Q: And when you saw Veriato Molina with an M-14, tell the Honorable Court what happened.

A: xxx

Immediately thereafter, I hear[d] shots (nagkaputukan). Some were single, some were automatic. xxx xxx

Q: All right. Incidentally, when you saw Veriato Molina with an M-14, will you demonstrate to the Court how [he was] holding it when he was approaching Mayor Uy and Ruben Molina. (At this juncture, witness is demonstrating). ATTY. ONGKIKO: Holding the Mayor at the level of his breast in a pointing position. xxx COURT: Q: To what direction? A: It was pointed to Mayor Uy. xxx xxx

ATTY. ONGKIKO: Q: Did you hear Veriato Molina utter any statement before you heard the shots? A: Before the shots, I did not hear any words.

Q: All right. And when the shooting started, what did you do? A: I was rattled and took cover.
[41]

Q: Before you went out [of] the gate, will you tell this Honorable Court whether Veriato Molina was anywhere around? A: I saw Veriato [go] back to the place of Mayor Uy.

Q: What did he do? A: Binaril po.

Q: How many shots did Veriato Molina fire? A: I do not know, sir. I just heard the shots.

Q: And to whom were the shots directed? A: To Mayor Uy, sir.

[42]

Rolando Dreza substantially corroborated Bunagans account in this manner: Q: And when the conversation became heated, will you describe to the Honorable Court the events that eventually followed. A: I heard Ruben Molina [utter] to Mayor Uy, in Ilocano, Ukinam (Putang Ina mo).

Q: And what was the reaction of Mayor Uy? A: Mayor Uy reacted immediately and he threw a kick at Ruben Molina.

Q: And do you know if Ruben Molina was hit? A: I did not know if he was hit or not.

Q: And what happened after Mayor Uy threw a kick at Ruben Molina? A: When I saw that, I brought the Mayor away from Ruben Molina.

Q: And what happened next? A: When I was leading Mayor Uy away from Ruben Molina, that was the time when I saw Bgy. Capt. Veriato Molina approached [sic] with a gun (baril).

Q: My question is, do you know what kind of gun Bgy. Capt. Molina was carrying? A: Yes, sir.

Q: What was it? A: It was an M-14 folded, sir.

Q: And what happened when Bgy. Capt. Molina [approach] with a folded M-14, did he utter any word or words? A: What I heard was, Bgy. Capt. Molina uttered, Papatayin ko kayo.

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

Q: And after you heard Bgy. Capt. Molina [utter] these words, what happened? A: xxx Tumakbo po ako. xxx xxx

Q: And did you hear anything while you were running? A: That was when I heard many shots.

Q: Do you know or did you see anyone firing any of those shots? A: I only saw Bgy. Capt. Veriato Molina firing shots.

Q: To whom were the shots directed? A: I did not notice, sir, because there were a lot of people already running in panic.

Q: And do you recall what happened after you heard [the] shots? A: xxx After I heard the gun fire, I saw Mayor Uy clutching a post already weak (mahinang mahina na), and I concluded that he was hit. xxx xxx

Q: And when you saw the Mayor in a reclining position, x x x what else did you see or notice? A: Then I saw Bgy. Capt. Veriato Molina [return] and again, open [fire] at the Mayor.

Q: Do you know what weapon did Bgy. Capt. Molina use this time? A: He was using the same M-14 folded.
[43]

So did Andres Figarola corroborate Bunagans testimony, when he testified as follows: ATTY. ONGKIKO: Mr. Figarola, when the shooting took place involving Bonifacio Uy[,] will you tell this Court where were you? A: That time I was inside the furniture shop and playing [cards].

Q: How far was Mayor Bonifacio Uy from you or from your group? A: About 7 meters distance more or less. And from the time of [sic] the shooting started what was Bonifacio Uy

ATTY. ONGKIKO: doing? A:

Mayor Uy was in the presence of Molinas group and they were in a heated discussions [sic]. While Councilor Tony Manaligod and his companions were pacifying the group.

Q: And what happened then? A: I saw Veriato Molina [leave] the place and when he came back he was already carrying a gun.

xxx

xxx

xxx

Q: And after Veriato Molina returned with a long FAS[,] what happened next? A: He pointed his long gun to Mayor Uy and uttered Babarilin ko kayo.

Q: Was Veriato Molina speaking in Tagalog or [an]other dialect? A: In [T]agalog, po.

Q: And what happened next? A: After that I heard one single shot and we stood up and the table was there and then I heard successive shots.

Q: And when you stood up from the table[,] where did you go? A: xxx I [had] merely taken 3 steps and I stumble[d] and after a few moments I was hit. xxx xxx

Q: After you tie[d] your turnequet [sic] what happened next? A: After I tie[d] the turnequet I look[ed] around because the shooting ha[d] stop[ped]. That was when I saw Veriato Molina [approach] Mayor Uy with a long firearm.

Q: Was there any exchange of words between Mayor Uy and Veriato Molina? A: When Mayor Uy saw Veriato Molina approaching, Mayor Uy uttered three (3) times in Ilocano Madi kon which means in Tagalog Ayoko na.

