G.R. Nos.

115008-09 July 24, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANIEL QUIJADA Y CIRCULADO, accused-appellant.
DAVIDE, JR., J.:p
Accused-appellant Daniel Quijada appeals from the decision of 30
September 1993 of Branch 1 of the Regional Trial Court (RTC) of Bohol
convicting him of the two offenses separately charged in two informations,
viz., murder under Article 248 of the Revised Penal Code and illegal
possession of firearm in its aggravated from under P.D. No. 1866, and
imposing upon him the penalty of reclusion perpetua for the first crime and
an indeterminate penalty ranging from seventeen years, four months, and
one day, as minimum, to twenty years and one day, as maximum, for the
second crime. 1
The appeal was originally assigned to the Third Division of the Court but
was later referred to the Court en banc in view of the problematical issue of
whether to sustain the trial court's judgment in conformity with the doctrine
laid down in People vs. Tac-an, 2 People vs. Tiozon, 3 People vs. Caling, 4
People vs. Jumamoy, 5 People vs. Deunida, 6 People vs. Tiongco, 7 People
vs. Fernandez, 8 and People vs. Somooc 9 or to modify the judgment and
convict the appellant only of illegal possession of firearm in its aggravated
form pursuant to People vs. Barros, 10 which this Court (Second Division)
decided on 27 June 1995.
The informations read as follows:

hitting the latter on his head and causing serious injuries which resulted to
his death; to the damage and prejudice of the heirs of the deceased.
Acts committed contrary to the provision of Art. 248 of the Revised Penal
Code, with aggravating circumstance of nighttime being purposely sought
for or taken advantage of by the accused to facilitate the commission of the
crime. 11
CRIMINAL CASE NO. 8179
That on or about the 30th day of December, 1992, in the municipality of
Dauis, province of Bohol, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, did then and there willfully,
unlawfully and feloniously keep, carry and have in his possession, custody
and control a firearm (hand gun) with ammunition, without first obtaining
the necessary permit or license to possess the said firearm from competent
authorities which firearm was carried by the said accused outside of his
residence and was used by him in committing the crime of Murder with
Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the
Republic of the Philippines.
Acts committed contrary to the provisions of PD No. 1866. 12
Having arisen from the same incident, the cases were consolidated, and
joint hearings were had. The witnesses presented by the prosecution were
SPO4 Felipe Nigparanon (Acting Chief of Police of Dauis, Bohol), SPO
Gondalino Inte, Dr. Gregg Julius Sodusta, Rosita Iroy, and Teodula
Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin
Nistal, Julius Bonao, Saturnino Maglupay, and the appellant himself.
The evidence for the prosecution is summarized by the Office of the
Solicitor General in the Brief for the Appellee as follows:

CRIMINAL CASE NO. 8178

That on or about the 30th day of December, 1992, in the municipality of
Dauis, province of Bohol, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, with intent to kill and without
any justifiable motive, with treachery and abuse of superior strength, the
accused being then armed with a .38 cal. revolver, while the victim was
unarmed, suddenly attacked the victim without giving the latter the
opportunity to defend himself, and with evident premeditation, the accused
having harbored a grudge against the victim a week prior to the incident of
murder, did then and there willfully, unlawfully and feloniously attack,
assault and shoot Diosdado Iroy y Nesnea with the use of the said firearm,

On 25 December 1992, a benefit dance was held at the Basketball Court of

Barangay Tinago, Dauis, Bohol. On this occasion, a fist fight occurred
between Diosdado Iroy and appellant Daniel Quijada as the latter was
constantly annoying and pestering the former's sister Rosita Iroy (TSN,
Crim. Cases 8178 & 1879, June 8, 1993, pp. 32-35; August 5, 1993, pp.
14-15).
In the evening of 30 December 1992, another benefit dance/disco was held
in the same place. This benefit dance was attended by Rosita Iroy, Ariel
Dano, Teodora Badayos, Ado Aranzado, Largo Iroy and Diosdado Iroy.

While Rosita Iroy and others were enjoying themselves inside the dancing
area, Diosdado Iroy, Eugene Nesnea and Largo Iroy, who were then sitting
at the plaza (the area where they positioned themselves was duly lighted
and was approximately four mete's from the dancing hall), decided to just
watch the activities in the dance hall directly from the plaza.

The firearm used by the appellant in shooting Diosdado Iroy was not
licensed. Per certifications issued on 26 April 1993, the appellant was not a
duly licensed firearm holder as verified from a consolidated list of licensed
firearm holders in the province 16 and was not authorized to carry a firearm
outside his residence. 17

After dancing, Rosita Iroy decided to leave and went outside the gate of the
dance area. Subsequently, or around 11:30 of the same night, while facing
the direction of Diosdado Iroy, Rosita Iroy saw appellant surreptitiously
approach her brother Diosdado Iroy from behind. Suddenly, appellant fired
his revolver at Diosdado Iroy, hitting the latter at the back portion of the
head. This caused Rosita Iroy to spontaneously shout that appellant shot
her brother; while appellant, after shooting Diosdado Iroy, ran towards the
cornfield.

The appellant interposed the defense of alibi, which the trial court rejected
because he was positively identified by prosecution witness Rosita Iroy. It
summarized his testimony in this wise:

Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo

Iroy to the hospital but the injury sustained was fatal. In the meantime,
Rosita Iroy went home and relayed to her parents the unfortunate incident
(TSN, Crim. Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22, inclusive of
the preceding paragraphs).
At around midnight, the incident was reported to then Acting chief of Police
Felipe Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula
Matalinis. The police officer made entries in the police blotter regarding the
shooting and correspondingly, ordered his men to pick up the appellant.
But they were unable to locate appellant on that occasion (TSN, Crim Case
Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
In the afternoon of 31 December 1992, appellant, together with his father
Teogenes Quijada went to the police station at Dauis, Bohol. There and
then, appellant was pinpointed by Elenito Nistal and Rosita Iroy as the
person who shot Diosdado Iroy. These facts were entered in the police
blotter as Entry No. 1151 (TSN, Crim Case Nos. 8178 & 8179, ibid. p. 14,
June 14, 1993, pp. 4-6). 13

Daniel Quijada y Circulado, the accused in the instant cases, declared that
in the afternoon of December 30, 1992 he was in their house. At 6:00
o'clock in the afternoon he went to Tagbilaran City together with Julius
Bonao in a tricycle No. 250 to solicit passengers. They transported
passengers until 10:30 o'clock in the evening. They then proceeded to the
Tagbilaran wharf waiting for the passenger boat Trans Asia Taiwan. Before
the arrival of Trans Asia Taiwan they had a talk with Saturnino Maglopay.
They were able to pick up two passengers for Graham Avenue near La
Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of MV
Cebu City that docked at 12:10 past midnight. They had a talk with
Saturnino Maglopay who was waiting for his auntie scheduled to arrive
abroad MV Cebu City. They were not able to pick up passengers which, as
a consequence, they went home. They had on their way home passengers
for the Agors Public Market. They arrived at the house of Julian Bonao at
Bil-isan, Pangalao, Bohol at 3:00 o'clock in the morning of December 31,
1992 where he passed the night. He went home to Mariveles, Dauis, Bohol
at 9:00 o'clock in the morning. 18
The trial court gave full faith and credit to the version of the prosecution
and found the appellant guilty beyond reasonable doubt of the crimes
charged and sentenced him accordingly. It appreciated the presence of the
qualifying circumstance of treachery considering that the appellant shot the
victim at the back of the head while the latter was watching the dance. The
dispositive portion of the decision dated 30 September 1993 reads as
follows:

The slug was embedded at the midbrain. 14 Diosdado Iroy died of

Cardiorespiratory arrest, secondary to tonsillar herniation, secondary to
massive intracranial hemorrhage, secondary to gunshot wound, 1 cm. left
occipital areas, transecting cerebellum up to midbrain. 15

PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the
accused Daniel Quijada guilty of the crime of murder punished under
Article 248 of the Revised Penal Code and hereby sentences him to suffer
an imprisonment of Reclusion Perpetua, with the accessories of the law
and to pay the cost.

In Criminal Case No. 8179, the Court finds the accused Daniel Quijada
guilty of the crime of Qualified Illegal Possession of Firearm and
Ammunition punished under Sec. 1 of RA No. 1866 as amended, and
hereby sentences him to suffer an indeterminate sentence from Seventeen
(17) years Four (4) months and One (1) day, as minimum, to Twenty (20)
years and One (1) day, as maximum, with the accessories of the law and to
pay the cost.
The slug or bullet which was extracted from the brain of the back portion of
the head of the victim Diosdado Iroy is hereby ordered forfeited in favor of
the government.
It appearing that the accused Daniel Quijada has undergone preventive
imprisonment he is entitled to the full time he has undergone preventive
imprisonment to be deducted from the term of sentence if he has executed
a waiver otherwise he will only be entitled to 4/5 of the time he has
undergone preventive imprisonment to be deducted from his term of
sentence if he has not executed a waiver. 19
On 29 October 1993, after discovering that it had inadvertently omitted in
the decision an award of civil indemnity and other damages in Criminal
Case No. 8178, the trial court issued an order directing the appellant to pay
the parents of the victim the amount of P50,000.00 as indemnity for the
death of their son and P10,000.00 for funeral expenses. 20 The order was to
form an integral part of the decision.
The decision was promulgated on 29 October 1993. 21
The appellant forthwith interposed the present appeal, and in his Brief, he
contends that the trial court erred

DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSEDAPPELLANT PARTICULARLY THE RELATIVE POSITIONS OF
DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED
ARANZADO.
III
. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES
ROSITA IROY AND SPO4 FELIPE NIGPARANON HAD MOTIVES IN
FALSELY TESTIFYING AGAINST ACCUSED-APPELLANT. 22
The appellant then submits that the issue in this case boils down to the
identity of the killer of Diosdado Iroy. To support his stand that the killer was
not identified, he attacks the credibility of prosecution witnesses Rosita Iroy
and SPO4 Felipe Nigparanon. He claims that the former had a motive "to
put him in a bad light" and calls our attention to her direct testimony that
her brother Diosdado, the victim, boxed him on the night of 25 December
1992 because he allegedly "bothered her." He further asserts that Rosita
could not have seen the person who shot Diosdado considering their
respective positions, particularly Rosita who, according to defense
witnesses Nistal and Aranzado, was still inside the dancing area and ran
towards the crime scene only after Diosdado was shot. And, the appellant
considers it as suppression of evidence when the prosecution did not
present as witnesses Diosdado's companions who were allegedly seated
with Diosdado when he was shot.
As to SPO4 Nigparanon, the appellant intimates improper motives in that
the said witnesses is a neighbor of the Iroys, and when he testified, a case
for arbitrary detention had already been filed against him by the appellant.
The appellant further claims of alleged omissions and unexplained entries
in the police blotter.

I
. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE
TO THE TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY
AND FELIPE NIGPARANON.
II
. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE
WITNESSES EDWIN NISTAL AND ALFRED ARANSADO, AND IN

Finally, the appellant wants us to favorably consider his defense of alibi

which, according to him, gained strength because of the lack of evidence
on the identity of the killer. Furthermore, he stresses that his conduct in
voluntarily going to the police station after having been informed that he,
among many others, was summoned by the police is hardly the actuation
of the perpetrator of the killing of Diosdado Iroy specially so if Rosita
Iroy's claim is to be believed that moments after the shooting she shouted
that Daniel Quijada shot Diosdado Iroy.

In its Appellee's Brief, the People refutes every argument raised by the
appellant and recommends that we affirm in toto the challenged decision.
After a careful scrutiny of the records and evaluation of the evidence
adduced by the parties, we find this appeal to be absolutely without merit.
The imputation of ill-motive on the part of Rosita Iroy and the basis therefor
hardly persuade. The appellant was the one who was boxed by and lost to
Diosdado Iroy in their fight on the night of 25 December 1992. It is then
logical and consistent with human experience that it would be the appellant
who would have forthwith entertained a grudge, if not hatred, against
Diosdado. No convicting evidence was shown that Rosita had any reason
to falsely implicate the appellant in the death of her brother Diosdado.
The claim that Rosita could not have seen who shot her brother Diosdado
because, as testified to by defense witnesses Nistal and Aranzado, she
was inside the dancing hall and rushed to her brother only after the latter
was shot is equally baseless. The following testimony of Rosita shows
beyond cavil that she saw the assailant:
Q You said that you were initially dancing inside the dancing place and you
went out, about what time did you get out?
A 11:00 o'clock.
Q And you were standing about two (2) meters from Diosdado Iroy until
11:30 when the incident happened?
A Yes I was standing.
Q And where did you face, you were facing Diosdado Iroy or the dancing
area?
A I was intending to go near my brother. I was approaching and getting
near going to my brother Diosdado Iroy and while in the process I saw
Daniel Quijada shot my brother Diosdado Iroy. 23
xxx xxx xxx
Q And in your estimate, how far was your brother Diosdado Iroy while he
was sitting at the plaza to the dancing place?
A More or less four (4) meters distance.
COURT:
From the dancing hall?
A Yes, your honor.
Q And in your observation, was the place where Diosdado Iroy was sitting
lighted or illuminated?
A Yes, sir.
Q What kind of light illuminated the place?

A I do not know what kind of light but it was lighted.

Q Was it an electric light?
A It is electric light coming from a bulb.
Q Where is that electric bulb that illuminated the place located?
A It was placed at the gate of the dancing place and the light from the
house.
Q You said gate of the dancing place, you mean the dancing place was
enclosed at that time and there was a gate, an opening?
A Yes, sir.
Q What material was used to enclose the dancing place?
A Bamboo.
Q And how far was the bulb which was placed near the entrance of the
dancing place to the place where Diosdado Iroy was sitting?
A Five (5) meters.
Q You mentioned also that there was a light coming from the house, now
whose house was that?
A The house of spouses Fe and Berto, I do not know the family name.
Q Was the light coming from the house of spouses Fe and Berto an electric
light?
A Yes, sir.
Q And in your estimate, how far was the source of light of the house of Fe
and Berto to the place where Diosdado Iroy was sitting?
A About six (6) meters distance. 24
xxx xxx xxx
Q What was the color of the electric bulb in the gate of the dancing place?
A The white bulb. 25
The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly
declared:
The factual findings of the Court in the instant case is anchored principally
in ". . . observing the attitude and deportment of witnesses while listening to
them speak" (People vs. Magaluna, 205, SCRA 266).
thereby indicating that on the basis of the witnesses' deportment and
manner of testifying, the declarations of Nistal and Aranzado failed to
convince the trial court that they were telling the truth. Settled is the rule
that the factual findings of the trial court, especially on the credibility of
witnesses, are accorded great weight and respect. For, the trial court has
the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion

or the sudden pallor of a discovered lie or the tremulous mutter of a

reluctant answer or the forthright tone of a ready reply; 26 or the furtive
glance, the blush of conscious shame, the hesitation, the sincere of the
flippant or sneering tone, the heat, the calmness, the yarn, the sigh, the
candor or lack of it, the scant or full realization of the solemnity of an oath,
the carriage and mien. 27 The appellant has miserably failed to convince us
that we must depart from this rule.

scene of the crime at the time of its commission.

Neither are we persuaded by the claimed suppression of evidence

occasioned by the non-presentation as prosecution witnesses any of the
companions of Diosdado who were seated with him when he was shot. In
the first place, the said companions could not have seen from their back
the person who suddenly shot Diosdado. In the second place, the
testimony of the companions would, at the most, only corroborate that of
Rosita Iroy. Besides, there is no suggestion at all that the said companions
were not available to the appellant. It is settled that the presumption in
Section 3 (e), Rule 131 of the Rules of Court that evidence willfully
suppressed would be adverse if produced does not apply when the
testimony of the witness is merely corroborative or where the witness is
available to the accused. 28

The evidence for the prosecution further established with moral certainty
that the appellant had no license to possess or carry a firearm. The firearm
then that he used in shooting Diosdado Iroy was unlicensed. He, therefore,
committed the crime of aggravated illegal possession of firearm under the
second paragraph of Section 1 of P.D. No. 1866, which reads:

The alleged improper motive on the part of SPO4 Nigparanon simply

because he is a neighbor of the Iroy's remains purely speculative, as no
evidence was offered to establish that such a relationship affected SPO4
Nigparanon's objectivity. As a police officer, he enjoyed in his favor the
presumption of regularity in the performance of his official duty. 29 As to the
alleged omissions and unexplained entries in the police blotter, the same
were sufficiently clarified by SPO4 Nigparanon.
The defense of alibi interposed by the appellant deserves scant
consideration. He was positively identified by a credible witness. It is a
fundamental judicial dictum that the defense of alibi cannot prevail over the
positive identification of the accused. 30 Besides, for that defense to prosper
it is not enough to prove that the accused was somewhere else when the
crime was committed; he must also demonstrate that it was physically
impossible for him to have been at the scene of the crime at the time of its
commission. 31 As testified to by defense witness Julian Bonao, the
Tagbilaran wharf, where the appellant said he was, is only about eight to
nine kilometers away from the crime scene and it would take only about
thirty minutes to traverse the distance with the use of a tricycle. 32 It was,
therefore, not physically impossible for the appellant to have been at the

Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he
would not have voluntarily proceeded to the police station. This argument is
plain sophistry. The law does not find unusual the voluntary surrender of
offenders; it even considers such act as a mitigating circumstance. 33
Moreover, non-flight is not conclusive proof of innocence. 34

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession

of Firearms, Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose or possess any firearm, part of firearm, ammunition or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
In light of the doctrine enunciated in People vs. Tac-an, 35 and reiterated in
People vs. Tiozon, 36 People vs. Caling, 37 People vs. Jumamoy, 38 People
vs. Deunida, 39 People vs. Tiongco, 40 People vs. Fernandez, 41 and People
vs. Somooc, 42 that one who kills another with the use of an unlicensed
firearm commits two separate offenses of (1) either homicide or murder
under the Revised Penal Code, and (2) aggravated illegal possession of
firearm under the second paragraph of Section 1 of P.D. No. 1866, we
sustain the decision of the trial court finding the appellant guilty of two
separate offenses of murder in Criminal Case No. 8178 and of aggravated
illegal possession of firearm in Criminal Case No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a
violation of the constitutional proscription against double jeopardy if an
accused is prosecuted for homicide or murder and for aggravated illegal
possession of firearm, they at the same time laid down the rule that these

are separate offenses, with the first punished under the Revised Penal
Code and the second under a special law; hence, the constitutional bar
against double jeopardy will not apply. We observed in Tac-an:

homicide or murder, is punished by the Revised Penal Code.

It is elementary that the constitutional right against double jeopardy

protects one against a second or later prosecution for the same offense,
and that when the subsequent information charges another and different
offense, although arising from the same act or set of acts, there is no
prohibited double jeopardy. In the case at bar, it appears to us quite clear
that the offense charged in Criminal Case No. 4007 is that of unlawful
possession of an unlicensed firearm penalized under a special statute,
while the offense charged in Criminal Case No. 4012 was that of murder
punished under the Revised Penal Code. It would appear self-evident that
these two (2) offenses in themselves are quite different one from the other,
such that in principle, the subsequent filing of Criminal Case No. 4012 is
not to be regarded as having placed appellant in a prohibited second
jeopardy.

It is a cardinal rule that the protection against double jeopardy may be

invoked only for the same offense or identical offenses. A simple act may
offend against two (or more entirely distinct and unrelated provisions of law,
and if one provision requires proof of an additional act or element which the
other does not, an acquittal or conviction or a dismissal of the information
under one does not bar prosecution under the other. Phrased elsewise,
where two different laws (or articles of the same code) defines two crimes,
prior jeopardy as to one of them is not obstacle to a prosecution of the
other, although both offenses arise from the same fact, if each crime
involves some important act which is not an essential element of the other.