Q: And what was the reply of Veriato Molina if any? A: Gurgurik ti bagim which means in [T]agalog Dudurugin ko ang katawan mo.

Q: And what happened next after Veriato Molina uttered [these] words? A: Then I heard that [sic] Veriato Molina shoot him with automatic rifle in 2 burst[s].
[44]

When cross-examined, Defense Witness Moises de la Cruz could not deny the fact that Appellant Veriato Molina was armed, as shown by this part of his testimony: Atty. Ongkiko: Is it not correct to understand, that when you were seeking cover, these shots were coming from one direction or it [was] coming [from] all direction[s]? A: The shots came from the place of commotion, it [was] from the place of the incident.

Q: Did you see anyone holding any gun whether [a] long or [a] short gun during the time that you heard the firing? A: There was, sir.

Q: Who was the one holding the gun whether [a] [l]ong or [a] short gun during that firing? A: It was Captain Veriato Molina, sir.

Q: Captain Veriato Molina was holding what kind of gun? Was it [a] long or [a] short gun? A: It was a long gun.
[45]

Considering the above eyewitness accounts, Appellant Veriato Molina cannot deny his felonious deed. He was positively seen pointing an M-14 rifle at Mayor Uy and, while in that position, he was heard spewing upon his very victim the exact words of his ill design to snuff out the life of the latter. Almost simultaneously, he fired at the mayor. Chaos within the premises ensued, followed by successive bursts of gunfire. Veriato himself was shot on his right leg. Yet, upon seeing the mayor still alive, though barely, Veriato -- doubtless determined to end the mayors life -- approached and fired his automatic weapon two [46] more times upon his unarmed victim, despite the latters pleas of surrender. Witness Rodolfo Bunagan also saw Appellant Ruben Molina draw a revolver from his waist after being kicked by Mayor Uy. Although he was not seen actually aiming his gun at the

mayor or anyone else in particular, he was unmistakably heard to have impelled his co-appellant to make [47] sure that the mayor was dead. It is a legal truism that positive and forthright declarations of prosecution witnesses are worthier of [48] credence than the self-serving denials of accused-appellants. The contemptible, heartless and savage conduct of both appellants verily deserves condemnation and the full imposition of the penalty that the law provides. Not even the alleged unruly conduct of the inebriated mayor justifies or mitigates appellants felonious acts. Worth further noting are the actuations of Appellant Veriato immediately after the shooting incident. According to him, after summoning somebody to get a vehicle in which he could take his injured uncle to the hospital and, after bringing his uncle in a jeep driven by a certain Alex Tumaliwan to the Isabela Provincial Hospital, he himself left at once and proceeded to a neighboring town -- Cauayan, [49] [50] Isabela, which was another hour away -- to seek medical treatment for his own injuries. He then proceeded to the provincial governor to relate what had just transpired at Barangay San Antonio, Ilagan, Isabela. Strangely thereafter, upon learning that Mayor Uy had expired during the affray, Appellant Veriato, upon the advice of the governor, voluntarily sought protective custody at the PNP Provincial [51] Directors Office. If Appellant Veriato, as he claims, had no hand at all in the shooting incident, why did he immediately and voluntarily seek protective custody from the police, simply upon learning of the mayors death during said occasion? At that time, he was not even a suspect. Neither were there, as yet, police reports implicating him in the affray. Why would Appellant Veriato think that his mere presence during the incident was reason enough for him to request police protection? Furthermore, while in the custody of the PNP, he refused to give a statement regarding the incident. His actuations were glaringly inconsistent with innocence. Moreover, although both appellants suffered injuries during the same shooting incident, they did not file any complaint at all in any forum against those whom they believed were responsible therefor. Considering all the foregoing, the Court believes beyond reasonable doubt that Appellants Veriato Molina and Ruben Molina are responsible for the killing of Bonifacio Uy. As regards the death and the wounding of the other victims, the Court has scoured the entire records but found no evidence to hold either of the Molinas culpable therefor. While the witnesses clearly established the culpability of the accused-appellants for the death of Mayor Uy, they failed to do the same with regard to the complicity of the two in the other felonies. None testified that either or both of appellants shot any of the other victims, or that they fired their weapons indiscriminately so as to be held responsible for all the consequences of their acts. Rather, it is apparent that there were other people within the premises who likewise participated in the shoot-out. But whether these unidentified persons conspired with appellants was not positively proven. Furthermore, it appears that at least one of the late mayors security aides was armed with a revolver, which had been used earlier by the mayor when he proposed to play Russian roulette with Appellant Ruben Molina. It is also a fact that both appellants sustained physical injuries, bolstering the probability that there was an exchange of gunfire between the two camps. On reasonable doubt, both appellants are acquitted of the killing of Antonio Manaligod, Policarpio Estrada and Jaime Vargas; and the wounding of Andres Figarola.

Third Issue: Attendance of Treachery, Abuse of Superior Strength and Aid of Armed Men In convicting accused-appellants of multiple murder and frustrated murder, the trial court ruled that the crimes were qualified by treachery, abuse of superior strength and use of armed men. But, as the appellants note, the said court did not explain its basis for appreciating the last two circumstances. Indeed, the records of the case do not contain evidence sufficient to conclude that appellants took advantage of excessive force notoriously out of proportion to the means of defense [52] available to the persons attacked. Neither is there enough evidence to support, beyond reasonable doubt, a finding that appellants had purposely sought and used the aid of armed men in attacking their

victim. It is a settled rule that the circumstances qualifying a killing to murder must be proven as [53] indubitably as the crime itself. As regards treachery, the trial court found that the attacks were sudden and unexpected to insure accomplishment. Alevosia is present when the offenders employ means, methods or forms in the execution of a criminal act which tend directly and specially to insure its execution without risk to [54] themselves arising from the defense which the offended party might make. The essence of treachery is the suddenness and unexpectedness of the attack which, done without provocation, gives the victim no [55] opportunity to defend himself. At first glance, the circumstances immediately preceding the shoot-out seem to negate the presence of treachery. Quite evident in the records is the fact that the victim, Bonifacio Uy, who was drunk at the time and in a sardonic predisposition, engaged Appellant Ruben Molina in a heated argument, accusing him of complicity in the killing of a relative. The drunk mayor even asked for a grenade which he threatened to detonate in the premises. When no one gave him any, he took a gun from one of his bodyguards and proposed to Appellant Ruben that they play Russian roulette. Said appellant, still unprovoked at the time, calmly refused. Then the victim shouted invectives at Ruben and even kicked him. All in all, the victims acts, done in the presence of several people who knew him and Ruben, constituted provocation sufficient to make the latters blood boil. Within hearing and seeing distance was Rubens nephew Veriato who, in all likelihood, also heard the threats and accusations hurled at his uncle, as well as witnessed the foul deeds done to him. A reprisal from Ruben or his nephew was, therefore, not unexpected. However, the subsequent acts of accused-appellants were definitely treacherous. After the initial shot, Appellant Veriato, despite seeing his helpless victim on his last legs and pleading to be spared of any more shooting, still cold bloodedly fired his automatic rifle at the unarmed mayor. The victim was already defenseless when Veriato attacked him the second time. Treachery may also be appreciated even when the victim was warned of danger or initially assaulted frontally, but was attacked again after [56] being rendered helpless and had no means to defend himself or to retaliate.

Fourth Issue: No Self-Defense or Defense of Relative It is quite belated for appellants to plead self-defense and defense of a relative at the present stage of the proceedings against them. The Court has carefully examined the records and found no such allegation advanced by accused-appellants before the lower court. Well-settled is the rule that, in pleading self-defense, appellants necessarily admit having shot and killed their victim. It is then incumbent upon them to prove that justifying circumstance to the satisfaction of the court, relying on the strength of their evidence and not on the weakness of the prosecutions. The reason is that even if prosecution evidence were weak, such could not be disbelieved after appellants had [57] already admitted the killing. Moreover, in alleging that the killing arose from an impulse to defend oneself or ones kin, the onus probandi rests upon accused-appellants to prove by clear and convincing evidence the elements thereof: that there was unlawful aggression on the part of the victim, that there was reasonable necessity for the means employed to prevent or repel it, and that there was lack of sufficient provocation on the part [58] of the defendant. These the appellants miserably failed to prove.

Fifth Issue: Conspiracy Present As earlier discussed, we find the concerted acts of Appellants Veriato and Ruben Molina to be indubitable indications of criminal conspiracy. Appellants agreed plan to slay Mayor Uy need not be proven to show conspiracy. Their express agreement and decision to commit the crime need not be

affirmatively proven either. Their joint action sufficiently points to a common design of their erstwhile political adversary.

[59]

[60]

-- to end the life

As the witnesses positively stated in court, Appellant Veriato shot the victim with an automatic rifle. Not satisfied with merely wounding his prey, he went closer and even verbalized his intent to kill the mayor, who was already on the verge of death and pleading for his life. At the same time, Appellant Ruben goaded him to make sure that the mayor perished. Rubens armed presence and verbal [61] incitement bared his complicity. No further proof is necessary to confirm appellants criminal collusion.