And we stressed that the use of the unlicensed firearm cannot serve to
increase the penalty for homicide or murder; however, the killing of a
person with the use of an unlicensed firearm, by express provision of P.D.
No. 1866, shall increase the penalty for illegal possession of firearm.
In Tiozon, we stated:
It may be loosely said that homicide or murder qualifies the offense
penalized in said Section 1 because it is a circumstance which increases
the penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense; otherwise, an anomalous absurdity results
whereby a more serious crime defined and penalized in the Revised Penal
Code is absorbed by a statutory offense, which is just a malum prohibitum.
The rationale for the qualification, as implied from the exordium of the
decree, is to effectively deter violations of the laws on firearms and to stop
the "upsurge of crimes vitally affecting public order and safety due to the
proliferation of illegally possessed and manufactured firearms, . . . " In fine
then, the killing of a person with the use of an unlicensed firearm may give
rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866
and (b) violation of either Article 248 (Murder) or Article 249 (Homicide) of
the Revised Penal Code. The accused cannot plead one as a bar to the
other; or, stated otherwise, the rule against double jeopardy cannot be
invoked because the first is punished by a special law while the second,

In People vs. Doriguez [24 SCRA 163, 171], We held:

In People vs. Bacolod, [89 Phil. 621], from the act of firing a shot from a
sub-machine gun which caused public panic among the people present
and physical injuries to one, informations of physical injuries through
reckless imprudence and for serious public disturbance were filed. Accused
pleaded guilty and was convicted in the first and he sought to dismiss the
second on the ground of double jeopardy. We ruled:
The protection against double jeopardy is only for the same offense. A
simple act may be an offense against two different provisions of law and if
one provision requires proof of an additional fact which the other does not,
an acquittal or conviction under one does not bar prosecution under the
other.
Since the informations were for separate offense[s] the first against a
person and the second against public peace and order one cannot be
pleaded as a bar to the other under the rule or double jeopardy.
In Caling, we explicitly opined that a person charged with aggravated illegal
possession of firearm under the second paragraph of Section 1 of P.D. No.
1866 can also be separately charged with and convicted of homicide or
murder under the Revised Penal Code and punished accordingly. Thus:
It seems that the Court a quo did indeed err in believing that there is such a
thing as "the special complex crime of Illegal Possession of Unlicensed
Firearm Used in Homicide as provided for and defined under the 2nd
paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling guilty

thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended,"

reads as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Firearms [or] Ammunition or Instruments Used or Intended to be Used in
the Manufacture of Firearms or Ammunition. The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearm, part of firearm, ammunition or machinery,
tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
What is penalized in the first paragraph, insofar as material to the present
case is the sole, simple act of a person who shall, among others,
"unlawfully possess any firearm . . (or) ammunition . . ." Obviously,
possession of any firearm is unlawful if the necessary permit and/or license
therefor is not first obtained. To that act is attached the penalty of reclusion
temporal, maximum, to reclusion perpetua. Now, if "with the use of (such)
an unlicensed firearm, a "homicide or murder is committed," the crime is
aggravated and is more heavily punished, with the capital punishment.
The gravamen of the offense in its simplest form is, basically, the fact of
possession of a firearm without license. The crime may be denominated
simple illegal possession, to distinguish it from its aggravated form. It is
aggravated if the unlicensed firearm is used in the commission of a
homicide or murder under the Revised Penal Code. But the homicide or
murder is not absorbed in the crime of possession of an unlicensed firearm;
neither is the latter absorbed in the former. There are two distinct crimes
that are here spoken of . One is unlawful possession of a firearm, which
may be either simple or aggravated, defined and punished respectively by
the first and second paragraphs of Section 1 of PD 1866. The other is
homicide or murder, committed with the use of an unlicensed firearm. The
mere possession of a firearm without legal authority consummates the
crime under P.D. 1866, and the liability for illegal possession is made
heavier by the firearm's use in a killing. The killing, whether homicide or
murder, is obviously distinct from the act of possession, and is separately
punished and defined under the Revised Penal Code. (emphasis supplied)
In Jumamoy, we reiterated Caling and amplified the rationale on why an

accused who kills another with an unlicensed firearm can be prosecuted

and punished for the two separate offenses of violation of the second
paragraph of Section 1 of P.D. No. 1866 and for homicide or murder under
the Revised Penal Code. Thus:
Coming to the charge of illegal possession of firearms, Section 1 of P.D.
No. 1866 penalizes, inter alia, the unlawful possession of firearms or
ammunition with reclusion temporal in its maximum period to reclusion
perpetua. However, under the second paragraph thereof, the penalty is
increased to death if homicide or murder is committed with the use of an
unlicensed firearm. It may thus be loosely said that homicide or murder
qualifies the offense because both are circumstances which increase the
penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense. If these were to be so, an anomalous absurdity
would result whereby a more serious crime defined and penalized under
the Revised Penal Code will be absorbed by a statutory offense, one which
is merely malum prohibitum. Hence, the killing of a person with the use of
an unlicensed firearm may give rise to separate prosecutions for (a) the
violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article
248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The
accused cannot plead one to bar the other; stated otherwise, the rule
against double jeopardy cannot be invoked as the first is punished by a
special law while the second Murder or Homicide is punished by the
Revised Penal Code. [citing People vs. Tiozon, 198 SCRA 368, 379 (1991);
People vs. Doriguez, 24 SCRA 163 (1968)]. Considering, however, that the
imposition of the death penalty is prohibited by the Constitution, the proper
imposable penalty would be the penalty next lower in degree, or reclusion
perpetua. (emphasis supplied)
In Deunida, in discussing the propriety of the Government's action in
withdrawing an information for murder and pursuing only the information for
"Qualified Illegal Possession of Firearm," this Court categorically declared:
At the outset, it must be stressed that, contrary to the prosecution's legal
position in withdrawing the information for murder, the offense defined in
the second paragraph of Section 1 of P.D. No. 1866 does not absorb the
crime of homicide or murder under the Revised Penal Code and, therefore,
does not bar the simultaneous or subsequent prosecution of the latter
crime. The 1982 decision in Lazaro vs. People, involving the violation of
P.D. No. 9, which the investigating prosecutor invokes to justify the
withdrawal, is no longer controlling in view of our decisions in People vs.

Tac-an, People vs. Tiozon, and People vs. Caling.

In Somooc, we once more ruled:
The offense charged by the Information is clear enough from the terms of
that document, although both the Information and the decision of the trial
court used the term "Illegal Possession of Firearm with Homicide," a
phrase which has sometimes been supposed to connote a "complex crime"
as used in the Revised Penal Code. Such nomenclature is, however, as we
have ruled in People vs. Caling, a misnomer since there is no complex
crime of illegal possession of firearm with homicide. The gravamen of the
offense penalized in P.D. No. 1866 is the fact of possession of a firearm
without a license or authority for such possession. This offense is
aggravated and the imposable penalty upgraded if the unlicensed firearm is
shown to have been used in the commission of homicide or murder,
offenses penalized under the Revised Penal Code. The killing of a human
being, whether characterized as homicide or murder, is patently distinct
from the act of possession of an unlicensed firearm and is separately
punished under the provision of the Revised Penal Code.
The foregoing doctrine suffered a setback when in our decision of 27 June
1995 in People vs. Barros, 43 we set aside that portion of the appealed
decision convicting the appellant of the offense of murder and affirmed that
portion convicting him of illegal possession of firearm in its aggravated
form. We therein made the following statement:
[A]ppellant may not in the premises be convicted of two separate offenses
[of illegal possession of firearm in its aggravated form and of murder], but
only that of illegal possession of firearm in its aggravated form, in light of
the legal principles and propositions set forth in the separate opinion of Mr.
Justice Florenz D. Regalado, to which the Members of the Division, the
ponente included, subscribe.
The pertinent portions of the separate opinion of Mr. Justice Florenz D.
Regalado referred to therein read as follows:
This premise accordingly brings up the second query as to whether or not
the crime should properly be the aggravated illegal possession of an
unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm

punished by death under the second paragraph of Section 1, Presidential

Decree No. 1866, and it is on this point that the writer dissents from the
holding which would impose a separate penalty for the homicide in addition
to that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to
the accused, the Court has correctly held that to be the simple possession
punished with reclusion temporal in its maximum period to reclusion
perpetua in the first paragraph of Section 1. Where, complementarily, the
unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the
graver offense of aggravated illegal possession. In other words, the
homicide or murder constitutes the essential element for integrating into
existence the capital offense of the aggravated form of illegal possession of
a firearm. Legally, therefore, it would be illogical and unjustifiable to use the
very same offenses of homicide or murder as integral elements of and to
create the said capital offense, and then treat the former all over again as
independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive
standpoint, virtually of the nature of the so-called, "special complex
crimes," which should more appropriately be called composite crimes,
punished in Article 294, Article 297 and Article 335. They are neither of the
same legal basis as nor subject to the rules on complex crimes in Article
48, since they do not consist of a single act giving rise to two or more grave
or less grave felonies nor do they involve an offense being a necessary
means to commit another. However, just like the regular complex crimes
and the present case of aggravated illegal possession of firearms, only a
single penalty is imposed for each of such composite crimes although
composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been covered
by the conceptual definition of a complex crime under Article 48, but the
Code imposes a single definite penalty therefor it cannot also be punished
as a complex crime, much less as separate offense, but with only the
single penalty prescribed by law. Thus, even where a single act results in
two less grave felonies of serious physical injuries and serious slander by
deed, the offense will not be punished as a delito compuesto under Article
48 but as less serious physical injuries with ignominy under the second
paragraph of Article 265. The serious slander by deed is integrated into and

produces a graver offense, and the former is no longer separately

punished.
What is, therefore, sought to be stressed by such alternative illustration, as
well as the discussion on complex and composite crimes, is that when an
offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority
would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is
more of a question of classification for purposes of the other provisions of
the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included
in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually source from
the very provisions of Presidential Decree No. 1866 which sought to
"consolidate, codify and integrate" the "various laws and presidential
decrees to harmonize their provision" which "must be updated and revised
in order to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlaying the provisions
of the Anti-Carnapping Act of 1972, wherein the principal crime to be
charged is still carnapping, although the penalty therefore is increased
when the owner, driver or occupant of the carnapped vehicle is killed. The
same situation, with escalating punitive provisions when attended by a
killing, are found in the Anti-Piracy and Anti-Highway Robbery Law of 1974
and the Anti-Cattle Rustling Law of 1974, wherein the principal crimes still
are piracy, highway robbery and cattle rustling. Also, in the matter of
destructive arson, the principal offense when, inter alia, death results as a
consequences of the commission of any of the acts punished under said
article of the Code.
In the present case, the academic value of specifying whether it is a case
of illegal possession of firearm resulting in homicide or murder, or,
conversely, homicide or murder through the illegal possession and use of
an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken
either way, the penalty for aggravated illegal possession of a firearm is the
single indivisible penalty of death, in which case the provision on recidivism
would not apply. If, however, the illegal possession is not established but

either homicide or murder is proved, then the matter of recidivism may

have some significance in the sense that, for purposes thereof, the
accused was convicted of a crime against persons and he becomes a
recidivist upon conviction of another crime under the same title of the
Code.
Lastly, on the matter of the offense or offenses to be considered and the
penalty to be imposed when the unlawful killing and the illegal possession
are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render
a joint decision thereon, imposing a single penalty for aggravated illegal
possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either
simple illegal possession, homicide or murder per se. The same procedural
rule and substantive disposition should be adopted if one information for
each offense was drawn up and these informations were individually
assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately
from the homicide or murder could be susceptible of abuse since it entails
undue concentration of prosecutorial powers and discretion. Prefatorily, the
fact that the killing was committed with a firearm will necessarily be known
to the police or prosecutorial agencies, the only probable problem being the
determination and obtention of evidence to show that the firearm is
unlicensed.
Now, if a separate information for homicide or murder is filed without
alleging therein that the same was committed by means of an unlicensed
firearm, the case would not fall under Presidential Decree No. 1866. Even if
the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use
of a firearm by itself, even if proved in that case, would not affect the
accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the
prosecution intending to file thereafter the charge for homicide or murder
but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other
hand, the separate and subsequent prosecution for homicide or murder
prospers, the objective of Presidential Decree No. 1866 cannot be

achieved since the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the
proposition that the real offense committed by the accused, and for which
sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible
problems projected herein may be minimized or obviated if both offenses
involved are charged in only one information or that the trial thereof, if
separately charged, be invariably consolidated for joint decision. Conjointly,
this is the course necessarily indicated since only a single composite crime
is actually involved and it is palpable error to deal therewith and dispose
thereof by segregated parts in piecemeal fashion.
If we follow Barros, the conviction of the appellant for murder in Criminal
Case No. 8178 must have to be set aside. He should only suffer the
penalty for the aggravated illegal possession of firearm in Criminal Case
No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the
existing conflicting doctrines applicable to prosecutions for murder or
homicide and for aggravated illegal possession of firearm in instance where
an unlicensed firearm is used in the killing of a person. After a lengthy
deliberation thereon, the Court en banc arrived at the conclusion that the
rule laid down in Tac-an, reiterated in Tiozon, Caling, Jumamoy, Deunida,
Tiongco, Fernandez, and Somooc is the better rule, for it applies the laws
concerned according to their letter and spirit, thereby steering this Court
away from a dangerous course which could have irretrievably led it to an
inexcusable breach of the doctrine of separation of powers through judicial
legislation. That rule upholds and enhances the lawmaker's intent or
purpose in aggravating the crime of illegal possession of firearm when an
unlicensed firearm is used in the commission of murder or homicide.
Contrary to the view of our esteemed brother, Mr. Justice Florenz D.
Regalado, in his Concurring and Dissenting Opinion in the case under
consideration, Tac-an did not enunciated an "unfortunate doctrine" or a
"speciously camouflaged theory" which "constitutes an affront on doctrinal
concepts of penal law and assails even the ordinary notions of common
sense."
If Tac-an did in fact enunciated such an "unfortunate doctrine," which this

Court has reiterated in a convincing number of cases and for a convincing

number of years, so must the same verdict be made in our decision in
People vs. De Gracia, 44 which was promulgated on 6 July 1994. In the
latter case, we held that unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate prosecution for a violation
of Section 1 of P.D. No. 1866 and also for a violation of Articles 134 and
135 of the Revised Penal Code on rebellion. A distinction between that
situation and the case where an unlicensed firearm is used in homicide or
murder would have no basis at all. In De Gracia, this Court, speaking
through Mr. Justice Florenz D. Regalado, made the following authoritative
pronouncements:
III. As earlier stated, it was stipulated and admitted by both parties that from
November 30, 1989 up to and until December 9, 1989, there was a
rebellion. Ergo, our next inquiry is whether or not appellant's possession of
the firearms, explosives and ammunition seized and recovered from him
was for the purpose and in furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in
furtherance of rebellion pursuant to paragraph 2 of Article 135 of the
Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of
prision mayor in its minimum period." The court below held that appellant
De Gracia, who had been servicing the personal needs of Col. Matillano
(whose active armed opposition against the Government, particularly at the
Camelot Hotel, was well known), is guilty of the act of guarding the
explosives and "molotov" bombs for and in behalf of the latter. We accept
this finding of the lower court.
The above provision of the law was, however, erroneously and improperly
used by the court below as a basis in determining the degree of liability of
appellant and the penalty to be imposed on him. It must be made clear that
appellant is charged with the qualified offense of illegal possession of
firearms in furtherance of rebellion under Presidential Decree No. 1866
which, in law, is distinct from the crime of rebellion punished under Article
134 and 135 of the Revised Penal Code. There are two separate statutes
penalizing different offenses with discrete penalties. The Revised Penal
Code treats rebellion as a crime apart from murder, homicide, arson, or
other offenses, such as illegal possession of firearms, that might
conceivably be committed in the course of a rebellion. Presidential Decree
No. 1866 defines and punishes, as a specific offense, the crime of illegal

possession of firearms committed in the course or as part of a rebellion.

As a matter of fact, in one case involving the constitutionality of Section 1
of Presidential Decree No. 1866, the Court has explained that said
provision of the law will not be invalidated by the mere fact that the same
act is penalized under two different statutes with different penalties, even if
considered highly advantageous to the prosecution and onerous to the
accused. It follows that, subject to the presence of requisite elements in
each case, unlawful possession of an unlicensed firearm in furtherance of
rebellion may give rise to separate prosecutions for a violation of Section 1
of Presidential Decree No. 1866, and also a violation of Articles 134 and
135 of the Revised Penal Code on rebellion. Double jeopardy in this case
cannot be invoked because the first is an offense punished by a special law
while the second is a felony punished by the Revised Penal Code with
variant elements.
We cannot justify what we did in De Gracia with a claim that the virtue of
fidelity to a controlling doctrine, i.e., of Tac-an, had compelled us to do so.
Indeed, if Tac-an enunciated an "unfortunate doctrine" which is "an affront
on doctrinal concepts of penal law and assails even the ordinary notions of
common sense," then De Gracia should have blazed the trail of a new
enlightenment and forthwith set aside the "unfortunate doctrine" without
any delay to camouflage a judicial faux pas or a doctrinal quirk. De Gracia
provided an excellent vehicle for an honorable departure from Tac-an
because no attack on the latter was necessary as the former merely
involved other crimes to which the doctrine in Tac-an might only be applied
by analogy. De Gracia did not even intimate the need to reexamine Tacan; on the contrary, it adapted the latter to another category of illegal
possession of firearm qualified by rebellion precisely because the same
legal principle and legislative purpose were involved, and not because De
Gracia wanted to perpetuate an "unfortunate doctrine" or to embellish "the
expanding framework of our criminal law from barnacled ideas which have
not grown apace with conceptual changes over time," as the concurring
and dissenting opinion charges.
The majority now reiterates the doctrine in Tac-an and the subsequent
cases not because it has become hostage to the "inertia of time [which] has
always been the obstacle to the virtues of change," as the concurring and
dissenting opinion finds it to be, but rather because it honestly believes that
Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied in Tac-an
is an "affront on doctrinal concepts of penal laws and assails even the

ordinary notions of common sense," the blame must not be laid at the
doorsteps of this Court, but on the lawmaker's. All that the Court did in Tacan was to apply the law, for there was nothing in that case that warranted
an interpretation or the application of the niceties of legal hermeneutics. It
did not forget that its duty is a merely to apply the law in such a way that
shall not usurp legislative powers by judicial legislation and that in the
course of such application or construction it should not make or supervise
legislation, or under the guise of interpretation modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a construction which is
repugnant to its terms. 45
Murder and homicide are defined and penalized by the Revised Penal
Code 46 as crimes against persons. They are mala in se because malice or
dolo is a necessary ingredient therefor. 47 On the other hand, the offense of
illegal possession of firearm is defined and punished by a special penal
law, 48 P.D. No. 1866. It is a malum prohibitum 49 which the lawmaker, then
President Ferdinand E. Marcos, in the exercise of his martial law powers,
so condemned not only because of its nature but also because of the larger
policy consideration of containing or reducing, if not eliminating, the
upsurge of crimes vitally affecting public order and safety due to the
proliferation of illegally possessed and manufactured firearms, ammunition,
and explosives. If intent to commit the crime were required, enforcement of
the decree and its policy or purpose would be difficult to achieve. Hence,
there is conceded wisdom in punishing illegal possession of firearm without
taking into account the criminal intent of the possessor. All that is needed is
intent to perpetrate the act prohibited by law, coupled, of course, by
animus possidendi. However, it must be clearly understood that this
animus possidendi is without regard to any other criminal or felonious intent
which an accused may have harbored in possessing the firearm. 50
A long discourse then on the concepts of malum in se and malum
prohibitum and their distinctions is an exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice
Regalado in his Concurring and Dissenting Opinion, to wit:
The second paragraph of the aforestated Section 1 expressly and
unequivocally provides for such illegal possession and resultant killing as a
single integrated offense which is punished as such. The majority not only
created two offenses by dividing a single offense into two but, worse, it
resorted to the unprecedented and invalid act of treating the original

offense as a single integrated crime and then creating another offense by

using a component crime which is also an element of the former.
It would already have been a clear case of judicial legislation if the illegal
possession with murder punished with a single penalty have been divided
into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative
powers for this Court to now, as it has done, treat that single offense as
specifically described by the law and impose reclusion perpetua therefor
(since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to
be able to impose the death sentence. For indeed, on this score, it is
beyond cavil that in the aggravated form of illegal possession, the
consequential murder (or homicide) is an integrated element or integral
component since without the accompanying death, the crime would merely
be simple illegal possession of a firearm under the first paragraph of
Section 1.
The second paragraph of Section 1 of P.D. No. 1866 does not warrant and
support a conclusion that it intended to treat "illegal possession and
resultant killing" (emphasis supplied) "as a single and integrated offense" of
illegal possession with homicide or murder. It does not use the clause as a
result or on the occasion of to evince an intention to create a single
integrated crime. By its unequivocal and explicit language, which we quote
to be clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed. (emphasis supplied)
the crime of either homicide or murder is committed NOT AS A RESULT
OR ON THE OCCASION of the violation of Section 1, but WITH THE USE
of an unlicensed firearm, whose possession is penalized therein. There is a
world of difference, which is too obvious, between (a) the commission of
homicide or murder as a result or on the occasion of the violation of
Section 1, and (b) the commission of homicide or murder with the use of an
unlicensed firearm. In the first, homicide or murder is not the original
purpose or primary objective of the offender, but a secondary event or
circumstance either resulting from or perpetrated on the occasion of the
commission of that originally or primarily intended. In the second, the
killing, which requires a mens rea is the primary purpose, and to carry that
out effectively the offender uses an unlicensed firearm.