Sixth Issue: Illegal Possession of Firearms In crimes involving illegal possession of firearms, the prosecution has the burden of proving the elements thereof: (1) the existence of the subject firearm and (2) the fact that the accused, who owned or possessed the firearm, did not have the corresponding license or permit to possess or carry the same [62] outside his residence. Both elements have been indubitably proven by the prosecution. Witnesses categorically stated that both appellants held firearms during the incident -- Veriato, an M-14; and Ruben, a handgun. Recovered [63] from the scene of the crime were a revolver, which was later confirmed as registered in the name of [64] [65] Appellant Veriato Molina, and spent shells expelled from it as well as from other high-caliber weapons. Neither of the appellants, though both registered owners of handguns, was legally authorized to carry such gun outside his residence, according to a certification issued by the PNP Firearms and [66] Explosives Unit. Neither was Appellant Veriato authorized to possess an M-14 rifle, the weapon he used in killing Bonifacio Uy. Obviously, the use of an M-14 rifle was unauthorized because this weapon cannot be licensed in favor of, nor carried by, private individuals. With these pieces of evidence, [67] appellants should be held liable for violation of Sec. 1 of PD 1866. Under our ruling in People vs. [68] Quijada, violation of PD 1866 is an offense distinct from murder; appellants should perforce be culpable for two separate offenses, as ruled by the trial court. Fortunately for appellants, however, RA 8294 has now amended the said decree and considers the use of an unlicensed firearm simply as an aggravating circumstance in murder or [69] homicide, and not as a separate offense. The intent of Congress to treat as a single offense the illegal possession of firearm and the commission of murder or homicide with the use of such unlicensed firearm is clear from the following deliberations of the Senate during the process of amending Senate Bill No. 1148: Senator Drilon. On line 18, we propose to retain the original provision of law which says, If homicide or murder is committed with the use of the unlicensed firearm. And in order that we can shorten the paragraph, we would suggest and move that the use of the unlicensed firearm be considered as an aggravating circumstance rather than imposing another period which may not be in consonance with the Revised Penal Code. So that if I may read the paragraph in order that it can be understood, may I propose an amendment to lines 18 to 22 to read as follows: If homicide or murder is committed with the use of the unlicensed firearm, SUCH USE OF AN UNLICENSED FIREARM SHALL BE CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE. xxx Senator Santiago. The President. xxx Mr. President. With the permission of the two gentlemen, Senator Santiago is recognized. xxx

Senator Santiago. Will the principal author allow me as coauthor to take the [f]loor to explain, for the information of our colleagues, the stand taken by the Supreme Court on the question of whether aggravated illegal possession is a complex or a compound offense. May I have the [f]loor?

Senator Revilla. Senator Santiago.

Yes, Mr. President. Thank you.

In 1995, the Supreme Court held that when the crime of killing another person is committed with the use of an unlicensed firearm, the ruling in the case of People vs. Barroswas that the crime should only be illegal possession of firearm in its aggravated form. But in the later case, in May 1996, in the case of People vs. Evangelista, the court apparently took another position and ruled that when a person is killed with the use of an unlicensed firearm, it is possible to file two separate information[s] -- one for murder and one for illegal possession of firearms. In other words, in two successive years, the Supreme Court issued two different ways of treating the problem. The first is to treat it as one crime alone in the aggravated form, and the second is to treat it as two separate crimes. So at this point, the Senate has a choice on whether we shall follow the 1995 or the 1996 ruling. The proposal of the gentleman, as a proposed amendment, is to use the 1995 ruling and to consider the offense as only one offense but an aggravated form. That could be acceptable also to this coauthor. The Presiding Officer [Sen. Flavier.] Senator Revilla. So, do I take it that the amendment is accepted?

Yes, it is accepted, Mr. President. any objection to the

The Presiding Officer [Sen. Flavier.] Thank you. Is there [70] amendment? [Silence] There being none, the amendment is approved.

Although the explanation of the legal implication of the Drilon amendment may not have been very precise, such modification, as approved and carried in the final version enacted as RA 8294, is unequivocal in language and meaning. The use of an unlicensed firearm in a killing is now merely an [71] aggravating circumstance in the crime of murder or homicide. This is clear from the very wordings of the third paragraph of Section 1 of RA 8294, which reads: If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Furthermore, the preceding paragraphs, also in Section 1, state that the penalties for illegal possession of firearms shall be imposed provided that no other crime is committed. In other words, where murder or homicide was committed, the separate penalty for illegal possession shall no longer be meted out since it becomes merely a special aggravating circumstance. an
[72]

This statutory amendment may have been an offshoot of our remarks in People vs. Tac[73] and People vs. Quijada:

Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term penalty in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in Tac-an: There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or murder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death (orreclusion perpetua under the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code.

A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance. Moreover, unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. The scope of the term has been expanded in Sec. 5 of RA 8294: SEC. 5. Coverage of the Term Unlicensed Firearm. -- The term unlicensed firearm shall include: 1) 2) firearms with expired license, or unauthorized use of licensed firearm in the commission of the crime.

Thus, the unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor may still aggravate the resultant crime. In the case at bar, although appellants may have been issued their respective licenses to possess firearms, their carrying of such weapons outside their residences and their unauthorized use thereof in the killing of Bonifacio Uy may be appreciated as an aggravating circumstance in imposing the proper penalty for murder. All in all, appellants may be held liable only for murder with the special aggravating circumstance of using unlicensed firearms. Nevertheless, the death penalty cannot be imposed upon appellants, since the killing occurred in August 1989, when the imposition of the capital penalty was still proscribed by the Constitution.

Seventh Issue: Damages The Court affirms the grant of indemnity and moral damages to the family of the late Mayor Bonifacio Uy. His widow amply attested to the proximate effects of his violent death: moral shock, mental anguish [74] and emotional suffering experienced by her and her children. However, we find the moral damages granted by the court a quo excessive. Thus, the Court, in the exercise of its discretion, reduces the same to P200,000. WHEREFORE, the appeal is PARTLY GRANTED. Appellants Veriato Molina and Ruben Molina are found GUILTY of MURDER for the death of Bonifacio Uy with the special aggravating circumstance of using unlicensed firearms, and are each sentenced to reclusion perpetua and to pay, jointly and severally, P50,000 as indemnity and P200,000 as moral damages to the heirs of Bonifacio Uy. For the deaths of Antonio Manaligod, Policarpio Estrada and Jaime Vargas, and for the wounding of Andres Figarola, both appellants areACQUITTED on reasonable doubt. SO ORDERED.

CASE NO. 4- PADILLA VERSUS CA

[G.R. No. 121917. March 12, 1997]

ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents. DECISION

FRANCISCO, J.: On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.: "(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions; "(2) "(3) "(4) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions;

One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and Six additional live double action ammunitions of .38 caliber revolver."
[1]

Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) [2] of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866 thru the following [3] Information: "That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same. ALL CONTRARY TO LAW."
[4] [5] [6]

The lower court then ordered the arrest of petitioner, but granted his application for bail. During the [7] arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused, upon [8] [9] advice of counsel, to make any plea. Petitioner waived in writing his right to be present in any and all [10] stages of the case. After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as [11] [12] maximum". Petitioner filed his notice of appeal on April 28, 1994. Pending the appeal in the [13] respondent Court of Appeals, the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's [14] conviction, the dispositive portion of which reads: "WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith. SO ORDERED."
[15]

Petitioner received a copy of this decision on July 26, 1995. On August 9, 1995 he filed a "motion for [17] reconsideration (and to recall the warrant of arrest)" but the same was denied by respondent court in its [18] September 20, 1995 Resolution, copy of which was received by petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review on certiorari with [19] [20] application for bail followed by two "supplemental petitions" filed by different counsels, a "second [21] supplemental petition" and an urgent motion for the separate resolution of his application for [22] bail. Again, the Solicitor-General sought the denial of the application for bail, to which the Court agreed [23] in a Resolution promulgated on July 31, 1996. The Court also granted the Solicitor-General's motion to

[16]

file a consolidated comment on the petitions and thereafter required the petitioner to file his [24] reply. However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu [25] Of Comment" praying for petitioner's acquittal. The People's detailed narration of facts, well-supported by evidence on record and given credence [26] by respondent court, is as follows: "At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9,ibid). "Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid). "Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid). "He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid)reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid). "Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8,ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid). "In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 1214, ibid). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid). Upon learning that the two police officers already knew about the incident, Manarang went back to

where he came from (pp. 10-11; ibid). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge. "Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid). "SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's hand alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid). "While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 1617, ibid). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p. 28, ibid). SPO Mercado then read to appellant his constitutional rights (pp. 2829, ibid). "The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 3637,ibid). After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid). He was not able

to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994). "On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6,ibid). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)." Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution. After a careful review of the records of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart. Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal. Warrantless arrests are sanctioned in the following instances:
[28] [27]

"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it. (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or [29] private person. Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND [30] proceeds at once to the scene." As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected [31] the actual arrest of petitioner. Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who [32] actually arrested him were not at the scene of the hit and run. We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is

precisely through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an [33] [34] urgent need to render aid or take action. The exigent circumstances of - hot pursuit, a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in which [35] speed is essential and delay improvident. The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the [36] vehicle has been engaged in criminal activity. Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of [37] firearm and ammunitions) and this time in the presence of a peace officer. Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the [38] fast approaching Pajero of petitioner, its dangling plate number (PMA 777 as reported by Manarang), [39] and the dented hood and railings thereof. These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on [40] unreliable hearsay information. Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending [41] an arrest must be made before the accused enters his plea. Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, [42] placed him in estoppel to assail the legality of his arrest. Likewise, by applying for bail, petitioner [43] patently waived such irregularities and defects. We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold. The five (5) well-settled instances when a warrantless search and seizure of property is valid, as follows:
[44]

are

1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule [45] [46] 126 of the Rules of Court and by prevailing jurisprudence , 2. Seizure of evidence in "plain view", the elements of which are:
[47]

(a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b). the evidence was inadvertently discovered by the police who had the right to be where they are; (c). (d). the evidence must be immediately apparent, and "plain view" justified mere seizure of evidence without further search.
[49] [48]

3. search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that [50] the occupant committed a criminal activity. 4. 5. consented warrantless search, and customs search.