As to the question then of Mr. Justice Regalado of whether this Court

should also apply the rule enunciated here to P.D. No. 532 (Anti-Piracy and
Anti-Highway Robbery Law of 1974), P.D. No. 533 (Anti-Cattle Rustling
Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing
Stiffer Penalties Therefor), the answer is resoundingly in the negative. In
those cases, the lawmaker clearly intended a single integrated offense or a
special complex offense because the death therein occurs as a result or on
the occasion of the commission of the offenses therein penalized or was
not the primary purpose of the offender, unlike in the second paragraph of
Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:
Sec. 3. Penalties. Any person who commits piracy or highway
robbery/brigandage as herein defined, shall, upon conviction by competent
court be punished by:
a. Piracy. The penalty of reclusion temporal in its medium and maximum
periods shall be imposed. If physical injuries or other crimes are committed
as a result or on the occasion thereof, the penalty of reclusion perpetua
shall be imposed. If rape, murder or homicide is committed as a result or
on the occasion of piracy, or when the offenders abandoned the victims
without means of saving themselves, or when the seizure is accomplished
by firing upon or boarding a vessel, the mandatory penalty of death shall be
imposed.
b. Highway Robbery/Brigandage. The penalty of reclusion temporal in its
minimum period shall be imposed. If physical injuries or other crimes are
committed during or on the occasion of the commission of robbery or
brigandage, the penalty of reclusion temporal in its medium and maximum
periods shall be imposed. If kidnapping for ransom or extortion, or murder
or homicide, or rape is committed as a result or on the occasion thereof,
the penalty of death shall be imposed. (emphasis supplied)
(b) Section 8 of P.D. No. 533 reads in part as follows:
Sec. 8. Penal provisions. Any person convicted of cattle rustling as
herein defined shall, irrespective of the value of the large cattle involved, be
punished by prision mayor in its maximum period to reclusion temporal in
its medium period if the offense is committed without violence against or
intimidation of persons or force upon things. If the offense is committed
with violence against or intimidation of persons or force upon things, the

penalty of reclusion temporal in its maximum period to reclusion perpetua

shall be imposed. If a person is seriously injured or killed as a result or on
the occasion of the commission of cattle rustling, the penalty of reclusion
perpetua to death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
Sec. 3. Penalties. Violations of this Decree and the rules and regulations
mentioned in paragraph (f) of Section 1 hereof shall be punished as
follows:
a. by imprisonment from 10 to 12 years, if explosives are used: Provided,
that if the explosion results (1) in physical injury to person, the penalty shall
be imprisonment from 12 to 20 years, or (2) in the loss of human life, then
the penalty shall be imprisonment from 20 years to life, or death;
b. by imprisonment from 8 to 10 years, if obnoxious or poisonous
substances are used: Provided, that if the use of such substances results
(1) in physical injury to any person, the penalty shall be imprisonment from
10 to 12 years, or (2) in the loss of human life, then the penalty shall be
imprisonment from 20 years to life, or death; . . . (emphasis supplied)
The unequivocal intent of the second paragraph of Section 1 of P.D. No.
1866 is to respect and preserve homicide or murder as a distinct offense
penalized under the Revised Penal Code and to increase the penalty for
illegal possession of firearm where such a firearm is used in killing a
person. Its clear language yields no intention of the lawmaker to repeal or
modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such
a way that if an unlicensed firearm is used in the commission of homicide
or murder, either of these crimes, as the case may be, would only serve to
aggravate the offense of illegal possession of firearm and would not
anymore be separately punished. Indeed, the words of the subject
provision are palpably clear to exclude any suggestion that either of the
crimes of homicide and murder, as crimes mala in se under the Revised
Penal Code, is obliterated as such and reduced as a mere aggravating
circumstance in illegal possession of firearm whenever the unlicensed
firearm is used in killing a person. The only purpose of the provision is to
increase the penalty prescribed in the first paragraph of Section 1
reclusion temporal in its maximum period to reclusion perpetua to death,
seemingly because of the accused's manifest arrogant defiance and
contempt of the law in using an unlicensed weapon to kill another, but

never, at the same time, to absolve the accused from any criminal liability
for the death of the victim.
Neither is the second paragraph of Section 1 meant to punish homicide or
murder with death if either crime is committed with the use of an unlicensed
firearm, i.e., to consider such use merely as a qualifying circumstance and
not as an offense. That could not have been the intention of the lawmaker
because the term "penalty" in the subject provision is obviously meant to
be the penalty for illegal possession of firearm and not the penalty for
homicide or murder. We explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an
aggravating circumstance in homicide or murder. Under an information
charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the second
offense of homicide or murder to death. . . . The essential point is that the
unlicensed character or condition of the instrument used in destroying
human life or committing some other crime, is not included in the inventory
of aggravating circumstances set out in Article 14 of the Revised Penal
Code.
A law may, of course, be enacted making the use of an unlicensed firearm
as a qualifying circumstance. This would not be without precedent. By
analogy, we can cite Section 17 of B.P. Blg. 179, which amended the
Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section provides
that when an offender commits a crime under a state of addiction, such a
state shall be considered as a qualifying aggravating circumstance in the
definition of the crime and the application of the penalty under the Revised
Penal Code.
In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a
legislative intent to decriminalize homicide or murder if either crime is
committed with the use of an unlicensed firearm, or to convert the offense
of illegal possession of firearm as a qualifying circumstance if the firearm
so illegally possessed is used in the commission of homicide or murder. To
charge the lawmaker with that intent is to impute an absurdity that would
defeat the clear intent to preserve the law on homicide and murder and
impose a higher penalty for illegal possession of firearm if such firearm is
used in the commission of homicide or murder.
Evidently, the majority did not, as charged in the concurring and dissenting

opinion, create two offenses by dividing a single offense into two. Neither
did it resort to the "unprecedented and invalid act of treating the original
offense as a single integrated crime and then creating another offense by
using a component crime which is also an element of the former." The
majority has always maintained that the killing of a person with the use of
an illegally possessed firearm gives rise to two separate offenses of (a)
homicide or murder under the Revised Penal Code, and (b) illegal
possession of firearm in its aggravated form.
What then would be a clear case of judicial legislation is an interpretation of
the second paragraph of Section 1 of P.D. No. 1866 that would make it
define and punish a single integrated offense and give to the words WITH
THE USE OF a similar meaning as the words AS A RESULT OR ON THE
OCCASION OF, a meaning which is neither born out by the letter of the law
nor supported by its intent. Worth noting is the rule in statutory construction
that if a statute is clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation, 51 leaving the
court no room for any extended ratiocination or rationalization of the law. 52
Peregrinations into the field of penology such as on the concept of a single
integrated crime or composite crimes, or into the philosophical domain of
integration of the essential elements of one crime to that of another would
then be unnecessary in light of the clear language and indubitable purpose
and intent of the second paragraph of Section 1 of P.D. No. 1866. The
realm of penology, the determination of what should be criminalized, the
definition of crimes, and the prescription of penalties are the exclusive
prerogatives of the legislature. As its wisdom may dictate, the legislature
may even create from a single act or transaction various offenses for
different purposes subject only to the limitations set forth by the
Constitution. This Court cannot dictate upon the legislature to respect the
orthodox view concerning a single integrated crime or composite crimes.
The only apparent obstacle to the imposition of cumulative penalties for
various acts is the rule on double jeopardy. This brings us to the proposition
in the dissenting opinion of Mr. Justice Regalado that the majority view
offends the constitutional bar against double jeopardy under the "sameevidence" test enunciated in People vs. Diaz. 53 He then concludes:
In the cases now before us, it is difficult to assume that the evidence for the
murder in the first charge of aggravated illegal possession of firearm with
murder would be different from the evidence to be adduced in the

subsequent charge for murder alone. In the second charge, the illegal
possession is not in issue, except peripherally and inconsequentially since
it is not an element or modifying circumstance in the second charge, hence
the evidence therefor is immaterial. But, in both prosecutions, the evidence
on murder is essential, in the first charge because without it the crime is
only simple illegal possession, and, in the second charge, because murder
is the very subject of the prosecution. Assuming that all the other
requirements under Section 7, Rule 117 are present, can it be doubted that
double jeopardy is necessarily present and can be validly raised to bar the
second prosecution for murder?
In fact, we can extrapolate the constitutional and reglementary objection to
the cases of the other composite crimes for which a single penalty is
imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the
same offense or either estafa or falsification; or how the accused convicted
of robbery with homicide under Article 294 can be legally charged again
with either of the same component crimes of robbery or homicide; or how
the convict who was found guilty of rape with homicide under Article 335
can be duly haled before the court again to face charges of either the same
rape or homicide. Why, then, do we now sanction a second prosecution for
murder in the cases at bar since the very same offense was an
indispensable component for the other composite offense of illegal
possession of firearm with murder? Why would the objection of non bis in
idim as a bar to a second jeopardy lie in the preceding examples and not
apply to the cases now before us?
We are unable to agree to the proposition. For one, the issue of double
jeopardy is not raised in this case. For another, the so-called "sameevidence" test is not a conclusive, much less exclusive, test in double
jeopardy cases of the first category under the Double Jeopardy Clause
which is covered by Section 21, Article III of the Constitution and which
reads as follows:
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act.
Note that the first category speaks of the same offense. The second refers

to the same act. This was explicitly distinguished in Yap vs. Lutero,
where People vs. Relova 55 quotes the following:

54

from

Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The
first sentence of clause 20, section 1, Article III of the Constitution, ordains
that "no person shall be twice put in jeopardy of punishment for the same
offense." (emphasis in the original) The second sentence of said clause
provides that "if an act is punishable by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for the
same act." Thus, the first sentence prohibits double jeopardy of punishment
for the same offense whereas, the second contemplates double jeopardy of
punishment for the same act. Under the first sentence, one may be twice
put in jeopardy of punishment of the same act, provided that he is charged
with different offenses, or the offense charged in one case is not included
in, or does not include, the crime charged in the other case. The second
sentence applies, even if the offenses charged are not the same, owing to
the fact that one constitutes a violation of an ordinance and the other a
violation of a statute. If the two charges are based on one and the same
act, conviction or acquittal under either the law or the ordinance shall bar a
prosecution under the other. Incidentally, such conviction or acquittal is not
indispensable to sustain the plea of double jeopardy of punishment for the
same offense. So long as jeopardy has been attached under one of the
informations charging said offense, the defense may be availed of in the
other case involving the same offense, even if there has been neither
conviction nor acquittal in either case.
Elsewise stated, where the offenses charged are penalized either by
different sections of the same statute or by different statutes, the important
inquiry relates to the identity of offenses charged. The constitutional
protection against double jeopardy is available only where an identity as
shown to exist between the earlier and the subsequent offenses charged. 56
The question of identity or lack of identity of offenses is addressed by
examining the essential elements of each of the two offenses charged, as
such elements are set out in the respective legislative definitions of the
offenses involved. 57
If may be noted that to determine the "same offense" under the Double
Jeopardy Clause of the Fifth Amendment of the Constitution of the United
States of America which reads:
[N]or shall any person be subject for the same offense to be twice put in

jeopardy of life or limb. . .

the rule applicable is the following: "where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is
whether each provision requires proof of an additional fact which the other
does not." 58
The Double Jeopardy Clause of the Constitution of the United States of
America was brought to the Philippines through the Philippine Bill of 1 July
1902, whose Section 5 provided, inter alia:
[N]o person for the same offense shall be twice put in jeopardy of
punishment . . . .
This provision was carried over in identical words in Section 3 of the Jones
Law of 29 August 1916. 59 Then under the 1935 Constitution, the Jones
Law provision was recast with the addition of a provision referring to the
same act. Thus, paragraph 20, Section 1, Article III thereof provided as
follows:
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the
same act.
This was adopted verbatim in Section 22, Article IV of the 1973 Constitution
and in Section 21, Article III of the present Constitution.
This additional-element test in Lutero and Relova and in Blockburger,
Gore, and Missouri would safely bring the second paragraph of Section 1
of P.D. No. 1866 out of the proscribed double jeopardy principle. For
undeniably, the elements of illegal possession of firearm in its aggravated
form are different from the elements of homicide or murder, let alone the
fact that these crimes are defined and penalized under different laws and
the former is malum prohibitum, while both the latter are mala in se. Hence,
the fear that the majority's construction of the subject provision would
violate the constitutional bar against double jeopardy is unfounded.
The penalty which the trial court imposed in Criminal Case No. 8179 for
illegal possession of firearm in its aggravated form must, however, be
modified. The penalty prescribed by P.D. No. 1866 is death. Since Section

19(1), Article III of the Constitution prohibits the imposition of the death
penalty, the penalty next lower in degree, reclusion perpetua, must be
imposed.
WHEREFORE, the instant appeal is DISMISSED, and the challenged
decision of 30 September 1993 of Branch 1 of the Regional Trial Court of
Bohol finding accused-appellant DANIEL QUIJADA y CIRCULADO guilty
beyond reasonable doubt of the crime of murder in Criminal Case No. 8178
and of illegal possession of firearm in its aggravated form in Criminal Case
No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended
by the Order of 29 October 1993, is sustained; however, the penalty
imposed in the second case is changed to Reclusion Perpetua from the
indeterminate penalty ranging from Seventeen (17) years, Four (4) months,
and One (1) day, as minimum, to Twenty (20) years and One (1) day, as
maximum.
Costs de oficio.
SO ORDERED.
Padilla, Bellosillo, Melo, Francisco, Panganiban and Torres, Jr., JJ.,
concur.

Separate Opinions
HERMOSISIMA, JR., J.: concurring

Murder, most foul for betraying a depraved heart, is the inordinate killing of
a human being, unlawfully and with premeditated malice, wilfully,
deliberately, a felony described in and penalized under Article 248 of the
Revised Penal Code.
On the other hand, the unlawful possession of an unlicensed firearm, that
artifice consisting essentially of a straight tube to propel a shot, shell or
bullet by the explosion of gunpowder, is penalized as the offense of Illegal
Possession of Unlicensed Firearm by Presidential Decree No. 1866 of
martial law vintage.
Against accused-appellant Daniel Quijada y Circulado were filed the two
aforestated cases: Murder, Criminal Case No. 8178 and Illegal Possession
of an Unlicensed Firearm, Criminal Case No. 8179 "which firearm was
carried by the said accused outside of his residence and was used by him
in committing the crime of murder" in violation of paragraph 2, Section 1, of
Presidential Decree (P.D.) No. 1866. After a joint trial, the trial court
convicted accused-appellant in both cases and sentenced him to suffer the
penalty of Reclusion Perpetua for the crime of Murder and imprisonment a
period of Seventeen (17) Years, Four (4) Months and One (1) Day, as
minimum, to Twenty (20) Years and One (1) Day, as maximum, for the
offense of Qualified Illegal Possession of Unlicensed Firearm penalized
under the aforecited P.D. No. 1866.
There is no question that, as found by the majority, the crime of Murder and
the offense of Illegal Possession of Firearm had been established by
evidence beyond the shadow of doubt.
While the majority affirms the twin conviction of the accused-appellant in
both Criminal Case No. 8178 for Murder and Criminal Case No. 8179 for
Illegal Possession of an Unlicensed Firearm, the minority asserts the
dissenting opinion that, as in People vs. Barros, 1 accused-appellant may
only be convicted of the offense of Illegal Possession of Unlicensed
Firearm in its aggravated form, inferring that the crime of Murder has been
absorbed by that offense or rather that the two (2) crimes may be said to
have been complexed with each other.
While the teleological debate on whether criminal punishment is justified as
retribution or as reformation continually rages, hardly disputable is the
static view and unchanged reality that the primordial justification for

punishing any man is that he has broken the law. While in Anglo-American
jurisdictions, there exist what are known as common law offenses, in our
jurisdiction, no act is a crime unless it is made so by statute. 2 Every law
enacted by the legislature for the restraint and punishment of crimes and
for the preservation of the public peace, health and morals comes within
the police power of the State. 3
The right of prosecution and punishment for a crime is one of the attributes
that by a natural law belongs to the sovereign power instinctively charged
by the common will of the members of society to look after, guard and
defend the interests of the community, the individual and social rights and
the liberties of every citizen and the guaranty of the exercise of his rights. 4
In the exercise of its right, duty and power to determine and define crimes
and their corresponding penalties, the lawmaking body is initially and
usually guided by the general condition of penal liability under the legal
maxim, "actus non facit reum, nisi mens sit rea," which, if freely translated,
means that "an act is not criminal unless the mind is criminal." On the basis
of this, which is commonly known as the mens rea doctrine, our Revised
Penal Code was enacted to largely penalize unlawful acts accompanied by
evil intent which are denominated en masse as crimes mala in se. The
paramount consideration here is the existence of a malicious intention
borne out by the concurrence of freedom, intelligence and intent which
altogether make up the "criminal mind" behind the resultant "criminal act".
It is not always, however, that the evil to society anent a criminal act
depends upon the state of mind of the offender. And no less valid, critical
and indispensable is the prerogative of the legislature, through special
enactments, to forbid the doing of a particular act and legislate the
commission of such act to be a crime, regardless of the intent of the doer.
In many crimes, made by statutory enactment, the intention of the person
who commits the crime is entirely immaterial. This is necessarily so. If it
were not, the statute as a deterrent influence would be substantially
worthless. It would be impossible of execution . In many cases the act
complained of is itself that which produces the pernicious effect which the
statute seeks to avoid. In those cases, the pernicious effect is produced
with precisely the same force and result whether the intention of the person
performing the act is good or bad . . . It is quite different from that large
class of crimes, made such by the common law or by statute, in which the
injurious effect upon the public depends upon the corrupt intention of the

person perpetrating the act. 5

In general, it may be said that there must be malus animus or a criminal
intent. But there is also a class of crimes known as crimes mala prohibita
which, on the broad grounds of public policy, criminalize certain acts
without the usual requisite proof of the intent of the actor to commit the
crime.
In the case of The State vs. McBrayer (98 N.C., 623) this court stated:
It is a mistaken notion that positive, willful intent to violate the criminal law
is an essential ingredient in every criminal offense, and that where there is
an absence of such intent there is no offense; this is especially true as to
statutory offenses. When the statute plainly forbids an act to be done, and
it is done by some person, the law implies conclusively the guilty intent,
although the offender was honestly mistaken as to the meaning of the law
he violates. When the language is plain and positive, and the offense is not
made to depend upon the positive, willful intent and purpose, nothing is left
to interpretation.
xxx xxx xxx
Care must be exercised in distinguishing the difference between the intent
to commit the crime and the intent to perpetrate the act The accused did
not consciously intend to commit a crime; but he did intend to commit an
act, and that is, by the very nature of things, the crime itself-intent and all.
The working of the law is such that the intent and the act are inseparable.
The act is the crime. 6
Indeed, to distinguish between crimes mala in se and mala prohibita by
simply pointing out that the former refer to felonies in the Revised Penal
Code while the latter are punished under special laws, does not amount to
much, for there are indeed felonies that are penalized regardless of the
felon's criminal intentions, and conversely, there are also special offenses
that require proof of criminal intent.
Whether or not in a given case the statute is to be construed as forbidding
the doing of an act and criminalizing the same without regard to the intent
of the perpetrator of the act, is to be determined by the court by considering
the subject matter of the prohibition as well as the language of the statute,
thereby ascertaining the intention of the lawmaker. The index of whether or

not a crime is malum prohibitum is not its form, that is, whether or not it is
found in the Revised Penal Code or in a special penal statute, but the
legislative intent that underlies its continuing existence as part of the law of
the land.
Considering the nature of the offense, the purpose to be accomplished, the
practical methods available for the enforcement of the law, and such other
matters as throw light upon the meaning of the language, the question in
interpreting a criminal statute is whether the intention of the legislature was
to make knowledge of the facts an essential element of the offense, or to
put upon everyone the burden of finding out whether his contemplated act
is prohibited, and of refraining from it if it is. 7
In this light, we have not just a few times precisely delineated the malum
prohibitum nature of P.D. No. 1866, which is a codification of the laws on
unlawful possession of unlicensed firearms, among others.
As has been aforesaid, in determining whether or not an offense is malum
prohibitum or not, the relevant inquiry must concern the legislative intent as
to the requirement of criminal intent or lack thereof. In this respect, the
discussion of Justice Regalado in People vs. De Gracia 8 is appropriate:
The first issue to be resolved is whether or not intent to possess is an
element of the offense punishable under Presidential Decree No. 1866
and, if so, whether appellant . . . did intend to illegally possess firearms and
ammunition
The rule is that ownership is not an essential element of illegal possession
of firearms and ammunition. . . .
But is the mere fact of physical or constructive possession sufficient to
convict a person for unlawful possession of firearms or must there be an
intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good faith and
absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A person may not