In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner's firearms and ammunitions without even undertaking any active search which, as it is [51] commonly understood, is a prying into hidden places for that which is concealed. The seizure of the

Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as [52] they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat. Thus it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty [53] person and the taking of the corpus delicti." "Objects whose possession are prohibited by law inadvertently found in plain view are subject to [54] seizure even without a warrant." With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily [55] surrendered them to the police. This latter gesture of petitioner indicated a waiver of his right against [56] the alleged search and seizure , and that his failure to quash the information estopped him from [57] assailing any purported defect. Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was [58] effected, the police may undertake a protective search of the passenger compartment and containers [59] in the vehicle which are within petitioner's grabbing distance regardless of the nature of the [60] offense. This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) [61] was within the arrestee's custody or area of immediate control and (ii) the search was [62] contemporaneous with the arrest. The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal [63] offense. Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and [64] ammunition as evidenced by a Mission Order and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm [65] does not have the corresponding license or permit to possess. The first element is beyond dispute as [66] the subject firearms and ammunitions were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus: "Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992. "Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the

Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms. "Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms. "At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena [67] on January 13, 1994." The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that: "VIII. c. When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding. "IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the [68] latter event, this Mission Order is rendered inoperative in respect to such violation." which directive petitioner failed to heed without cogent explanation. The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his [69] [70] behalf. His surname thereon, we note, was glaringly misspelled as "Durembes." In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts [71] under the Guidelines on the Issuance of MOs, MRs, & PCFORs. PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission [72] Order covers "Recom 1-12-Baguio City," areas outside Supt. Gumtang's area of responsibility thereby [73] needing prior approval "by next higher Headquarters" which is absent in this case. The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that: "No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officerof the appropriate AFP unit that such firearm has been officially taken up in that units property book, and that report of such action has been reported to higher AFP authority." Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well. What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by

petitioner's counsel. The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus: "No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, [75] or at higher levels of command." Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows: "If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering." That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed [76] or registered in the name of the petitioner. Thus: "Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any? "A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina. "Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214? "A. Yes, sir. "Q. And the firearms that were the subject of this case are not listed in the names of the accused in this case? "A. Yes, sir. xxx xxx And the certification which provides as follows: Republic of the Philippines Department of the Interior and Local Government GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE FIREARMS AND EXPLOSIVES OFFICE Camp Crame, Quezon City "PNPFEO5 "C E R T I F I C A T I O N "TO WHOM IT MAY CONCERN: "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687. 28 November 1992
[77]

[74]

xxx

"Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date: M16 Baby Armalite SN-RP131120 Revolver Cal 357 SN-3219 Pistol Cal 380 Pietro Beretta SN-35723 "However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License. "This certification is issued pursuant to Subpoena from City of Angeles. "FOR THE CHIEF, FEO: (Sgd.) JOSE MARIO M. ESPINO Sr. Inspector, PNP [78] Chief, Records Branch" In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession [79] [80] of firearm. In People vs. Tobias, we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even [81] be dispensed with in the light of the evidence that an M-16 rifle and any short firearm higher than a .38 [82] caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian, as in the case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial [83] court and respondent court which, as a rule, are accorded by the Court with respect and finality. Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed [84] under P.D. 1866 no longer exists. He stresses that the penalty of 17 years and 4 months to 21 years [85] for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution. The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that [86] laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and [87] apply the law as it stands. And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly [88] disproportionate to the nature of the offense as to shock the moral sense of the community' " It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of [89] imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.

Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the [90] Constitution, not a doubtful and argumentative implication, as in this case. In fact, the constitutionality [91] of P.D. 1866 has been upheld twice by this Court. Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . [92] ." Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as maximum), [93] we reduce the same in line with the fairly recent case of People v. Lian where the Courten banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is discernible from the following explanation by the Court: "In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In [94] accordance with the doctrine regarding special laws explained in People v. Simon, although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years. "This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium [95] period. WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum. SO ORDERED

CASE NO. 5- DECLARADOR VERSUS HON. GUBATON G.R. No. 159208 August 18, 2006 RENNIE vs. DECLARADOR, Petitioner,

HON. SALVADOR S. GUBATON, BANSALES,Respondents. DECISION CALLEJO, SR., J.:

Presiding

Judge,

Branch

14,

Roxas

City,

and

FRANK

This is a Petition for Certiorari seeking to nullify the portion of the Decision of the Regional Trial Court (RTC), Roxas City, Branch 14, in Criminal Case No. C-1419-10-2002, suspending the sentence of respondent Frank Bansales and ordering his commitment to the Regional Rehabilitation Center for Youth at Concordia, Nueva Valencia, Guimaras. Frank Bansales was born on June 3, 1985. He was a student at the Cabug-Cabug National High School in President Roxas, Capiz. At around 9:45 a.m. on July 25, 2002, Yvonne Declarador was stabbed to death. After conducting the autopsy on the cadaver, Rural Health Physician Pilar Posadas prepared a Post-Mortem Certificate indicating that the victim sustained 15 stab wounds on different parts of the 2 body. On October 10, 2002, an Information charging Frank Bansales with murder was filed by the Assistant Provincial Prosecutor with the Family Court. The accusatory portion reads: That on or about 9:45 oclock in the morning of July 25, 2002, inside a classroom in Cabug -Cabug National High School in President Roxas, Capiz, Philippines, and within the jurisdiction of this Honorable Court, the accused armed with a knife and with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault and stab with the said knife [his] teacher, one YVONNE DECLARADOR, thereby hitting and inflicting upon the latter multiple fatal stab wounds in the different parts of the body which caused the immediate death of the said Yvonne Declarador. The crime was committed with the attendance of the qualifying aggravating circumstances of evident premeditation and abuse of superior strength considering that the attack was made by the accused using a long knife which the latter carried along with him from his house to the school against his lady teacher who was unarmed and defenseless at that time and by inflicting upon the latter about fifteen (15) fatal 3 knife wounds resulting to her death. In view of the plea of the accused and the evidence presented, the RTC rendered judgment on May 20, 2003 finding Bansales guilty of murder. However, the court suspended the sentence of the accused and ordered his commitment to the Regional Rehabilitation for Youth at Concordia, Nueva Valencia, Guimaras. The dispositive portion of the decision reads: In view of the Plea of Guilty by the accused and the evidence presented by the prosecution, the court finds CICL Frank Bansales GUILTY beyond reasonable doubt of the crime of Murder being charged. Being a minor, 17 years of age at the time of the commission of the offense charged, he is entitled to a special mitigating circumstance of minority, and is sentenced to suffer an indeterminate imprisonment of twelve (12) years and one (1) day to seventeen (17) years and four (4) month of reclusion temporal and to pay the heirs of Yvonne Declarador, a civil indemnity of Seventy-Five Thousand Pesos (P75,000.00), Fifty Thousand Pesos (P50,000.00) for moral damages, Forty-Three Thousand Pesos (P43,000.00) for funeral expenses, attorneys fee of One Hundred Thousand Pesos (P100,000.00) and unearned income of One Million Three Hundred Seventy Thousand Pesos and Seventy Centavos (P1,370,000.70). The parents (father and mother of juvenile Frank Bansales) and his teacher-in-charge at the CabugCabug National High School of President Roxas, Capiz, are jointly subsidiarily liable in case of insolvency, as the crime was established to have been committed inside the classroom of Cabug-Cabug National High School and during school hours. Pursuant to the provision of P.D. 603, as amended, the sentence is suspended and the Child in conflict with the law (CICL), Frank Bansales is ordered committed to the Regional Rehabilitation Center for Youth at Concordia, Nueva Valencia, Guimaras.

Furnish copies of this decision the Office of the Provincial Prosecutor, the Private Prosecutors, the DSWD Capiz Provincial Office, Roxas City, the Regional Rehabilitation for Youth, Concordia, Guimaras, the accused and his counsel, Atty. Ramcez John Honrado. SO ORDERED.
4

On June 2, 2003, the RTC set a preliminary conference for 10:00 a.m. of June 10, 2003 with the Public Prosecutor, the Social Welfare Officer of the court, and the Officer-in-Charge of the Regional 5 Rehabilitation Center for Youth, considering that the accused would turn 18 on June 3, 2003. Rennie Declarador, the surviving spouse of the deceased, filed a petition for certiorari under Rule 65 of the Rules of Court assailing that portion of the decision of the trial courts decision suspending the sentence of the accused and committing him to the rehabilitation center. Petitioner claimed that under Article 192 of Presidential Decree (P.D.) No. 603, as well as A.M. No. 02-118-SC (otherwise known as the Rule on Juveniles in Conflict with the Law), the benefit of a suspended 6 sentence does not apply to a juvenile who is convicted of an offense punishable by death, reclusion 7 perpetua or life imprisonment. Citing the ruling of this Court in People v. Ondo, petitioner avers that since Bansales was charged with murder punishable by reclusion perpetua to death, he is disqualified from availing the benefits of a suspended sentence. In his Comment, Bansales avers that petitioner has no standing to file the petition, considering that the offense charged is a public crime brought in the name of the People of the Philippines; only the Office of the Solicitor General (OSG) is authorized to file a petition in court assailing the order of the RTC which suspended the service of his sentence. He further avers that Section 32 of A.M. No. 02-1-18-SC entitles the accused to an automatic suspension of sentence and allows the court to commit the juvenile to the youth center; hence, the court did not abuse its discretion in suspending the sentence of the accused. In reply, petitioner maintains that he has sufficient personality to file the petition. The OSG, for its part, posits that respondents sentence cannot be suspended s ince he was charged with a capital offense punishable by reclusion perpetua to death. It insists that the entitlement of a juvenile to a suspended sentence does not depend upon the sentence actually imposed by the trial court but upon the imposable penalty for the crime charged as provided for by law. The issues for resolution are the following: (1) whether petitioner has standing to file the petition; (2) whether petitioner violated the doctrine of hierarchy of courts in filing his petition with this Court; and (3) whether respondent court committed grave abuse of discretion amounting to excess or lack of jurisdiction in ordering the suspension of the sentence of respondent Bansales and his commitment to the Regional Rehabilitation Center for the Youth. The petition is granted. On the first issue, we rule for the petitioner. Being the surviving spouse of the deceased and the offended 8 party, he has sufficient personality to file the instant special civil action for certiorari. This is in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their 9 object. Moreover, the OSG has filed its comment on the petition and has joined the petitioner in his plea for the nullification of the assailed portion of the RTC decision. On the second issue, the rule is that a petition for review on certiorari which seeks to nullify an order of 10 the RTC should be filed in the Court of Appeals in aid of its appellate jurisdiction. A direct invocation of the original jurisdiction of the Court to issue writs of certiorari may be allowed only when there are special 11 and important reasons therefor clearly and specifically set out in the petition. This is an established policy necessary to prevent inordinate demands upon this Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of the 12 Courts docket.