have consciously intended to commit a crime; but he did intend to commit

an act, and that act is, by the very nature of things, the crime itself. In the
first (intent to commit the crime), there must be criminal intent; in the
second (intent to perpetrate the act), it is enough that the prohibited act is
done freely and consciously.
In the present case, a distinction should be made between criminal intent
and intent to possess. While mere possession, without criminal intent, is
sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the
part of the accused. Such intent to possess is, however, without regard to
any other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to the
intention of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under Presidential
Decree No. 1866. 9
In its enactment, P.D. No. 1866 was undoubtedly intended as a substantial
measure in response to the perennial problem of law enforcement and
public order and safety, Thus, we always pointed out that P.D. No. 1866
was passed because of an upsurge of crimes vitally affecting public order
and safety due to the proliferation of illegally possessed and manufactured
firearms, which crimes have resulted in loss of human lives, damage to
property and destruction of valuable resources of the country. 10
The aforecited public policy concern justified the blanket prohibition in P.D.
No. 1866 against mere possession of unlicensed firearms, among others,
without regard to the criminal intent of the possessor. Indeed, what is being
punished is the illegal possession, among others, of unlicensed firearms.
What the decree does is to define the offense and provide for the penalty
that may be imposed, specifying the qualifying circumstances that would
aggravate the offense. There is no encroachment on the power of the court
to determine after due hearing whether the prosecution has proved beyond
reasonable doubt that the offense of illegal possession of firearms has
been committed and that the qualifying circumstances attached to its has
been established also beyond reasonable doubt as the Constitution and
judicial precedents require. 11
Insofar as material to the present case, what is penalized is the sole,
simple act of a person who shall, among others, "unlawfully possess any
firearm". The gravamen of the offense is the fact of possession of a firearm

without a license or authority for such possession. 12 It is only the offense of

Illegal Possession of Unlicensed Firearm that is, in the corporeal and
material sense, provided for and defined in Section 1 of P.D. No. 1866. The
penalty therefor, however, is another matter.
It is undisputed that P.D. No. 1866 was validly enacted in 1983 in the
exercise of legislative powers by then President Marcos under the 1973
Constitution, which powers inherently included the prerogative to prohibit
certain acts perceived by the lawmaker to be substantially prejudicial to the
public interest. Thus, Section 1 forbids the possession by any person of a
firearm for which he does mot have the proper license and/or authority. The
sole act forbidden, prohibited and thereby criminalized is the illegal
possession of an unlicensed firearm. That is all. However, while the offense
penalized is singular, the penalties for such offense are plural and are
distinguished from each other by certain circumstances which the
lawmaker considered to be valid reasons to impose penalties heavier than
the others. Thus, as a whole, the pertinent portion of said decree provides,
to wit:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
Be Used in the Manufacture of Firearms or Ammunition. The penalty of
reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with crimes of rebellion, insurrection, or subversion, the penalty
of death shall be imposed.
xxx xxx xxx 13
The circumstances (1) that homicide or murder is committed with the use of
an unlicensed firearm and (2) that the illegal possession of unlicensed
firearm is committed in furtherance of, or incident to, or in connection with
the crimes of rebellion, insurrection or subversion, only qualify or aggravate
the offense of Illegal Possession of Unlicensed Firearm for purposes of

increasing the penalty therefor. These circumstances do not create another

offense or a special kind of illegal possession or another form of illegal
possession. When either of such circumstances is attendant under the
premises of a case, such circumstance only authorizes and justifies the
imposition of a higher penalty. It only has the effect of upgrading the
penalty and not of supplying an additional, separate element of a new or
another offense. Thus, there is no such thing as a special complex crime of
illegal possession of unlicensed firearm used in homicide, 14 or murder for
that matter. Neither could we have conceived what we have been calling
the aggravated form of illegal possession 15 or qualified illegal possession,
16
to be a separate, distinct and independent offense from illegal
possession without any qualifying circumstance. Even Justice Regalado
concedes in his Separate Opinion in People vs. Barros 17 that "the
nomenclature of aggravated illegal possession is used just for expediency,
in the same manner as that of 'qualified rape' under Article 335 when the
sexual assault is attended by the circumstances therein which result in
increased penalties."
In People vs. Barros, 18 we were mainly concerned with the issue as to
whether or not, whenever a killing is effected with the use of an unlicensed
firearm, the malefactor should be punished separately for both offenses,
with the unlawful taking of life to be proceeded against under the
corresponding provision of the Revised Penal Code and the illegal
possession of the firearm under P.D. No. 1866. There, we decided that said
malefactor ought only to be punished for qualified illegal possession of
firearm essentially because the two crimes are not altogether separate or
disconnected from each other both in law and in fact and could thus be
viewed as a situation bordering close to or approximating the concept of
complex crime proper and/or as a situation where the graver offense (of
qualified illegal possession) can be said to have absorbed the lesser
offense (of homicide or murder) which constitutes the essential element
siring the so-called "capital offense of the aggravated form of illegal
possession".
There is no time more appropriate to re-examine the Barros ruling than
now, for to persist in it would result in an absurd situation that cannot be
justified even under the hallowed principle of stare decisis.
Merely that two crimes are not altogether separate or disconnected from
each other both in law and in fact, is of no moment. In the first place,
should they in law and in fact be altogether separate or disconnected from
each other to foreclose their absorption into or complexing with, each

other? In the second place, that very statement provides a basic

presumption and reality that must be fully understood insofar as its
implications and consequences are concerned. They are precisely two
crimes, and these two crimes are punished under two separate, distinct
and independent laws. Punishment is a corollary of lawbreaking by a
member of society whose law is broken. 19 In this case, there are two
separate laws involved, two separate crimes punished by two laws, and
two counts of breaking the law constituting two crimes for which two
separate penalties are provided. Concededly, accused-appellant performed
only one action which was made basis for two Informations each charging
a distinct offense. But it is also a well-established rule in this jurisdiction
that a single act may offend against two (or more) entirely distinct and
unrelated provisions of law, and if one provision requires proof of an
additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar
prosecution under the other. Phrased elsewise, where two different laws (or
articles of the same code) define two crimes, prior jeopardy as to one of
them is no obstacle to a prosecution of the other, although both offenses
arise from the same facts, if each crime involves some important act which
is not an essential element of the other. 20
Where there are, as in this case, two crimes punished by two distinct laws
enacted for absolutely different purposes, and both laws are clear and
unambiguous, and no absurdity or unreasonableness is evident from the
application of both, it is not the proper function of the court to change or
alter in any way the state of things thereunder. That it is desirable,
equitable, wise, humane or charitable to find a way to decrease the penalty
or avoid imposition of the penalties under the two laws, is not denied, but at
most we can only "legislate interstitially . . . confined from molar to
molecular motions" 21 and clear up ambiguities or fill in the gaps. Gaps in
our conscience and our personal convictions must be found and provided
some other legitimate channel for expression and realization.
The law on complex crime proper is not applicable here. One of the
reasons often cited in proscribing complexing a crime under the Revised
Penal Code and an offense under a special law is that the latter is not
punishable by a penalty divisible into periods. Now following our ruling in
People vs. Simon, 22 the suppletory effect of the Revised Penal Code upon
P.D. No. 1866 is now starkingly broadened because though it is a special
penal law, the penalties provided therein are actually taken from the
Revised Penal Code in their technical nomenclature, duration, correlation

and legal effects, such that the same treatment as that respecting Revised
Penal Code penalties may now be given to penalties under certain special
laws.
However, notwithstanding the import of our ruling in the said case of
People vs. Simon, it still cannot be said that there is no longer any obstacle
in complexing murder with qualified illegal possession because the very
essence and nature of each of these crimes remains unchanged and
unaffected. Murder, or for that matter, homicide, remains distinct from the
crime of Illegal Possession of Unlicensed Firearm where the firearm is
used in perpetrating the killing. The defendant in such cases committed two
different acts with two separate criminal intents, to wit, the desire to take
unlawfully the life of a person and the sheer violation of the law which
prohibits the possession of a firearm without the required permit. 23 In other
words, there is in this instant case a case of plurality of crimes where
accused-appellant performed one act which resulted in two different crimes
penalized under two separate laws which have distinct purposes and are
independent from each other.
Neither does the doctrine of absorption obtain in this case. For absorption
to take place under the circumstances thereof, there must be two materially
distinct and separate offenses involved murder and what has been
referred to as the capital offense of the aggravated form of illegal
possession of unlicensed firearm. As has been explained hereinabove,
however, the offense defined in Section 1 of P.D. No. 1866 is plainly, simply
illegal possession of unlicensed firearm. The circumstance of homicide or
murder only operates to upgrade the penalty for the offense of illegal
possession of unlicensed firearm and does not as it has not been intended
to, sire and penalize a second offense or the so-called capital offense of
the aggravated form of illegal possession of unlicensed firearm. The
offense of illegal possession, as such, in turn, cannot validly absorb murder
or homicide because the latter is not an element of the former. Nothing
more indubitably evidences the intent of the legislature to maintain the
integrity and effectivity of the penal provision for murder and homicide, on
the one hand, and of Section 1 of P.D. No. 1866, on the other, than the very
pertinent provision of said decree which neither created any special
complex crime nor amended nor repealed the provisions on murder or
homicide nor defined a separate offense of an aggravated form of illegal
possession.
We are not unaware of the fundamental legal principle that every doubt in
the construction of a criminal statute should be resolved in favor of any

person accused of a crime. To mete out a lesser penalty is certainly

favorable to an accused; such, however, presupposes the existence of
some doubt in the application of the law pertinent to his circumstances. In
the instant case, there is no ambiguity, ambivalence, confusion, doubt or
question respecting the applicable laws. The penalties provided for by the
Revised Penal Code for the crime of Murder and by P.D. No. 1866 for the
offense of Illegal Possession of Unlicensed Firearm are not under attack
And it could not also be said that the application of said laws and the
imposition of said penalties bring about an undeniable situation
characterized by such absurdity, unreasonableness, and socially, morally or
philosophically virulent consequences as to justify the utter disregard of
said laws and their substantive provisions regarding penalties. Certainly,
there must be a limit to what the court may do to remedy what it perceives
as a difficult but avoidable situation. The consequences of the application
of our valid, subsisting laws, after all, do not always have to satisfy our own
standards of what is just and fair.
Finally, with the enactment of Republic Act (R.A.) No. 7659 24 reimposing
the death penalty for certain heinous crimes, an anomalous situation may
merge in our midst if we apply Barros. Said Act enumerated particular
crimes under the Revised Penal Code and specific offenses under special
laws that shall henceforth contain provisions imposing the death penalty
under certain circumstances. One of the crimes enumerated thereunder is
Murder, which may now be punished by death. 25 The death penalty may
now also be meted out in, among others, the case of drug-related crimes
as provided for in the Dangerous Drugs Act of 1972 26 and the crimes
provided for in the Anti-Carnapping Act of 1972. 27
Of utmost significance is the fact that not included in the enumeration of
special offenses where the death penalty has been revived, is P.D. No.
1866. R.A. 7659 being a penal statute which must, as a rule, be strictly
construed against the State, the inescapable and inevitable conclusion is
that Congress, in enacting R.A. No. 7659, did not intend to revive the death
penalty provision found in the second and third paragraphs of Section 1 of
P.D. No. 1866.
The foregoing makes for a tremendous import. On the one hand, were we
to insist that murder may be complexed with or absorbed by illegal
possession of unlicensed firearm where said firearm is used in the
commission of murder or homicide, a person convicted for said offense
may only be punished with a penalty no higher than reclusion perpetua,
since R.A. No. 7659 did not revive the death penalty provision in Section 1
of P.D. No. 1866. On the other hand, a person who has used a licensed
firearm in committing murder may be punished with death if there were

sufficient aggravating circumstances attendant in the killing, since R.A. No.

7659 restored the death penalty for the crime of murder. No much deeper
analysis is needed to realize that an anomalous, absurd situation confronts
us where the use of an unlicensed firearm in killing is rewarded by a lesser
penalty. Herein lies real injustice. And we cannot scale down this
resounding message which indifference on our part would impart: if "would
be" criminals were to kill, they ought to kill with unlicensed firearms so that
they will fall within the purview of P.D. No. 1866 with respect to which the
death penalty has not been restored and not within the provisions of the
Revised Penal Code for murder, for then depending upon the nature and
number of the aggravating circumstances that may attend such crimes,
they face the possibility of being sentenced to death, an eventuality that
could never be under P.D. No. 1866.
Certainly, we cannot close our eyes to this absurd situation, and it will be
irresponsible of us to allow the absurdity to persist. We should not
stubbornly cling to the illusion that murder and illegal possession of
unlicensed firearm used in murder may be complexed with each other or
absorbed into each other. Anyway, they are not so disconnected from each
other that doing so would translate into a lower penalty. For us to cling to
such an illusion would be tantamount a complete disregard of legal
concepts and principles in the realm of crime and punishment that has
remain good, sound, valid law.
WHEREFORE, the conviction of the accused by the court a quo of the two
(2) crimes aforesaid, that is, for Murder and Illegal Possession of
Unlicensed Firearm, should be, as it is, affirmed.

REGALADO, J.: concurring and dissenting

I concur in the majority opinion only insofar as it holds accused-appellant

Daniel Quijada y Circulado guilty of the crime of murder with the use of an
illegally possessed firearm and punishes him therefor. I confess, however,
that I cannot in conscience reconcile myself with the unfortunate doctrine
first announced in People vs. Tac-an, 1 and now reiterated by the majority,
that said appellant should be twice penalized for two supposedly distinct
offenses involving (1) the murder of the victim with an illegally possessed
firearm, under Presidential Decree No. 1866 and (2) the same murder of
that same victim, this time under Article 248 of the Revised Penal Code.
I have heretofore rejected this very same dual verdicts of conviction in my
concurring opinion in People vs. Barros, 2 which found favor with all my
brethren in the Second Division, including Chief Justice Andres R. Narvasa
acting as the ponente of the decision in that case and in his capacity as the
Chairman of that Division. Indeed, I feel quite strongly that through the play
on words that illegal possession of firearm used in a killing is punishable
under Presidential Decree No. 1866, while the same killing with the same
illegally possessed firearm is separately punished under Article 248 of the
Revised Penal Code, we have been beguiled by the semantical tyranny of
shifting emphases.
I endeavored to analyze what I considered the error of that approach and
thereby expose the speciously camouflaged theory espoused in Tac-an
which I believe, and still do, constitutes an affront on doctrinal concepts of
penal law and assails even the ordinary notions of common sense. To
avoid excursive reading, I quote my humble explanation in Barros
somewhat at length:
Under the dispositions heretofore made by the Court involving the crimes
of homicide or murder through the use of an illegally possessed firearm,
and the same is true with the case at bar, the following queries may be
posed:
1. Should the crimes of homicide or murder, which are the end results, be
punished separately from and in addition to the liability for illegal
possession of the firearm as the instrument or the means employed?
2. On the other hand, should not the principal sole offense be the
aggravated form of illegal possession of a firearm under the second
paragraph of Section 1 of Presidential Decree No. 1866, with the homicide
or murder being absorbed therein as an integral element of the crime in its
aggravated form?
3. If either homicide or murder and illegal possession of firearm are so
charged in one and the same information, should they be considered and

punished as a single offense of homicide or murder with the use of an

unlicensed firearm, or as a case of aggravated illegal possession of firearm
resulting in homicide or murder, with the death penalty to be imposed in
either case?
4. If homicide or murder is charged in a separate information while
aggravated illegal possession of firearm is made the subject of a separate
indictment filed simultaneously with or prior or subsequent to the former,
but with the respective informations on the killing and the illegal possession
mutually alleging facts regarding the other offense as an attendant
circumstance, should the accused be held liable for two distinct crimes
regardless of whether the cases are jointly tried by the same court or
separately by the two courts where the informations were independently
filed?
On the first question, it is true that from the theoretical concept of the
requisite mens rea, the killing as the result of the criminal design arose
from a specific criminal intent, that is, the animus interficendi or intent to
kill. The illegal possession of the firearm requires a discrete and specific
intent to possess the weapon, which is the animus possidendi, coupled
with the physical possession thereof.
It would, therefore, appear at first blush that the two offenses having arisen
from different criminal intents, this would be, under the philosophical bases
for concurso de delitos, a case of material or real plurality under which
different crimes have been committed and for each of which a separate
criminal liability attaches. The flaw in this approach, however, is that
although two crimes have been committed, they are not altogether
separate or disconnected from each other both in law and in fact. The
illegally possessed firearm having been the weapon used in the killing, the
former was at least the necessary, although not an indispensable, means
to commit the other.
The situation thus borders closer to the concept of a complex crime proper,
technically known as a delito complejo, rather than to the postulate of two
separate crimes. It is true that former doctrines were to the effect that there
can be no complex crime where one of the component offenses is
punished by a special law. The rationale therefore was that in a complex
crime, Article 48 of the Code prescribes that the penalty shall be for the
graver offense to be applied in its maximum period. Since, at that time, the
penalties for crimes provided in special laws were not divided into periods,
it would be impossible to apply Article 48.

That ratiocination no longer applies now, specifically with respect to the

ease at bar, since the penalties in Presidential Decree No. 1866 were all
taken from the scale of penalties in the Code. The only possible difficulty in
this novatory approach would be on the first kind of complex crime, that is,
the delito compuesto since it exists "(w)hen a single act constitutes two or
more grave or less grave felonies." The use of that particular term for the
delicts committed bars the application of that form of complex crime to
offenses under Presidential Decree No. 1866, since "felonies" are offenses
provided and defined in the Code.
That objection would not, however, apply to a delito complejo since it is
sufficient therefor that "an offense is a necessary means for committing the
other." By these considerations, however, the writer does not mean to imply
that a killing through the use of an illegally-possessed firearm is a delito
complejo under Article 48 of the Code. As was carefully stated, such an
offense merely borders closer to or approximates the concept of a delito
complejo, but it thereby emphasizes the thesis that the offenses should not
be considered as separate crimes to be individually punished under the
principle of material plurality.
This premise accordingly brings up the second query as to whether or not
the crime should properly be the aggravated illegal possession of an
unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm
punished by death under the second paragraph of Section 1, Presidential
Decree No. 1866, and it is on this point that the writer dissents from the
holding which would impose a separate penalty for the homicide in addition
to that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to
the accused, the Court has correctly held that to be the simple possession
punished with reclusion temporal in its maximum period to reclusion
perpetua in the first paragraph of Section 1. Where, complementarily, the
unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the
graver offense of aggravated illegal possession. In other words, the
homicide or murder constitutes the essential element for integrating into
existence the capital offense of the aggravated form of illegal possession
of a firearm. Legally, therefore, it would be illogical and unjustifiable to use
the very same offenses of homicide or murder as integral elements of and
to create the said capital offense, and then treat the former all over again
as independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.

The situation contemplated in the second query is, from the punitive
standpoint, virtually of the nature of the so-called "special complex crimes,"
which should more appropriately be called composite crimes, punished in
Article 294, Article 297 and Article 335. They are neither of the same legal
basis as nor subject to the rules on complex crimes in Article 48, since they
do not consist of a single act giving rise to two or more grave or less grave
felonies nor do they involve an offense being a necessary means to commit
another. However, just like the regular complex crimes and the present
case of aggravated illegal possession of firearms, only a single penalty is
imposed for each of such composite crimes although composed of two or
more offenses.
On the other hand, even if two felonies would otherwise have been covered
by the conceptual definition of a complex crime under Article 48, but the
Code imposes a single definite penalty therefor, it cannot also be punished
as a complex crime, much less as separate offenses, but with only the
single penalty prescribed by law. Thus, even where a single act results in
two less grave felonies of serious physical injuries and serious slander by
deed, the offense will not be punished as a delito compuesto under Article
48 but as less serious physical injuries with ignominy under the second
paragraph of Article 265. (People vs. Lasala, L-12141, January 30, 1962, 4
SCRA 61.) The serious slander by deed is integrated into and produces a
graver offense, and the former is no longer separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as
well as the discussion on complex and composite crimes, is that when an
offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority
would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is
more of a question of classification for purpose of the other provisions of
the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included
in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually sourced from
the very provisions of Presidential Decree No. 1866 which sought to
"consolidate, codify and integrate" the various laws and presidential
decrees to harmonize their provisions" which "must be updated and revised
in order to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlying the provisions
of the Anti-Carnapping Act of 1972 (R.A. No. 6539, August 26, 1972),
wherein the principal crime to be charged is still carnapping, although the

penalty therefore is increased when the owner, driver or occupant of the

carnapped vehicle is killed. The same situation, with escalating punitive
provisions when attended by a killing, are found in the Anti-Piracy and AntiHighway Robbery Law of 1974 (P.D. No. 532, August 8, 1974) and the AntiCattle Rustling Law of 1974 (P.D. No. 533, August 8, 1974), wherein the
principal crimes still are piracy, highway robbery and cattle rustling. Also, in
the matter of destructive arson (Article 320, Revised Penal Code, as last
amended by R.A. No. 7659), the principal offense remains as arson
although the same becomes a capital offense when inter alia, death results
as a consequence of the commission of any of the acts punished under
said article of the Code.
In the present case, the academic value of specifying whether it is a case
of illegal possession of firearm resulting in homicide or murder, or,
conversely, homicide or murder through the illegal possession and use of
an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken
either way, the penalty for aggravated illegal possession of a firearm is the
single indivisible penalty of death, in which case the provision on recidivism
would not apply. If, however, the illegal possession is not established but
either homicide or murder is proved, then the matter of recidivism may
have some significance in the sense that, for purposes thereof, the
accused was convicted of a crime against persons and he becomes a
recidivist upon conviction, or another crime under the same title of the
Code.
Lastly, on the matter of the offense or offenses to be considered and the
penalty to be imposed when the unlawful killing and the illegal possession
are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render
a joint decision thereon, imposing a single penalty for aggravated illegal
possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either
simple illegal possession, homicide or murder per se. The same procedural
rule and substantive disposition should be adopted if one information for
each offense was drawn up and these informations were individually
assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately
from the homicide or murder could be susceptible of abuse since it entails
undue concentration of prosecutorial powers and discretion. Prefatorily, the
fact that the killing was committed with a firearm will necessarily be known
to the police or prosecutorial agencies, the only probable problem being the
determination and obtention of evidence to show that the firearm is

unlicensed.
Now, if a separate information for homicide or murder is filed without
alleging therein that the same was committed by means of an unlicensed
firearm, the case would not fall under Presidential Decree No. 1866. Even if
the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use
of a firearm by itself, even if proved in that case, would not affect the
accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the
prosecution intending to file thereafter the charge for homicide or murder
but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other
hand, the separate and subsequent prosecution for homicide or murder
prospers, the objective of Presidential Decree No. 1866 cannot be
achieved since the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the
proposition that the real offense committed by the accused, and for which
sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible
problems projected herein may be minimized or obviated if both offenses
involved are charged in only one information or that the trial thereof, if
separately charged, be invariably consolidated for joint decision. Conjointly,
this is the course necessarily indicated since only a single composite crime
is actually involved and it is palpable error to deal therewith and dispose
thereof by segregated parts in piecemeal fashion. (emphasis supplied, with
some footnotes in the original opinion being incorporated in the text by way
of documentation.)
With appropriate respect for the opinions en contra, I take this opportunity
not only to elaborate upon and further clarify my aforequoted views in
Barros but, hopefully, to also cleanse the expanding framework of our
criminal law from ideas which have not grown apace with conceptual
changes over time.
My position in Barros is challenged as being a novel theory which sets
aside the doctrine followed in some cases previously decided by the Court
and the rationale on which they were based. That is understandable, since
the inertia of time has always been the obstacle to the virtues of change.
That mind-set appears to predominate in the action of the majority in the
instant cases.

However, it is precisely for that reason that we are now reviewing those
doctrines, as we have done in a number of cases before, instead of taking
a stance of infallibility. And, if it does turn out that we are mistaken, then in
law and in conscience we must act accordingly, for, as has been said, the
beauty of a mistake is that it can be corrected; the tragedy is that it call be
perpetuated.
I
1. It is obvious that our present problem had its origin in the aforecited case
of People vs. Tac-an where the controversial theory was first laid down that
since one offense (illegal possession of an unlicensed firearm) is penalized
under a special statute while the other (murder) is punished under the
Revised Penal Code, they can be validly prosecuted and punished
separately. The trial court imposed the death penalty in each of said cases,
the offenses having been committed in 1984 with the decision rendered
therein in 1986, but this Court modified those sentences to two penalties of
reclusion perpetua because of the supervenience of the 1987 Constitution.
Significantly, it was explicitly accepted therein that "(a)lthough the
circumstance that human life was destroyed with the use of an unlicensed
firearm is not an aggravating circumstance . . . it may still be taken into
account to increase the penalty to death (reclusion perpetua under the
1987 Constitution) because of the explicit provision of P.D. No. 1866."
2. That mother case of Tac-an gave birth to a progeny of identically-based
decisions, the first being People vs. Tioson 3 where, in addition to the
rationale that the offenses were punished under separate laws, the theory
of separate penalties was further sought to be justified thus: "It does not,
however, follow that the homicide or murder is absorbed in the offense;
otherwise an anomalous absurdity results whereby a more serious crime
defined and penalized in the Revised Penal Code is absorbed by a
statutory offense, which is just a malum prohibitum."
3. Next came People vs. Caling 4 which is notable for lucidly laying down
the distinction between what it categorized for easy reference as the
simple and aggravated forms of illegal possession of unlicensed firearms,
although it adhered to the theory of separate offenses where a killing is
involved but hewing only to the reason that this is because these offenses
are punished by separate laws, as theorized in Tac-an. In Caling, however,
the accused was acquitted and no application of penalties was actually
made.
4. People vs. Jumamoys 5 sustained separate convictions for murder and
the aggravated form of illegal possession of an unlicensed firearm on the
same rationale as Tioson, with an added advertence to People vs.
Doriguez 6 that such separate convictions will theoretically not run afoul of

the prohibition against double jeopardy.

5. This was followed by People vs. Deunida 7 where, on two charges for
murder and aggravated illegal possession of firearms, the accused was
convicted only of the latter offense since the prosecution withdrew the
charge for murder. The Court, in this case, considered the withdrawal of the
indictment for murder as erroneous on the bases of the doctrines in Tac-an,
Caling and Tioson.
6. In People vs. Somooc, 8 the accused who committed homicide with the
use of an illegally possessed unlicensed firearm was charged with and
convicted of the aggravated form of illegal possession and punished by
reclusion perpetua since the offense was committed in 1988. The Court
called attention to the doctrine and ratiocination in Caling.
II
It will, therefore, be observed that "the settled ruling in the aforementioned
cases" is actually a skein drawn from the same single thread originally
introduced by Tac-an and stitched into the jurisprudential fabric with some
permutative designs. It is not necessarily "unfortunate if we should
suddenly depart therefrom" where the benefit of a second view and the
grace of hindsight dictate such a course of action.
The Court will recall the series of cases, when the proscription against the
imposition of the death penalty was still upon us, wherein we initially
provided in our decisions different and inconsistent rules on the proper
periods of the penalty for murder, at that time punishable by reclusion
temporal in its maximum period to death. We eventually settled on
reclusion perpetua as the medium period. 9 Of more recent memory was
the spate of conflicting positions on the penalty for illegal possession and
traffic in dangerous drugs, and the amendments brought about by Republic
Act No. 7659, until we arrived at a solution in People vs. Simon. 10 Nobody
was heard to complain that we were running afoul of the doctrine of stare
decisis, as now appears to be the stance of the majority.
Indeed, if hard cases make bad law, bad law also makes hard cases,
whether what is involved is statutory or case law. Of course, in discharging
our duty of judicial interpretation, there may be not only merit but also
facility, if not the expediency of the slothful path of least resistance, in just
adopting the rule of uniformity on the bases of past decision. But, equally
as commendable as the doctrine of stare decisis itself, is the well-known
and ancient wisdom in the reminder that such doctrine does not mean blind
adherence to precedents.
III
Obviously, because of the reasoning in Tac-an, the majority opinion
emphasizes that in imposing a single penalty of reclusion perpetua for the

qualified violation of Presidential Decree No. 1866 and treating murder

merely as an element of the statutory offense, an incongruous situation
results wherein a more serious crime under the Revised Penal Code, which
is malum in se, is absorbed by a lesser offense under a special law which
is only malum prohibitum. Hence, it was urged during the deliberations that
we should not adopt a novel doctrine which rests on a shaky foundation.
1. The basic premise of this argument is definitely off-tangent. The penalty
for the aggravated illegal possession of unlicensed firearm, in the
terminology of Caling, is the single indivisible penalty of death which would
be imposable regardless of the generic modifying circumstances 11 or of
whether the killing constitutes murder or homicide. The penalty under
Presidential Decree No. 1866 is, therefore, decidedly higher than that for
murder, although it is now reclusion perpetua to death in Republic Act No.
7659, and, being thereby covered by Article 63 of the Code, will be reduced
to reclusion perpetua in the absence of aggravating circumstances. Of
course, it does not even have to be pointed out that the penalty for
homicide is only reclusion temporal in its entire extent.
2. Even assuming arguendo that the penalty for the aforesaid taking of
human life could be higher than the penalty for aggravated illegal
possession which would absorb the former, that is not an unheard-of or
earthshaking legal tableau. The objections to the doctrine of absorption
here is reminiscent of what Judge Agustin P. Montesa reportedly stated, as
quoted in People vs. Hernandez, et al., 12 that: "The theory of absorption
tenaciously adhered to by the defense to the effect that rebellion absorbs
all these more serious offenses is preposterous, to say the least,
considering that it is both physically and metaphysically impossible for a
smaller unit or entity to absorb a bigger one."
Unfortunately, that astute observation was rejected by this Court, and
advisedly so, since we are bound by legal precepts and not by physical or
metaphysical laws. It is now an accepted dictum that the life of the law is
not necessarily logic but experience. These considerations must have
prompted the Court to also defend the doctrine of absorption in treason
cases, 13 holding that more serious offenses committed for treasonous
purposes are absorbed in the former, with the piquant observation in Labra
that "(t)he factual complexity of the crime of treason does not endow it with
the functional ability of worm multiplication or amoeba reproduction."
In the scheme of penalties under the Revised Penal Code, it is accepted
that a lesser offense may absorb a graver offense. As already stated, the
lesser offense of rebellion which is punished by prision mayor absorbs the
graver offense of murder which is now punished by reclusion perpetua to
death, and all other offenses even with higher penalties if committed in

furtherance of rebellion. 14 On a lower level of comparison and closer to the

case at bar, the lesser offense of forcible abduction which is punished by
reclusion temporal 15 absorbs the graver offense of illegal detention of a
woman which is punished by reclusion perpetua to death. 16 The lower
offense of slavery involving the kidnapping of a person which is punished
by prision mayor 17 absorbs the higher offense of kidnapping which is
punished by reclusion perpetua to death. 18
3. Neither should the fact that the aggravated form of illegal possession of
an unlicensed firearm is a malum prohibitum punished by a special law
inveigh against the doctrine of absorption we have adopted in Barros. In
fact, as hereinbefore quoted, Tac-an recognized that the killing should be
taken into account to increase the penalty to death because of the explicit
provision of Presidential Decree No. 1866.
In People vs. Simon, ante, we traced the legal history of crimes punished
under special laws, from the time they were divided by a seemingly
impermeable membrane, because of their American origin and formulation,
from felonies under the Revised Penal Code, which are of Spanish vintage.
We explained how the legal development of adopting the scheme of
penalties in the Revised Penal Code and applying them to those punished
by special laws, markedly starting with subversion in Republic Act No.
1700, resulted in the consequent selective applicability of some provisions
of the Code to special laws, absent an express or implicit prohibition
against such vicarious application. There is decidedly no insuperable
obstacle now to the application of the doctrine of absorption to offenses
provided for or contemplated in Presidential Decree No. 1866.
4. Nor should we hold a "judicial prejudice" from the fact that the two forms
of illegal possession of firearms in Presidential Decree No. 1866 are mala
prohibita. On this score, I believe it is time to disabuse our minds of some
superannuated concepts of the difference between mala in se and mala
prohibita. I find in these cases a felicitous occasion to point out this
misperception thereon since even now there are instances of incorrect
assumptions creeping into some of our decisions that if the crime is
punished by the Revised Penal Code, it is necessarily a malum in se and, if
provided for by a special law, it is a malum prohibitum.
It was from hornbook lore that we absorbed the distinctions given by text
writers, claiming that: (1) mala in se require criminal intent on the part of
the offender; in mala prohibita, the mere commission of the prohibited act,
4regardless of intent, is sufficient; and (2) mala in se refer to felonies in the
Revised Penal Code, while mala prohibita are offenses punished under
special laws.
The first distinction is still substantially correct, but the second is not

accurate. In fact, even in the Revised Penal Code there are felonies which
are actually and essentially mala prohibita. To illustrate, in time of war, and
regardless of his intent, a person who shall have correspondence with a
hostile country or territory occupied by enemy troops shall be punished
therefor. 19 An accountable public officer who voluntarily fails to issue the
required receipt for any sum of money officially collected by him, regardless
of his intent, is liable for illegal exaction. 20 Unauthorized possession of
picklocks or similar tools, regardless of the possessor's intent, is
punishable as such illegal possession. 21 These are felonies under the
Revised Penal Code but criminal intent is not required therein.
On the other hand, I need not mention anymore that there are now in our
statutes so many offense punished under special laws but wherein criminal
intent is required as an element, and which offenses are accordingly mala
in se although they are not felonies provided for in the Code.
IV
1. From the foregoing discussion, I regret that I cannot agree with the
rationalization of the majority that two separate penalties must be imposed
on the same accused because he is supposed to have committed two
separate offenses of (1) illegal possession with murder, and (2) the same
murder per se. The unusual justification is that in the first offense, the
murder is not considered as a separate offense but only to increase the
penalty for the illegal possession, and in the second offense, that same
murder shall now be considered as a separate offense in itself. To make
this theory palatable, the example is given that if the murder is committed
with an unlicensed firearm, the death penalty is imposable, whereas if it is
committed with a licensed firearm, the penalty shall only be reclusion
perpetua.
This concern is evidently due to the fact that Republic Act No. 7659, which
"reimposed" the death penalty for certain heinous crimes, does not include
the offense that we have termed as aggravated form of illegal possession
of firearms which is provided for in the second paragraph of Section 1,
Presidential Decree No. 1866. It approximates, therefore, an obsessive
desire to impose a higher penalty, even if thereby basic principles of
criminal law and the clear provisions of Presidential Decree No. 1866 are to
be disregarded. Should that intent to impose the present penalty for
murder, be subserved by charging that crime separately and then
prosecuting the offender again for using the firearm with which he
committed the same murder? And, will that objective be achieved if the
crime is homicide which has not been affected by Republic Act No. 7659
but will thereby also be subjected to the same double prosecution under
the reasoning of the majority?

It has always been my position that the death penalty was not "abolished"
by the 1987 Constitution, since I had some participation in formulating the
provision involved. It merely provides that the same shall not "be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it," 22 that is, authorizes its imposition. Meanwhile, all
laws which provided for the death penalty remained in force and were
maintained in the statute books despite that constitutional provision since it
did not by itself have the effect of amending or repealing them. Some of
those laws were later expressly repealed or amended by the President in
the exercise of her then legislative powers and, thereafter, some were
repealed or modified by Congress, which even added other heinous crimes
with capital penalties. However, other laws like Presidential Decree No.
1866, which were not thus repealed or amended, retain their present
provisions and effects, except that the death penalty provided by them
would in the meantime be reduced to reclusion perpetua. Parenthetically,
why should the laws concerned be deemed amended or repealed if the
death penalty provided for therein had already been "abolished" by the
Constitution?
Republic Act No. 7659 did not "reimpose" the death penalty on murder.
Article 248 of the Penal Code, which provided for the penalty of reclusion
temporal in its maximum period to death for that crime, was amended by
Republic Act No. 7659, merely to increase the penalty to reclusion
perpetua to death, but it remained in full force even during the interim
except for the fact that the penalty of death could not then be imposed.
That is why the title of Republic Act No. 7659 is "An act to Impose the
Death Penalty in Certain Heinous Crimes, Amending for that purpose, the
Revised Penal Code, . . . ." The same is true with respect to the aggravated
form of illegal possession of firearms, except that the imposition of the
death penalty thereunder is still proscribed.
2. Even if we were to indulge the majority in its thesis on the effects of
Republic Act No. 7659 on Presidential Decree No. 1866, that is, that by the
non-inclusion in the former of the aggravated form of illegal possession
with murder the death penalty cannot be imposed for the murder, that fact
does not warrant and cannot justify the recourse it has adopted as a
judicial dictum. The second paragraph of the aforestated Section 1
expressly and unequivocally provides for such illegal possession and
resultant killing as a single integrated offense which is punished as such.
The majority not only created two offenses by dividing a single offense into
two but, worse, it resorted to the unprecedented and invalid act of treating
the original offense as a single integrated crime and then creating another
offense by using a component crime which is also an element of the

former.
It would already have been a clear case of judicial legislation if the illegal
possession with murder punished with a single penalty had been divided
into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative
powers for this Court to now, as it has done, treat that single offense as
specifically described by the law and impose reclusion perpetua therefor
(since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to
be able to impose the death sentence. For indeed, on this score, it is
beyond cavil that in the aggravated form of illegal possession, the
consequential murder (or homicide) is an integrated element or integral
component since without the accompanying death, the crime would merely
be simple illegal possession of a firearm under the first paragraph of
Section 1.
3. The fact that the aggravated form of illegal possession with murder was
not included in Republic Act No. 7659 is a matter for Congress, and not for
this Court, to remedy. A legislative terrain with gaps of omission in the
statute is not terra incognita to the courts, familiar as we are with instances
thereof. The legislature may have committed such omissions in the law for
reasons of its own or through unintended oversight but, unless judicial
remedy is constitutionally permissible, and in the cases at bar it is not, the
courts must await the legislative remedy of amendment or repeal of that
law.
For illustration, we can just again refer to the impasse earlier discussed
regarding the logically absurd penalties for kidnapping in Article 267, in
relation to forcible abduction of a woman under Article 342 and kidnapping
for
slavery in Article 272, all of the Revised Penal Code. A reading of Republic
Act No. 18 23 and Republic Act No. 1084 24 readily reveals that it was the
purpose of Congress by corresponding amendment of the other related
provisions of the Code, to put all forms of kidnapping and serious illegal
detention in Article 267. Yet, in the process, that objective was not fully
subserved by the two amendatory laws since forcible abduction of a
woman, which necessarily involves her kidnapping and detention, as well
as kidnapping for the purpose of enslaving the victim, were overlooked and
not included in the provisions of Article 267. 25
These instances are presented to project the discrepancies in what should
be the appropriate penalties for the aforesaid offenses involved because of
their omission by Congress in the logical taxonomy of crimes. Yet, the
Judiciary stands bound by the aforementioned state of the law on the

matter, and has no attempted to exercise the power reserved for legislative
amendment to suit its perceptions on what the penalties should be for
forcible abduction and slavery. Similarly, the disposition in the cases at bar
is grounded on the omission or non-inclusion of murder through the use of
an illegally possessed firearm in the heinous crimes subject of Republic Act
No. 7659. But, instead of respecting the legislative formulation, the majority
has contrarily decided to disregard the clear import of Presidential Decree
No. 1866 and opted to impose two penalties for what it considers as two
offenses through a bifurcated interpretation.
4. Following that treatment, is the Court now prepared to adopt the same
procedure with regard to similar offenses punished under other decrees?
For example, Presidential Decree No. 532, 26 punishes highway robbery
with murder or homicide with the mandatory penalty of death. Since this
offense has not been included in Republic Act No. 7659 and the death
penalty cannot be imposed, shall this Court also follow the same procedure
of imposing the penalty of reclusion perpetua for the highway robbery with
murder (or homicide) under Presidential Decree No. 532, and then further
impose the death penalty for the same murder under Article 248 of the
Revised Penal Code?
Again, Presidential Decree No. 533 27 imposes the penalty of reclusion
perpetua to death if a person is killed as a result of cattle rustling. This
offense has not been included in Republic Act No. 7659, hence the penalty
can only be reclusion perpetua. By adopting the same rationale in the case
at bar, shall the Court then impose the penalty of reclusion perpetua for
cattle rustling pursuant to Presidential Decree No. 533 and then, if the
killing constitutes murder attended only by an aggravating circumstance,
should it then impose another penalty of death for the same murder under
Article 248 of the Code?
Still further, Presidential Decree No. 534 28 provides that if illegal fishing
with the use of explosives or noxious or poisonous substances results "in
the loss of human life, then the penalty shall be imprisonment from 20
years to life, or death." This offense is not provided for in Republic Act No.
7659, hence the death penalty cannot be imposed; but the killing could
conceivably constitute murder since the use of explosion or poison is a
qualifying circumstance. The inevitable question that must again be posed,
based on the theory adopted here by the majority, is whether or not the
illegal fishing with murder shall be punished with life imprisonment at most
under Presidential Decree No. 534, and then, if only an aggravating
circumstance is present therein, the accused must also be given another
penalty of death under Article 248 of the Code.
We can easily multiply what are clearly perceivable as the dangerous