However, in Fortich v. Corona, the Court held that considering the nature and importance of the issues raised and in the interest of speedy justice, and to avoid future litigations, the Court may take cognizance 14 of a petition for certiorari directly filed before it. Moreover, this Court has suspended its own rules and excepted a particular case from their operation whenever the interests of justice so require. In this case, we resolve to take cognizance of the case, involving as it does a juvenile and the application of the Rule on Juveniles in Conflict with the Law. The charge against respondent Bansales was murder with the qualifying circumstance of either evident premeditation or abuse of superior strength. Under Article 248 of the Revised Penal Code, as amended by Republic Act (Rep. Act) No. 7659, the imposable penalty for the crime is reclusion perpetua to death. The trial court found him guilty of murder. Article 192 of P.D. No. 603, as amended, provides: Art. 192. Suspension of Sentence and Commitment of Youthful Offender. If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him, the court, shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court, upon application of the youthful offender and if it finds that the best interest of the public, as well as that of the offender will be served thereby, may suspend all further proceedings and commit such minor to the custody or care of the Department of Social Welfare and Development or to any training institution operated by the government or any other responsible person until he shall have reached twenty-one years of age, or for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare and Development or the government training institution or responsible person under whose care he has been committed. Upon receipt of the application of the youthful offender for suspension of his sentence, the court may require the Department of Social Welfare and Development to prepare and submit to the court a social case study report over the offender and his family. The youthful offender shall be subject to visitation and supervision by the representative of the Department of Social Welfare and Development or government training institution as the court may designate subject to such conditions as it may prescribe. The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted for an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals. The law was reproduced in A.M. No. 02-1-18-SC where, except for those under paragraph 3, Section 32 of the law, the sentence of the accused is automatically suspended: Sec. 32. Automatic Suspension of Sentence and Disposition Orders. The sentence shall be suspended without need of application by the juvenile in conflict with the law. The court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence which shall be attended by the social worker of the Family Court, the juvenile, and his parents or guardian ad litem. It shall proceed to issue any or a combination of the following disposition measures best suited to the rehabilitation and welfare of the juvenile: care, guidance, and supervision orders; Drug and alcohol treatment; Participation in group counseling and similar activities; Commitment to the Youth Rehabilitation Center of the DSWD or other centers for juvenile in conflict with the law authorized by the Secretary of DSWD. The Social Services and Counseling Division (SSCD) of the DSWD shall monitor the compliance by the juvenile in conflict with the law with the disposition measure and shall submit regularly to the Family Court a status and progress report on the matter. The Family Court may set a conference for the evaluation of such report in the presence, if practicable, of the juvenile, his parents or guardian, and other persons whose presence may be deemed necessary.

13

The benefits of suspended sentence shall not apply to a juvenile in conflict with the law who has once enjoyed suspension of sentence, or to one who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the juvenile is already eighteen (18) years of age or over. Thus, it is clear that a person who is convicted of an offense punishable by death, life imprisonment, or reclusion perpetua is disqualified from availing the benefits of a suspended sentence. "Punishable" is defined as "deserving of, or capable, or liable to punishment; liable to be punished; may be punished; 15 liable to punishment." The word "punishable" does not mean "must be punished," but "liable to be 16 17 punished" as specified. In U.S. v. Villalon, the Court defined punishable as "deserving of, or liable for, punishment." Thus, the term refers to the possible, not to the actual sentence. It is concerned with the penalty which may be, and not which is imposed. The disqualification is based on the nature of the crime charged and the imposable penalty therefor, and not on the penalty imposed by the court after trial. It is not the actual penalty imposed but the possible 18 one which determines the disqualification of a juvenile. Despite the disqualification of Bansales, respondent Judge, nevertheless, ordered the suspension of the sentence meted against him. By this act, respondent Judge committed grave abuse of discretion amounting to excess of jurisdiction. We note that, in the meantime, Rep. Act No. 9344 took effect on May 20, 2006. Section 38 of the law reads: SEC. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court on Juveniles in Conflict with the Law. The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or more at the time of the pronouncement of his/her guilt. The other disqualifications in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 38 of Rep. Act No. 9344. Evidently, the intention of Congress was to maintain the other disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from having their sentences suspended. Case law has it that statutes in pari materia should be read and construed together because enactments of the same legislature on the same subject are supposed to form part of one uniform system; later statutes are supplementary or complimentary to the earlier enactments and in the passage of its acts the legislature is supposed to have in mind the existing legislations on the subject and to have enacted the 19 new act with reference thereto. Statutes in pari materia should be construed together to attain the 20 purpose of an expressed national policy. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Order of the respondent Judge suspending the sentence of respondent Frank Bansales is NULLIFIED. SO ORDERED.

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