consequences of the solution contrived by the majority of creating two

offenses and imposing two penalties. I have, however, chosen the
foregoing illustrations involving acts punished under both a presidential
decree and the Revised Penal Code, with murder as a common
denominator, to make my analogies as close as possible to that involving
Presidential Decree No. 1866 in these cases. In truth, the same
problematic situation could be raised and created against any composite
felony in the Code which is considered as a unitary offense and punished
by a single penalty, if the majority's novel theory of duality of offenses with
double penalties were to be applied thereto.
It is rather pointless to essay an unnecessary distinction between the
phrase "as a result or on the occasion of" which refers to the killing
committed in the course of violating Presidential Decrees Nos. 532, 533
and 534, and the killing "with the use" of an illegally possessed firearm
contemplated in Presidential Decree No. 1866. Incidentally, the equivalent
phrase used in the special complex crimes in Articles 294 and 297 of the
Code, in referring to the deaths caused by the malefactor, is "by reason or
on occasion of" the different stages of the robbery therein. But the common
denominator and identity among all the aforesaid composite crimes, for
purposes of the issue under consideration, is that there is a principal
offense, which is separately punishable, and an unlawful killing with a direct
nexus to or connection with that principal offense is also committed.
What is then the focus of the inquiry in the present case which applies with
equal force to the aforestated composite crimes is merely whether or not,
apart from and in addition to the penalty imposable on the offender if he
violates any of the foregoing decrees or commits robbery in any of its
stages and which penalty is increased precisely if accompanied by an
unlawful killing, he should be further and separately punished for such
homicidal or murderous taking of human life. The implacable question is
whether or not two separate penalties should be imposed on him for killing
the same victim since those decrees and the Code already provide a single
but increased penalty for the crimes therein if accompanied by an unlawful
killing and thereby constituting a composite crime. Whether the death of the
victim supervened as "a result or on the occasion," or "by reason or on
occasion," or "with the use" of the firearm or poisonous substances availed
of by the accused is im material even if liberally viewed in the context of the
mens rea as proposed by the majority.
5. Prescinding from the substantive aspect and shifting to the procedural
and constitutional view, I am also bothered by the impact of the majority
opinion upon the rule on double jeopardy. I am referring, of course, to
double jeopardy arising from prosecutions for the same offense under two

or more laws as contemplated in the Rules of Court, 29 and not to the

special situation under the Constitution 30 involving a prosecution for the
same act punished under a law and an ordinance, as clarified in People vs.
Relova, etc., et al. 31 In the first kind of double jeopardy for purposes of this
discussion, what is determinative is the identity of the offense, hence the
"same-evidence" test applies, that is, that the facts alleged and proven in
one charge would, based on the same evidence, suffice to support the
second charge, and vice-versa. 32 Accordingly, the citation by the majority
of People vs. Doriquez 33 is of no moment, since it refers to a single act
offending against two entirely distinct and unrelated provisions of law one
of which requires proof of an additional fact or element, hence different and
not identical offenses are involved.
In the cases now before us, it is difficult to assume that the evidence for the
murder in the first charge of aggravated illegal possession of firearm with
murder would be different from the evidence to be adduced in the
subsequent charge for murder alone. In the second charge, the illegal
possession is not in issue, except peripherally and inconsequentially since
it is not an element or modifying circumstance in the second charge, hence
the evidence therefor is immaterial. But, in both prosecutions, the evidence
on murder is essential, in the first charge because without it the crime is
only simple illegal possession, and, in the second charge, because murder
is the very subject of the prosecution. Assuming that all the other
requirements under Section 7, Rule 117 are present, can it be doubted that
double jeopardy is necessarily present and can be validly raised to bar the
second prosecution for murder? 34
In fact, we can extrapolate this constitutional and reglementary objection to
the cases of the other composite crimes for which a single penalty is
imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the
same offense of either estafa or falsification; or how the accused convicted
of robbery with homicide under Article 294 can be legally charged again
with either of the same component crimes of robbery or homicide; or how
the convict who was found guilty of rape with homicide under Article 335
can be duly haled before the court again to face charges of either the same
rape or homicide. Why, then, do we now sanction a second prosecution for
murder in the cases at bar since the very same offense was an
indispensable component for the other composite offense of illegal
possession of firearm with murder? Why would the objection of non bis in
idem as a bar to a second jeopardy lie in the preceding examples and not
apply to the cases now before us?

The majority comes up with the so-called "additional element" test to take
the issue out of the rule on double jeopardy, citing for that purpose Yap vs.
Lutero 35 and People vs. Relova, etc., et al. 36 These cases are not actually
in point since they are primarily concerned with the question of double
jeopardy where the same offense is punished by two statutes or different
sections of the same statute, as contrasted with double jeopardy arising
from the same act punished by a law and likewise by an ordinance, as has
earlier been explained. The distinction is not germane here since there is
no punitive ordinance involved in the case at bar. This proposition of the
majority, however, bears discussion.
I do not gainsay the validity of the "additional element test," if properly
understood and correctly applied. As I have written elsewhere, it is a
cardinal rule that the protection against double jeopardy may be invoked
only for identical offenses or where an offense necessarily includes or is
necessarily included in the other offense. However, it has also long been
held that a single act may offend against two or more entirely distinct and
unrelated provisions of law, and if one provision requires proof of an
additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar
prosecution under the other. 37 That is because the two offenses continue
to exist independently of each other, with their respective penalties
remaining unaffected by the commission of or penalty for the other offense.
This is illustrated by the considerations in the present rule that Batas
Pambansa Blg. 22, which punishes the mere issuance of bouncing checks,
is not a bar to another prosecution for estafa through the use of bouncing
checks under paragraph 2(d), Article 315 of the Revised Penal Code. 38
The rationale therefor is that the issuance per se of a bouncing check is
ipso jure punishable under Batas Pambansa Blg. 22, but to be punishable
as estafa under the Code, the additional elements of deceit and damage
are required. Also, while the former offense requires the drawer's
knowledge of lack or insufficiency of funds in the drawee bank at the time
the check is issued, the aforesaid provision on estafa does not so require.
The penalty for the former is fixed by Section 1 of said law without regard
to the damage caused or even without such damage, whereas the penalty
for estafa through bouncing checks is determined by the damage to the
offended party. 39 Lastly, Section 5 of Batas Pambansa Blg. 22 provides
that prosecution thereunder "shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code."
These features are absent in the integrated offense of murder or homicide
with the use of an illegally possessed firearm. It is true that mere illegal
possession has a specific lower penalty in Presidential Decree No. 1866,

and murder or homicide have their own specific penalties in Articles 248
and 249 of the Code. However, the moment both erstwhile separate
offenses juridically unite, we have what for expediency has been called by
this Court an aggravated form of illegal possession of firearm punishable
by the two highest penalties of reclusion perpetua to death. We cannot
speak here, therefore, of the "additional element test" which presupposes
and requires that the two offenses remain distinct from each other, with the
discrete penalty for one being immune from that for the other. What,
instead, transpired in Presidential Decree No. 1866 is a unification or
merger in law of both offenses of illegal possession of firearm and murder
or homicide, with each of them becoming a component offense in a new
and different composite crime punished by another and gravely higher
penalty.
V
1. The apprehension was also aired in our deliberations that the ruling in
Barros may provide dishonest prosecutors with unfettered discretion to
charge parties who commit illegal possession of firearms in its aggravated
form not with the said offense but only with homicide or murder with one
qualifying circumstance, and without any generic aggravating
circumstance, so that by such strategy the accused would thereby get only
the minimum period of the penalty.
As long as we live in a world of men and not of angels, there will always be
that legitimate fear over the possible excesses of officialdom. There are,
however, a plenitude of remedies provided by law for such a contingency,
either criminal, civil or administrative in nature. In fact, if that act of the
public prosecutor amounts to a refusal to perform a specific duty imposed
on him by law, his nonfeasance could even be controlled by an action for
mandamus and he can be compelled to charge the proper offense in the
information. 40
2. Again, drawing from the experience in Deunida where only the
aggravated illegal possession charge proceeded while that for homicide
was withdrawn, then on the submission that no private interest had to be
protected therein, no private prosecutor could appear for the victim. Indeed,
it was stated in said case: "No private interest is therefore involved. The
civil liability arising from death may be the subject of a separate civil action
or impliedly instituted with the criminal action for murder or homicide." The
Court then ordered the deletion of the award of civil liability ex delicto.
It is my stand that even under such circumstances, the trial court may
justifiedly assess and award the corresponding damages to the heirs of the
victim. This is not one of the so-called "victimless crimes" where, by the
very nature of the crime, no damages can possibly be sustained by a

private party, such as espionage, violation of neutrality, flight to enemy

country or crimes against popular representation. 41 Where the victim was
killed under the circumstances contemplated in Presidential Decree No.
1866, I see no reason why the case should be excepted from the
fundamental rule that every person criminally liable is civilly liable. 42 Thus,
while the crime of rebellion is directed against the Government, yet in the
rebellion cases decided by this Court, corresponding awards for civil
damages were invariably granted so long as the offense which caused the
damage was proved and the victim and the malefactor or the property
involved were duly identified by satisfactory evidence.
3. The advertence to People vs. De Gracia, et al., 43 the decision wherein
was penned by this writer, overlooks or fails to mention that the same was
decided under the aegis of the doctrines in the cases hereinbefore
enumerated, specifically the Tioson case, to which we then had to defer as
they constituted the prevailing rule, but which are now sought to be
revisited in the instant case in light of Barros.
The statement in De Gracia that "(i)t was a legal malapropism for the lower
court to interject the aforestated provision of the Revised Penal Code in
this prosecution for a crime under a special law," referred to the action of
the trial court in recommending executive clemency for the accused.
Although there are some contrary views on the matter, the writer held that
Article 5 of the Code does not apply to convictions under a special law
where such application, as earlier stated, is expressly or impliedly
prohibited. Said Article 5 expressly provides for the authority of the court to
recommend executive clemency "when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty." Since, at that time the legal interplay between Presidential Decree
No. 1866 and the penalties "borrowed" for it from the Revised Penal Code
was still amorphous, this writer had to make those pronouncements in said
case, but, precisely, the same are now being reexamined in the present
cases.
I am aware that I have raised a number of what may appear as
discomposing views but these should provoke a more thorough
reexamination of the issues in these cases. On the other hand, I apprehend
that the decision handed down herein may have opened a Pandora's box
of legal curiosities and the swarm thus released will in due time return to
the Court to roost. I can only hope that the Court's mavens of penal law
who are responsible for the majority opinion here can fortify the same to
meet the diverse and adverse reactions that it will predictably create.
On the foregoing premises, I respectfully but vigorously register my dissent
on the points indicated and for the reasons advanced therefor.

Narvasa, C.J., Romero, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Separate Opinions
HERMOSISIMA, JR., J.: concurring
Murder, most foul for betraying a depraved heart, is the inordinate killing of
a human being, unlawfully and with premeditated malice, wilfully,
deliberately, a felony described in and penalized under Article 248 of the
Revised Penal Code.
On the other hand, the unlawful possession of an unlicensed firearm, that
artifice consisting essentially of a straight tube to propel a shot, shell or
bullet by the explosion of gunpowder, is penalized as the offense of Illegal
Possession of Unlicensed Firearm by Presidential Decree No. 1866 of
martial law vintage.
Against accused-appellant Daniel Quijada y Circulado were filed the two
aforestated cases: Murder, Criminal Case No. 8178 and Illegal Possession
of an Unlicensed Firearm, Criminal Case No. 8179 "which firearm was
carried by the said accused outside of his residence and was used by him
in committing the crime of murder" in violation of paragraph 2, Section 1, of
Presidential Decree (P.D.) No. 1866. After a joint trial, the trial court
convicted accused-appellant in both cases and sentenced him to suffer the
penalty of Reclusion Perpetua for the crime of Murder and imprisonment a
period of Seventeen (17) Years, Four (4) Months and One (1) Day, as
minimum, to Twenty (20) Years and One (1) Day, as maximum, for the
offense of Qualified Illegal Possession of Unlicensed Firearm penalized
under the aforecited P.D. No. 1866.
There is no question that, as found by the majority, the crime of Murder and
the offense of Illegal Possession of Firearm had been established by
evidence beyond the shadow of doubt.
While the majority affirms the twin conviction of the accused-appellant in
both Criminal Case No. 8178 for Murder and Criminal Case No. 8179 for
Illegal Possession of an Unlicensed Firearm, the minority asserts the
dissenting opinion that, as in People vs. Barros, 1 accused-appellant may
only be convicted of the offense of Illegal Possession of Unlicensed
Firearm in its aggravated form, inferring that the crime of Murder has been
absorbed by that offense or rather that the two (2) crimes may be said to
have been complexed with each other.
While the teleological debate on whether criminal punishment is justified as
retribution or as reformation continually rages, hardly disputable is the
static view and unchanged reality that the primordial justification for
punishing any man is that he has broken the law. While in Anglo-American
jurisdictions, there exist what are known as common law offenses, in our

jurisdiction, no act is a crime unless it is made so by statute. 2 Every law

enacted by the legislature for the restraint and punishment of crimes and
for the preservation of the public peace, health and morals comes within
the police power of the State. 3
The right of prosecution and punishment for a crime is one of the attributes
that by a natural law belongs to the sovereign power instinctively charged
by the common will of the members of society to look after, guard and
defend the interests of the community, the individual and social rights and
the liberties of every citizen and the guaranty of the exercise of his rights. 4
In the exercise of its right, duty and power to determine and define crimes
and their corresponding penalties, the lawmaking body is initially and
usually guided by the general condition of penal liability under the legal
maxim, "actus non facit reum, nisi mens sit rea," which, if freely translated,
means that "an act is not criminal unless the mind is criminal." On the basis
of this, which is commonly known as the mens rea doctrine, our Revised
Penal Code was enacted to largely penalize unlawful acts accompanied by
evil intent which are denominated en masse as crimes mala in se. The
paramount consideration here is the existence of a malicious intention
borne out by the concurrence of freedom, intelligence and intent which
altogether make up the "criminal mind" behind the resultant "criminal act".
It is not always, however, that the evil to society anent a criminal act
depends upon the state of mind of the offender. And no less valid, critical
and indispensable is the prerogative of the legislature, through special
enactments, to forbid the doing of a particular act and legislate the
commission of such act to be a crime, regardless of the intent of the doer.
In many crimes, made by statutory enactment, the intention of the person
who commits the crime is entirely immaterial. This is necessarily so. If it
were not, the statute as a deterrent influence would be substantially
worthless. It would be impossible of execution . In many cases the act
complained of is itself that which produces the pernicious effect which the
statute seeks to avoid. In those cases, the pernicious effect is produced
with precisely the same force and result whether the intention of the person
performing the act is good or bad . . . It is quite different from that large
class of crimes, made such by the common law or by statute, in which the
injurious effect upon the public depends upon the corrupt intention of the
person perpetrating the act. 5
In general, it may be said that there must be malus animus or a criminal
intent. But there is also a class of crimes known as crimes mala prohibita
which, on the broad grounds of public policy, criminalize certain acts
without the usual requisite proof of the intent of the actor to commit the
crime.

In the case of The State vs. McBrayer (98 N.C., 623) this court stated:
It is a mistaken notion that positive, willful intent to violate the criminal law
is an essential ingredient in every criminal offense, and that where there is
an absence of such intent there is no offense; this is especially true as to
statutory offenses. When the statute plainly forbids an act to be done, and
it is done by some person, the law implies conclusively the guilty intent,
although the offender was honestly mistaken as to the meaning of the law
he violates. When the language is plain and positive, and the offense is not
made to depend upon the positive, willful intent and purpose, nothing is left
to interpretation.
xxx xxx xxx
Care must be exercised in distinguishing the difference between the intent
to commit the crime and the intent to perpetrate the act The accused did
not consciously intend to commit a crime; but he did intend to commit an
act, and that is, by the very nature of things, the crime itself-intent and all.
The working of the law is such that the intent and the act are inseparable.
The act is the crime. 6
Indeed, to distinguish between crimes mala in se and mala prohibita by
simply pointing out that the former refer to felonies in the Revised Penal
Code while the latter are punished under special laws, does not amount to
much, for there are indeed felonies that are penalized regardless of the
felon's criminal intentions, and conversely, there are also special offenses
that require proof of criminal intent.
Whether or not in a given case the statute is to be construed as forbidding
the doing of an act and criminalizing the same without regard to the intent
of the perpetrator of the act, is to be determined by the court by considering
the subject matter of the prohibition as well as the language of the statute,
thereby ascertaining the intention of the lawmaker. The index of whether or
not a crime is malum prohibitum is not its form, that is, whether or not it is
found in the Revised Penal Code or in a special penal statute, but the
legislative intent that underlies its continuing existence as part of the law of
the land.
Considering the nature of the offense, the purpose to be accomplished, the
practical methods available for the enforcement of the law, and such other
matters as throw light upon the meaning of the language, the question in
interpreting a criminal statute is whether the intention of the legislature was
to make knowledge of the facts an essential element of the offense, or to
put upon everyone the burden of finding out whether his contemplated act
is prohibited, and of refraining from it if it is. 7
In this light, we have not just a few times precisely delineated the malum
prohibitum nature of P.D. No. 1866, which is a codification of the laws on

unlawful possession of unlicensed firearms, among others.

As has been aforesaid, in determining whether or not an offense is malum
prohibitum or not, the relevant inquiry must concern the legislative intent as
to the requirement of criminal intent or lack thereof. In this respect, the
discussion of Justice Regalado in People vs. De Gracia 8 is appropriate:
The first issue to be resolved is whether or not intent to possess is an
element of the offense punishable under Presidential Decree No. 1866
and, if so, whether appellant . . . did intend to illegally possess firearms and
ammunition
The rule is that ownership is not an essential element of illegal possession
of firearms and ammunition. . . .
But is the mere fact of physical or constructive possession sufficient to
convict a person for unlawful possession of firearms or must there be an
intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good faith and
absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law. Intent to commit the crime
and intent to perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but he did intend to commit
an act, and that act is, by the very nature of things, the crime itself. In the
first (intent to commit the crime), there must be criminal intent; in the
second (intent to perpetrate the act), it is enough that the prohibited act is
done freely and consciously.
In the present case, a distinction should be made between criminal intent
and intent to possess. While mere possession, without criminal intent, is
sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the
part of the accused. Such intent to possess is, however, without regard to
any other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to the
intention of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under Presidential
Decree No. 1866. 9
In its enactment, P.D. No. 1866 was undoubtedly intended as a substantial
measure in response to the perennial problem of law enforcement and
public order and safety, Thus, we always pointed out that P.D. No. 1866
was passed because of an upsurge of crimes vitally affecting public order
and safety due to the proliferation of illegally possessed and manufactured

firearms, which crimes have resulted in loss of human lives, damage to

property and destruction of valuable resources of the country. 10
The aforecited public policy concern justified the blanket prohibition in P.D.
No. 1866 against mere possession of unlicensed firearms, among others,
without regard to the criminal intent of the possessor. Indeed, what is being
punished is the illegal possession, among others, of unlicensed firearms.
What the decree does is to define the offense and provide for the penalty
that may be imposed, specifying the qualifying circumstances that would
aggravate the offense. There is no encroachment on the power of the court
to determine after due hearing whether the prosecution has proved beyond
reasonable doubt that the offense of illegal possession of firearms has
been committed and that the qualifying circumstances attached to its has
been established also beyond reasonable doubt as the Constitution and
judicial precedents require. 11
Insofar as material to the present case, what is penalized is the sole,
simple act of a person who shall, among others, "unlawfully possess any
firearm". The gravamen of the offense is the fact of possession of a firearm
without a license or authority for such possession. 12 It is only the offense of
Illegal Possession of Unlicensed Firearm that is, in the corporeal and
material sense, provided for and defined in Section 1 of P.D. No. 1866. The
penalty therefor, however, is another matter.
It is undisputed that P.D. No. 1866 was validly enacted in 1983 in the
exercise of legislative powers by then President Marcos under the 1973
Constitution, which powers inherently included the prerogative to prohibit
certain acts perceived by the lawmaker to be substantially prejudicial to the
public interest. Thus, Section 1 forbids the possession by any person of a
firearm for which he does mot have the proper license and/or authority. The
sole act forbidden, prohibited and thereby criminalized is the illegal
possession of an unlicensed firearm. That is all. However, while the offense
penalized is singular, the penalties for such offense are plural and are
distinguished from each other by certain circumstances which the
lawmaker considered to be valid reasons to impose penalties heavier than
the others. Thus, as a whole, the pertinent portion of said decree provides,
to wit:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
Be Used in the Manufacture of Firearms or Ammunition. The penalty of
reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the

manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with crimes of rebellion, insurrection, or subversion, the penalty
of death shall be imposed.
xxx xxx xxx 13
The circumstances (1) that homicide or murder is committed with the use of
an unlicensed firearm and (2) that the illegal possession of unlicensed
firearm is committed in furtherance of, or incident to, or in connection with
the crimes of rebellion, insurrection or subversion, only qualify or aggravate
the offense of Illegal Possession of Unlicensed Firearm for purposes of
increasing the penalty therefor. These circumstances do not create another
offense or a special kind of illegal possession or another form of illegal
possession. When either of such circumstances is attendant under the
premises of a case, such circumstance only authorizes and justifies the
imposition of a higher penalty. It only has the effect of upgrading the
penalty and not of supplying an additional, separate element of a new or
another offense. Thus, there is no such thing as a special complex crime of
illegal possession of unlicensed firearm used in homicide, 14 or murder for
that matter. Neither could we have conceived what we have been calling
the aggravated form of illegal possession 15 or qualified illegal possession,
16
to be a separate, distinct and independent offense from illegal
possession without any qualifying circumstance. Even Justice Regalado
concedes in his Separate Opinion in People vs. Barros 17 that "the
nomenclature of aggravated illegal possession is used just for expediency,
in the same manner as that of 'qualified rape' under Article 335 when the
sexual assault is attended by the circumstances therein which result in
increased penalties."
In People vs. Barros, 18 we were mainly concerned with the issue as to
whether or not, whenever a killing is effected with the use of an unlicensed
firearm, the malefactor should be punished separately for both offenses,
with the unlawful taking of life to be proceeded against under the
corresponding provision of the Revised Penal Code and the illegal
possession of the firearm under P.D. No. 1866. There, we decided that said
malefactor ought only to be punished for qualified illegal possession of
firearm essentially because the two crimes are not altogether separate or
disconnected from each other both in law and in fact and could thus be
viewed as a situation bordering close to or approximating the concept of
complex crime proper and/or as a situation where the graver offense (of
qualified illegal possession) can be said to have absorbed the lesser

offense (of homicide or murder) which constitutes the essential element

siring the so-called "capital offense of the aggravated form of illegal
possession".
There is no time more appropriate to re-examine the Barros ruling than
now, for to persist in it would result in an absurd situation that cannot be
justified even under the hallowed principle of stare decisis.
Merely that two crimes are not altogether separate or disconnected from
each other both in law and in fact, is of no moment. In the first place,
should they in law and in fact be altogether separate or disconnected from
each other to foreclose their absorption into or complexing with, each
other? In the second place, that very statement provides a basic
presumption and reality that must be fully understood insofar as its
implications and consequences are concerned. They are precisely two
crimes, and these two crimes are punished under two separate, distinct
and independent laws. Punishment is a corollary of lawbreaking by a
member of society whose law is broken. 19 In this case, there are two
separate laws involved, two separate crimes punished by two laws, and
two counts of breaking the law constituting two crimes for which two
separate penalties are provided. Concededly, accused-appellant performed
only one action which was made basis for two Informations each charging
a distinct offense. But it is also a well-established rule in this jurisdiction
that
a single act may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an additional fact or
element which the other does not, an acquittal or conviction or a dismissal
of the information under one does not bar prosecution under the other.
Phrased elsewise, where two different laws (or articles of the same code)
define two crimes, prior jeopardy as to one of them is no obstacle to a
prosecution of the other, although both offenses arise from the same facts,
if each crime involves some important act which is not an essential element
of the other. 20
Where there are, as in this case, two crimes punished by two distinct laws
enacted for absolutely different purposes, and both laws are clear and
unambiguous, and no absurdity or unreasonableness is evident from the
application of both, it is not the proper function of the court to change or
alter in any way the state of things thereunder. That it is desirable,
equitable, wise, humane or charitable to find a way to decrease the penalty
or avoid imposition of the penalties under the two laws, is not denied, but at
most we can only "legislate interstitially . . . confined from molar to
molecular motions" 21 and clear up ambiguities or fill in the gaps. Gaps in
our conscience and our personal convictions must be found and provided

some other legitimate channel for expression and realization.

The law on complex crime proper is not applicable here. One of the
reasons often cited in proscribing complexing a crime under the Revised
Penal Code and an offense under a special law is that the latter is not
punishable by a penalty divisible into periods. Now following our ruling in
People vs. Simon, 22 the suppletory effect of the Revised Penal Code upon
P.D. No. 1866 is now starkingly broadened because though it is a special
penal law, the penalties provided therein are actually taken from the
Revised Penal Code in their technical nomenclature, duration, correlation
and legal effects, such that the same treatment as that respecting Revised
Penal Code penalties may now be given to penalties under certain special
laws.
However, notwithstanding the import of our ruling in the said case of
People vs. Simon, it still cannot be said that there is no longer any obstacle
in complexing murder with qualified illegal possession because the very
essence and nature of each of these crimes remains unchanged and
unaffected. Murder, or for that matter, homicide, remains distinct from the
crime of Illegal Possession of Unlicensed Firearm where the firearm is
used in perpetrating the killing. The defendant in such cases committed two
different acts with two separate criminal intents, to wit, the desire to take
unlawfully the life of a person and the sheer violation of the law which
prohibits the possession of a firearm without the required permit. 23 In other
words, there is in this instant case a case of plurality of crimes where
accused-appellant performed one act which resulted in two different crimes
penalized under two separate laws which have distinct purposes and are
independent from each other.
Neither does the doctrine of absorption obtain in this case. For absorption
to take place under the circumstances thereof, there must be two materially
distinct and separate offenses involved murder and what has been
referred to as the capital offense of the aggravated form of illegal
possession of unlicensed firearm. As has been explained hereinabove,
however, the offense defined in Section 1 of P.D. No. 1866 is plainly, simply
illegal possession of unlicensed firearm. The circumstance of homicide or
murder only operates to upgrade the penalty for the offense of illegal
possession of unlicensed firearm and does not as it has not been intended
to, sire and penalize a second offense or the so-called capital offense of
the aggravated form of illegal possession of unlicensed firearm. The
offense of illegal possession, as such, in turn, cannot validly absorb murder
or homicide because the latter is not an element of the former. Nothing
more indubitably evidences the intent of the legislature to maintain the
integrity and effectivity of the penal provision for murder and homicide, on

the one hand, and of Section 1 of P.D. No. 1866, on the other, than the very
pertinent provision of said decree which neither created any special
complex crime nor amended nor repealed the provisions on murder or
homicide nor defined a separate offense of an aggravated form of illegal
possession.
We are not unaware of the fundamental legal principle that every doubt in
the construction of a criminal statute should be resolved in favor of any
person accused of a crime. To mete out a lesser penalty is certainly
favorable to an accused; such, however, presupposes the existence of
some doubt in the application of the law pertinent to his circumstances. In
the instant case, there is no ambiguity, ambivalence, confusion, doubt or
question respecting the applicable laws. The penalties provided for by the
Revised Penal Code for the crime of Murder and by P.D. No. 1866 for the
offense of Illegal Possession of Unlicensed Firearm are not under attack
And it could not also be said that the application of said laws and the
imposition of said penalties bring about an undeniable situation
characterized by such absurdity, unreasonableness, and socially, morally or
philosophically virulent consequences as to justify the utter disregard of
said laws and their substantive provisions regarding penalties. Certainly,
there must be a limit to what the court may do to remedy what it perceives
as a difficult but avoidable situation. The consequences of the application
of our valid, subsisting laws, after all, do not always have to satisfy our own
standards of what is just and fair.
Finally, with the enactment of Republic Act (R.A.) No. 7659 24 reimposing
the death penalty for certain heinous crimes, an anomalous situation may
merge in our midst if we apply Barros. Said Act enumerated particular
crimes under the Revised Penal Code and specific offenses under special
laws that shall henceforth contain provisions imposing the death penalty
under certain circumstances. One of the crimes enumerated thereunder is
Murder, which may now be punished by death. 25 The death penalty may
now also be meted out in, among others, the case of drug-related crimes
as provided for in the Dangerous Drugs Act of 1972 26 and the crimes
provided for in the Anti-Carnapping Act of 1972. 27
Of utmost significance is the fact that not included in the enumeration of
special offenses where the death penalty has been revived, is P.D. No.
1866. R.A. 7659 being a penal statute which must, as a rule, be strictly
construed against the State, the inescapable and inevitable conclusion is
that Congress, in enacting R.A. No. 7659, did not intend to revive the death
penalty provision found in the second and third paragraphs of Section 1 of
P.D. No. 1866.
The foregoing makes for a tremendous import. On the one hand, were we

to insist that murder may be complexed with or absorbed by illegal

possession of unlicensed firearm where said firearm is used in the
commission of murder or homicide, a person convicted for said offense
may only be punished with a penalty no higher than reclusion perpetua,
since R.A. No. 7659 did not revive the death penalty provision in Section 1
of P.D. No. 1866. On the other hand, a person who has used a licensed
firearm in committing murder may be punished with death if there were
sufficient aggravating circumstances attendant in the killing, since R.A. No.
7659 restored the death penalty for the crime of murder. No much deeper
analysis is needed to realize that an anomalous, absurd situation confronts
us where the use of an unlicensed firearm in killing is rewarded by a lesser
penalty. Herein lies real injustice. And we cannot scale down this
resounding message which indifference on our part would impart: if "would
be" criminals were to kill, they ought to kill with unlicensed firearms so that
they will fall within the purview of P.D. No. 1866 with respect to which the
death penalty has not been restored and not within the provisions of the
Revised Penal Code for murder, for then depending upon the nature and
number of the aggravating circumstances that may attend such crimes,
they face the possibility of being sentenced to death, an eventuality that
could never be under P.D. No. 1866.
Certainly, we cannot close our eyes to this absurd situation, and it will be
irresponsible of us to allow the absurdity to persist. We should not
stubbornly cling to the illusion that murder and illegal possession of
unlicensed firearm used in murder may be complexed with each other or
absorbed into each other. Anyway, they are not so disconnected from each
other that doing so would translate into a lower penalty. For us to cling to
such an illusion would be tantamount a complete disregard of legal
concepts and principles in the realm of crime and punishment that has
remain good, sound, valid law.
WHEREFORE, the conviction of the accused by the court a quo of the two
(2) crimes aforesaid, that is, for Murder and Illegal Possession of
Unlicensed Firearm, should be, as it is, affirmed.
REGALADO, J.: concurring and dissenting
I concur in the majority opinion only insofar as it holds accused-appellant
Daniel Quijada y Circulado guilty of the crime of murder with the use of an
illegally possessed firearm and punishes him therefor. I confess, however,
that I cannot in conscience reconcile myself with the unfortunate doctrine
first announced in People vs. Tac-an, 1 and now reiterated by the majority,
that said appellant should be twice penalized for two supposedly distinct
offenses involving (1) the murder of the victim with an illegally possessed

firearm, under Presidential Decree No. 1866 and (2) the same murder of
that same victim, this time under Article 248 of the Revised Penal Code.
I have heretofore rejected this very same dual verdicts of conviction in my
concurring opinion in People vs. Barros, 2 which found favor with all my
brethren in the Second Division, including Chief Justice Andres R. Narvasa
acting as the ponente of the decision in that case and in his capacity as the
Chairman of that Division. Indeed, I feel quite strongly that through the play
on words that illegal possession of firearm used in a killing is punishable
under Presidential Decree No. 1866, while the same killing with the same
illegally possessed firearm is separately punished under Article 248 of the
Revised Penal Code, we have been beguiled by the semantical tyranny of
shifting emphases.
I endeavored to analyze what I considered the error of that approach and
thereby expose the speciously camouflaged theory espoused in Tac-an
which I believe, and still do, constitutes an affront on doctrinal concepts of
penal law and assails even the ordinary notions of common sense. To
avoid excursive reading, I quote my humble explanation in Barros
somewhat at length:
Under the dispositions heretofore made by the Court involving the crimes
of homicide or murder through the use of an illegally possessed firearm,
and the same is true with the case at bar, the following queries may be
posed:
1. Should the crimes of homicide or murder, which are the end results, be
punished separately from and in addition to the liability for illegal
possession of the firearm as the instrument or the means employed?
2. On the other hand, should not the principal sole offense be the
aggravated form of illegal possession of a firearm under the second
paragraph of Section 1 of Presidential Decree No. 1866, with the homicide
or murder being absorbed therein as an integral element of the crime in its
aggravated form?
3. If either homicide or murder and illegal possession of firearm are so
charged in one and the same information, should they be considered and
punished as a single offense of homicide or murder with the use of an
unlicensed firearm, or as a case of aggravated illegal possession of firearm
resulting in homicide or murder, with the death penalty to be imposed in
either case?
4. If homicide or murder is charged in a separate information while
aggravated illegal possession of firearm is made the subject of a separate
indictment filed simultaneously with or prior or subsequent to the former,
but with the respective informations on the killing and the illegal possession
mutually alleging facts regarding the other offense as an attendant

circumstance, should the accused be held liable for two distinct crimes
regardless of whether the cases are jointly tried by the same court or
separately by the two courts where the informations were independently
filed?
On the first question, it is true that from the theoretical concept of the
requisite mens rea, the killing as the result of the criminal design arose
from a specific criminal intent, that is, the animus interficendi or intent to
kill. The illegal possession of the firearm requires a discrete and specific
intent to possess the weapon, which is the animus possidendi, coupled
with the physical possession thereof.
It would, therefore, appear at first blush that the two offenses having arisen
from different criminal intents, this would be, under the philosophical bases
for concurso de delitos, a case of material or real plurality under which
different crimes have been committed and for each of which a separate
criminal liability attaches. The flaw in this approach, however, is that
although two crimes have been committed, they are not altogether
separate or disconnected from each other both in law and in fact. The
illegally possessed firearm having been the weapon used in the killing, the
former was at least the necessary, although not an indispensable, means
to commit the other.
The situation thus borders closer to the concept of a complex crime proper,
technically known as a delito complejo, rather than to the postulate of two
separate crimes. It is true that former doctrines were to the effect that there
can be no complex crime where one of the component offenses is
punished by a special law. The rationale therefore was that in a complex
crime, Article 48 of the Code prescribes that the penalty shall be for the
graver offense to be applied in its maximum period. Since, at that time, the
penalties for crimes provided in special laws were not divided into periods,
it would be impossible to apply Article 48.
That ratiocination no longer applies now, specifically with respect to the
ease at bar, since the penalties in Presidential Decree No. 1866 were all
taken from the scale of penalties in the Code. The only possible difficulty in
this novatory approach would be on the first kind of complex crime, that is,
the delito compuesto since it exists "(w)hen a single act constitutes two or
more grave or less grave felonies." The use of that particular term for the
delicts committed bars the application of that form of complex crime to
offenses under Presidential Decree No. 1866, since "felonies" are offenses
provided and defined in the Code.
That objection would not, however, apply to a delito complejo since it is
sufficient therefor that "an offense is a necessary means for committing the
other." By these considerations, however, the writer does not mean to imply

that a killing through the use of an illegally-possessed firearm is a delito

complejo under Article 48 of the Code. As was carefully stated, such an
offense merely borders closer to or approximates the concept of a delito
complejo, but it thereby emphasizes the thesis that the offenses should not
be considered as separate crimes to be individually punished under the
principle of material plurality.
This premise accordingly brings up the second query as to whether or not
the crime should properly be the aggravated illegal possession of an
unlicensed firearm through the use of which a homicide or murder is
committed. It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm
punished by death under the second paragraph of Section 1, Presidential
Decree No. 1866, and it is on this point that the writer dissents from the
holding which would impose a separate penalty for the homicide in addition
to that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to
the accused, the Court has correctly held that to be the simple possession
punished with reclusion temporal in its maximum period to reclusion
perpetua in the first paragraph of Section 1. Where, complementarily, the
unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the
graver offense of aggravated illegal possession. In other words, the
homicide or murder constitutes the essential element for integrating into
existence the capital offense of the aggravated form of illegal possession
of a firearm. Legally, therefore, it would be illogical and unjustifiable to use
the very same offenses of homicide or murder as integral elements of and
to create the said capital offense, and then treat the former all over again
as independent offenses to be separately punished further, with penalties
immediately following the death penalty to boot.
The situation contemplated in the second query is, from the punitive
standpoint, virtually of the nature of the so-called "special complex crimes,"
which should more appropriately be called composite crimes, punished in
Article 294, Article 297 and Article 335. They are neither of the same legal
basis as nor subject to the rules on complex crimes in Article 48, since they
do not consist of a single act giving rise to two or more grave or less grave
felonies nor do they involve an offense being a necessary means to commit
another. However, just like the regular complex crimes and the present
case of aggravated illegal possession of firearms, only a single penalty is
imposed for each of such composite crimes although composed of two or
more offenses.
On the other hand, even if two felonies would otherwise have been covered

by the conceptual definition of a complex crime under Article 48, but the
Code imposes a single definite penalty therefor, it cannot also be punished
as a complex crime, much less as separate offenses, but with only the
single penalty prescribed by law. Thus, even where a single act results in
two less grave felonies of serious physical injuries and serious slander by
deed, the offense will not be punished as a delito compuesto under Article
48 but as less serious physical injuries with ignominy under the second
paragraph of Article 265. (People vs. Lasala, L-12141, January 30, 1962, 4
SCRA 61.) The serious slander by deed is integrated into and produces a
graver offense, and the former is no longer separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as
well as the discussion on complex and composite crimes, is that when an
offense becomes a component of another, the resultant crime being
correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority
would want to do with the homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is
more of a question of classification for purpose of the other provisions of
the Code. The theory in Tac-an that the principal offense is the aggravated
form of illegal possession of firearm and the killing shall merely be included
in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually sourced from
the very provisions of Presidential Decree No. 1866 which sought to
"consolidate, codify and integrate" the various laws and presidential
decrees to harmonize their provisions" which "must be updated and revised
in order to more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlying the provisions
of the Anti-Carnapping Act of 1972 (R.A. No. 6539, August 26, 1972),
wherein the principal crime to be charged is still carnapping, although the
penalty therefore is increased when the owner, driver or occupant of the
carnapped vehicle is killed. The same situation, with escalating punitive
provisions when attended by a killing, are found in the Anti-Piracy and AntiHighway Robbery Law of 1974 (P.D. No. 532, August 8, 1974) and the AntiCattle Rustling Law of 1974 (P.D. No. 533, August 8, 1974), wherein the
principal crimes still are piracy, highway robbery and cattle rustling. Also, in
the matter of destructive arson (Article 320, Revised Penal Code, as last
amended by R.A. No. 7659), the principal offense remains as arson
although the same becomes a capital offense when inter alia, death results
as a consequence of the commission of any of the acts punished under
said article of the Code.
In the present case, the academic value of specifying whether it is a case

of illegal possession of firearm resulting in homicide or murder, or,

conversely, homicide or murder through the illegal possession and use of
an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken
either way, the penalty for aggravated illegal possession of a firearm is the
single indivisible penalty of death, in which case the provision on recidivism
would not apply. If, however, the illegal possession is not established but
either homicide or murder is proved, then the matter of recidivism may
have some significance in the sense that, for purposes thereof, the
accused was convicted of a crime against persons and he becomes a
recidivist upon conviction, or another crime under the same title of the
Code.
Lastly, on the matter of the offense or offenses to be considered and the
penalty to be imposed when the unlawful killing and the illegal possession
are charged in separate informations, from what has been said the
appropriate course of action would be to consolidate the cases and render
a joint decision thereon, imposing a single penalty for aggravated illegal
possession of firearm if such possession and the unlawful taking of life
shall have been proved, or for only the proven offense which may be either
simple illegal possession, homicide or murder per se. The same procedural
rule and substantive disposition should be adopted if one information for
each offense was drawn up and these informations were individually
assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately
from the homicide or murder could be susceptible of abuse since it entails
undue concentration of prosecutorial powers and discretion. Prefatorily, the
fact that the killing was committed with a firearm will necessarily be known
to the police or prosecutorial agencies, the only probable problem being the
determination and obtention of evidence to show that the firearm is
unlicensed.
Now, if a separate information for homicide or murder is filed without
alleging therein that the same was committed by means of an unlicensed
firearm, the case would not fall under Presidential Decree No. 1866. Even if
the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use
of a firearm by itself, even if proved in that case, would not affect the
accused either since it is not an aggravating or qualifying circumstance.
Conversely, if the information is only for illegal possession, with the
prosecution intending to file thereafter the charge for homicide or murder
but the same is inexplicably delayed or is not consolidated with the
information for illegal possession, then any conviction that may result from

the former would only be for simple illegal possession. If, on the other
hand, the separate and subsequent prosecution for homicide or murder
prospers, the objective of Presidential Decree No. 1866 cannot be
achieved since the penalty imposable in that second prosecution will only
be for the unlawful killing and further subject to such modifying
circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the
proposition that the real offense committed by the accused, and for which
sole offense he should be punished, is the aggravated form of illegal
possession of a firearm. Further, it is the writer's position that the possible
problems projected herein may be minimized or obviated if both offenses
involved are charged in only one information or that the trial thereof, if
separately charged, be invariably consolidated for joint decision. Conjointly,
this is the course necessarily indicated since only a single composite crime
is actually involved and it is palpable error to deal therewith and dispose
thereof by segregated parts in piecemeal fashion. (emphasis supplied, with
some footnotes in the original opinion being incorporated in the text by way
of documentation.)
With appropriate respect for the opinions en contra, I take this opportunity
not only to elaborate upon and further clarify my aforequoted views in
Barros but, hopefully, to also cleanse the expanding framework of our
criminal law from ideas which have not grown apace with conceptual
changes over time.
My position in Barros is challenged as being a novel theory which sets
aside the doctrine followed in some cases previously decided by the Court
and the rationale on which they were based. That is understandable, since
the inertia of time has always been the obstacle to the virtues of change.
That mind-set appears to predominate in the action of the majority in the
instant cases.
However, it is precisely for that reason that we are now reviewing those
doctrines, as we have done in a number of cases before, instead of taking
a stance of infallibility. And, if it does turn out that we are mistaken, then in
law and in conscience we must act accordingly, for, as has been said, the
beauty of a mistake is that it can be corrected; the tragedy is that it call be
perpetuated.
I
1. It is obvious that our present problem had its origin in the aforecited case
of People vs. Tac-an where the controversial theory was first laid down that
since one offense (illegal possession of an unlicensed firearm) is penalized
under a special statute while the other (murder) is punished under the
Revised Penal Code, they can be validly prosecuted and punished

separately. The trial court imposed the death penalty in each of said cases,
the offenses having been committed in 1984 with the decision rendered
therein in 1986, but this Court modified those sentences to two penalties of
reclusion perpetua because of the supervenience of the 1987 Constitution.
Significantly, it was explicitly accepted therein that "(a)lthough the
circumstance that human life was destroyed with the use of an unlicensed
firearm is not an aggravating circumstance . . . it may still be taken into
account to increase the penalty to death (reclusion perpetua under the
1987 Constitution) because of the explicit provision of P.D. No. 1866."
2. That mother case of Tac-an gave birth to a progeny of identically-based
decisions, the first being People vs. Tioson 3 where, in addition to the
rationale that the offenses were punished under separate laws, the theory
of separate penalties was further sought to be justified thus: "It does not,
however, follow that the homicide or murder is absorbed in the offense;
otherwise an anomalous absurdity results whereby a more serious crime
defined and penalized in the Revised Penal Code is absorbed by a
statutory offense, which is just a malum prohibitum."
3. Next came People vs. Caling 4 which is notable for lucidly laying down
the distinction between what it categorized for easy reference as the
simple and aggravated forms of illegal possession of unlicensed firearms,
although it adhered to the theory of separate offenses where a killing is
involved but hewing only to the reason that this is because these offenses
are punished by separate laws, as theorized in Tac-an. In Caling, however,
the accused was acquitted and no application of penalties was actually
made.
4. People vs. Jumamoys 5 sustained separate convictions for murder and
the aggravated form of illegal possession of an unlicensed firearm on the
same rationale as Tioson, with an added advertence to People vs.
Doriguez 6 that such separate convictions will theoretically not run afoul of
the prohibition against double jeopardy.
5. This was followed by People vs. Deunida 7 where, on two charges for
murder and aggravated illegal possession of firearms, the accused was
convicted only of the latter offense since the prosecution withdrew the
charge for murder. The Court, in this case, considered the withdrawal of the
indictment for murder as erroneous on the bases of the doctrines in Tac-an,
Caling and Tioson.
6. In People vs. Somooc, 8 the accused who committed homicide with the
use of an illegally possessed unlicensed firearm was charged with and
convicted of the aggravated form of illegal possession and punished by
reclusion perpetua since the offense was committed in 1988. The Court
called attention to the doctrine and ratiocination in Caling.

II
It will, therefore, be observed that "the settled ruling in the aforementioned
cases" is actually a skein drawn from the same single thread originally
introduced by Tac-an and stitched into the jurisprudential fabric with some
permutative designs. It is not necessarily "unfortunate if we should
suddenly depart therefrom" where the benefit of a second view and the
grace of hindsight dictate such a course of action.
The Court will recall the series of cases, when the proscription against the
imposition of the death penalty was still upon us, wherein we initially
provided in our decisions different and inconsistent rules on the proper
periods of the penalty for murder, at that time punishable by reclusion
temporal in its maximum period to death. We eventually settled on
reclusion perpetua as the medium period. 9 Of more recent memory was
the spate of conflicting positions on the penalty for illegal possession and
traffic in dangerous drugs, and the amendments brought about by Republic
Act No. 7659, until we arrived at a solution in People vs. Simon. 10 Nobody
was heard to complain that we were running afoul of the doctrine of stare
decisis, as now appears to be the stance of the majority.
Indeed, if hard cases make bad law, bad law also makes hard cases,
whether what is involved is statutory or case law. Of course, in discharging
our duty of judicial interpretation, there may be not only merit but also
facility, if not the expediency of the slothful path of least resistance, in just
adopting the rule of uniformity on the bases of past decision. But, equally
as commendable as the doctrine of stare decisis itself, is the well-known
and ancient wisdom in the reminder that such doctrine does not mean blind
adherence to precedents.
III
Obviously, because of the reasoning in Tac-an, the majority opinion
emphasizes that in imposing a single penalty of reclusion perpetua for the
qualified violation of Presidential Decree No. 1866 and treating murder
merely as an element of the statutory offense, an incongruous situation
results wherein a more serious crime under the Revised Penal Code, which
is malum in se, is absorbed by a lesser offense under a special law which
is only malum prohibitum. Hence, it was urged during the deliberations that
we should not adopt a novel doctrine which rests on a shaky foundation.
1. The basic premise of this argument is definitely off-tangent. The penalty
for the aggravated illegal possession of unlicensed firearm, in the
terminology of Caling, is the single indivisible penalty of death which would
be imposable regardless of the generic modifying circumstances 11 or of
whether the killing constitutes murder or homicide. The penalty under
Presidential Decree No. 1866 is, therefore, decidedly higher than that for

murder, although it is now reclusion perpetua to death in Republic Act No.

7659, and, being thereby covered by Article 63 of the Code, will be reduced
to reclusion perpetua in the absence of aggravating circumstances. Of
course, it does not even have to be pointed out that the penalty for
homicide is only reclusion temporal in its entire extent.
2. Even assuming arguendo that the penalty for the aforesaid taking of
human life could be higher than the penalty for aggravated illegal
possession which would absorb the former, that is not an unheard-of or
earthshaking legal tableau. The objections to the doctrine of absorption
here is reminiscent of what Judge Agustin P. Montesa reportedly stated, as
quoted in People vs. Hernandez, et al., 12 that: "The theory of absorption
tenaciously adhered to by the defense to the effect that rebellion absorbs
all these more serious offenses is preposterous, to say the least,
considering that it is both physically and metaphysically impossible for a
smaller unit or entity to absorb a bigger one."
Unfortunately, that astute observation was rejected by this Court, and
advisedly so, since we are bound by legal precepts and not by physical or
metaphysical laws. It is now an accepted dictum that the life of the law is
not necessarily logic but experience. These considerations must have
prompted the Court to also defend the doctrine of absorption in treason
cases, 13 holding that more serious offenses committed for treasonous
purposes are absorbed in the former, with the piquant observation in Labra
that "(t)he factual complexity of the crime of treason does not endow it with
the functional ability of worm multiplication or amoeba reproduction."
In the scheme of penalties under the Revised Penal Code, it is accepted
that a lesser offense may absorb a graver offense. As already stated, the
lesser offense of rebellion which is punished by prision mayor absorbs the
graver offense of murder which is now punished by reclusion perpetua to
death, and all other offenses even with higher penalties if committed in
furtherance of rebellion. 14 On a lower level of comparison and closer to the
case at bar, the lesser offense of forcible abduction which is punished by
reclusion temporal 15 absorbs the graver offense of illegal detention of a
woman which is punished by reclusion perpetua to death. 16 The lower
offense of slavery involving the kidnapping of a person which is punished
by prision mayor 17 absorbs the higher offense of kidnapping which is
punished by reclusion perpetua to death. 18
3. Neither should the fact that the aggravated form of illegal possession of
an unlicensed firearm is a malum prohibitum punished by a special law
inveigh against the doctrine of absorption we have adopted in Barros. In
fact, as hereinbefore quoted, Tac-an recognized that the killing should be
taken into account to increase the penalty to death because of the explicit

provision of Presidential Decree No. 1866.

In People vs. Simon, ante, we traced the legal history of crimes punished
under special laws, from the time they were divided by a seemingly
impermeable membrane, because of their American origin and formulation,
from felonies under the Revised Penal Code, which are of Spanish vintage.
We explained how the legal development of adopting the scheme of
penalties in the Revised Penal Code and applying them to those punished
by special laws, markedly starting with subversion in Republic Act No.
1700, resulted in the consequent selective applicability of some provisions
of the Code to special laws, absent an express or implicit prohibition
against such vicarious application. There is decidedly no insuperable
obstacle now to the application of the doctrine of absorption to offenses
provided for or contemplated in Presidential Decree No. 1866.
4. Nor should we hold a "judicial prejudice" from the fact that the two forms
of illegal possession of firearms in Presidential Decree No. 1866 are mala
prohibita. On this score, I believe it is time to disabuse our minds of some
superannuated concepts of the difference between mala in se and mala
prohibita. I find in these cases a felicitous occasion to point out this
misperception thereon since even now there are instances of incorrect
assumptions creeping into some of our decisions that if the crime is
punished by the Revised Penal Code, it is necessarily a malum in se and, if
provided for by a special law, it is a malum prohibitum.
It was from hornbook lore that we absorbed the distinctions given by text
writers, claiming that: (1) mala in se require criminal intent on the part of
the offender; in mala prohibita, the mere commission of the prohibited act,
4regardless of intent, is sufficient; and (2) mala in se refer to felonies in the
Revised Penal Code, while mala prohibita are offenses punished under
special laws.
The first distinction is still substantially correct, but the second is not
accurate. In fact, even in the Revised Penal Code there are felonies which
are actually and essentially mala prohibita. To illustrate, in time of war, and
regardless of his intent, a person who shall have correspondence with a
hostile country or territory occupied by enemy troops shall be punished
therefor. 19 An accountable public officer who voluntarily fails to issue the
required receipt for any sum of money officially collected by him, regardless
of his intent, is liable for illegal exaction. 20 Unauthorized possession of
picklocks or similar tools, regardless of the possessor's intent, is
punishable as such illegal possession. 21 These are felonies under the
Revised Penal Code but criminal intent is not required therein.
On the other hand, I need not mention anymore that there are now in our
statutes so many offense punished under special laws but wherein criminal

intent is required as an element, and which offenses are accordingly mala

in se although they are not felonies provided for in the Code.
IV
1. From the foregoing discussion, I regret that I cannot agree with the
rationalization of the majority that two separate penalties must be imposed
on the same accused because he is supposed to have committed two
separate offenses of (1) illegal possession with murder, and (2) the same
murder per se. The unusual justification is that in the first offense, the
murder is not considered as a separate offense but only to increase the
penalty for the illegal possession, and in the second offense, that same
murder shall now be considered as a separate offense in itself. To make
this theory palatable, the example is given that if the murder is committed
with an unlicensed firearm, the death penalty is imposable, whereas if it is
committed with a licensed firearm, the penalty shall only be reclusion
perpetua.
This concern is evidently due to the fact that Republic Act No. 7659, which
"reimposed" the death penalty for certain heinous crimes, does not include
the offense that we have termed as aggravated form of illegal possession
of firearms which is provided for in the second paragraph of Section 1,
Presidential Decree No. 1866. It approximates, therefore, an obsessive
desire to impose a higher penalty, even if thereby basic principles of
criminal law and the clear provisions of Presidential Decree No. 1866 are to
be disregarded. Should that intent to impose the present penalty for
murder, be subserved by charging that crime separately and then
prosecuting the offender again for using the firearm with which he
committed the same murder? And, will that objective be achieved if the
crime is homicide which has not been affected by Republic Act No. 7659
but will thereby also be subjected to the same double prosecution under
the reasoning of the majority?
It has always been my position that the death penalty was not "abolished"
by the 1987 Constitution, since I had some participation in formulating the
provision involved. It merely provides that the same shall not "be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it," 22 that is, authorizes its imposition. Meanwhile, all
laws which provided for the death penalty remained in force and were
maintained in the statute books despite that constitutional provision since it
did not by itself have the effect of amending or repealing them. Some of
those laws were later expressly repealed or amended by the President in
the exercise of her then legislative powers and, thereafter, some were
repealed or modified by Congress, which even added other heinous crimes
with capital penalties. However, other laws like Presidential Decree No.

1866, which were not thus repealed or amended, retain their present
provisions and effects, except that the death penalty provided by them
would in the meantime be reduced to reclusion perpetua. Parenthetically,
why should the laws concerned be deemed amended or repealed if the
death penalty provided for therein had already been "abolished" by the
Constitution?
Republic Act No. 7659 did not "reimpose" the death penalty on murder.
Article 248 of the Penal Code, which provided for the penalty of reclusion
temporal in its maximum period to death for that crime, was amended by
Republic Act No. 7659, merely to increase the penalty to reclusion
perpetua to death, but it remained in full force even during the interim
except for the fact that the penalty of death could not then be imposed.
That is why the title of Republic Act No. 7659 is "An act to Impose the
Death Penalty in Certain Heinous Crimes, Amending for that purpose, the
Revised Penal Code, . . . ." The same is true with respect to the aggravated
form of illegal possession of firearms, except that the imposition of the
death penalty thereunder is still proscribed.
2. Even if we were to indulge the majority in its thesis on the effects of
Republic Act No. 7659 on Presidential Decree No. 1866, that is, that by the
non-inclusion in the former of the aggravated form of illegal possession
with murder the death penalty cannot be imposed for the murder, that fact
does not warrant and cannot justify the recourse it has adopted as a
judicial dictum. The second paragraph of the aforestated Section 1
expressly and unequivocally provides for such illegal possession and
resultant killing as a single integrated offense which is punished as such.
The majority not only created two offenses by dividing a single offense into
two but, worse, it resorted to the unprecedented and invalid act of treating
the original offense as a single integrated crime and then creating another
offense by using a component crime which is also an element of the
former.
It would already have been a clear case of judicial legislation if the illegal
possession with murder punished with a single penalty had been divided
into two separate offenses of illegal possession and murder with distinct
penalties. It is consequently a compounded infringement of legislative
powers for this Court to now, as it has done, treat that single offense as
specifically described by the law and impose reclusion perpetua therefor
(since the death penalty for that offense is still proscribed), but then
proceed further by plucking out therefrom the crime of murder in order to
be able to impose the death sentence. For indeed, on this score, it is
beyond cavil that in the aggravated form of illegal possession, the
consequential murder (or homicide) is an integrated element or integral

component since without the accompanying death, the crime would merely
be simple illegal possession of a firearm under the first paragraph of
Section 1.
3. The fact that the aggravated form of illegal possession with murder was
not included in Republic Act No. 7659 is a matter for Congress, and not for
this Court, to remedy. A legislative terrain with gaps of omission in the
statute is not terra incognita to the courts, familiar as we are with instances
thereof. The legislature may have committed such omissions in the law for
reasons of its own or through unintended oversight but, unless judicial
remedy is constitutionally permissible, and in the cases at bar it is not, the
courts must await the legislative remedy of amendment or repeal of that
law.
For illustration, we can just again refer to the impasse earlier discussed
regarding the logically absurd penalties for kidnapping in Article 267, in
relation to forcible abduction of a woman under Article 342 and kidnapping
for
slavery in Article 272, all of the Revised Penal Code. A reading of Republic
Act No. 18 23 and Republic Act No. 1084 24 readily reveals that it was the
purpose of Congress by corresponding amendment of the other related
provisions of the Code, to put all forms of kidnapping and serious illegal
detention in Article 267. Yet, in the process, that objective was not fully
subserved by the two amendatory laws since forcible abduction of a
woman, which necessarily involves her kidnapping and detention, as well
as kidnapping for the purpose of enslaving the victim, were overlooked and
not included in the provisions of Article 267. 25
These instances are presented to project the discrepancies in what should
be the appropriate penalties for the aforesaid offenses involved because of
their omission by Congress in the logical taxonomy of crimes. Yet, the
Judiciary stands bound by the aforementioned state of the law on the
matter, and has no attempted to exercise the power reserved for legislative
amendment to suit its perceptions on what the penalties should be for
forcible abduction and slavery. Similarly, the disposition in the cases at bar
is grounded on the omission or non-inclusion of murder through the use of
an illegally possessed firearm in the heinous crimes subject of Republic Act
No. 7659. But, instead of respecting the legislative formulation, the majority
has contrarily decided to disregard the clear import of Presidential Decree
No. 1866 and opted to impose two penalties for what it considers as two
offenses through a bifurcated interpretation.
4. Following that treatment, is the Court now prepared to adopt the same
procedure with regard to similar offenses punished under other decrees?
For example, Presidential Decree No. 532, 26 punishes highway robbery

with murder or homicide with the mandatory penalty of death. Since this
offense has not been included in Republic Act No. 7659 and the death
penalty cannot be imposed, shall this Court also follow the same procedure
of imposing the penalty of reclusion perpetua for the highway robbery with
murder (or homicide) under Presidential Decree No. 532, and then further
impose the death penalty for the same murder under Article 248 of the
Revised Penal Code?
Again, Presidential Decree No. 533 27 imposes the penalty of reclusion
perpetua to death if a person is killed as a result of cattle rustling. This
offense has not been included in Republic Act No. 7659, hence the penalty
can only be reclusion perpetua. By adopting the same rationale in the case
at bar, shall the Court then impose the penalty of reclusion perpetua for
cattle rustling pursuant to Presidential Decree No. 533 and then, if the
killing constitutes murder attended only by an aggravating circumstance,
should it then impose another penalty of death for the same murder under
Article 248 of the Code?
Still further, Presidential Decree No. 534 28 provides that if illegal fishing
with the use of explosives or noxious or poisonous substances results "in
the loss of human life, then the penalty shall be imprisonment from 20
years to life, or death." This offense is not provided for in Republic Act No.
7659, hence the death penalty cannot be imposed; but the killing could
conceivably constitute murder since the use of explosion or poison is a
qualifying circumstance. The inevitable question that must again be posed,
based on the theory adopted here by the majority, is whether or not the
illegal fishing with murder shall be punished with life imprisonment at most
under Presidential Decree No. 534, and then, if only an aggravating
circumstance is present therein, the accused must also be given another
penalty of death under Article 248 of the Code.
We can easily multiply what are clearly perceivable as the dangerous
consequences of the solution contrived by the majority of creating two
offenses and imposing two penalties. I have, however, chosen the
foregoing illustrations involving acts punished under both a presidential
decree and the Revised Penal Code, with murder as a common
denominator, to make my analogies as close as possible to that involving
Presidential Decree No. 1866 in these cases. In truth, the same
problematic situation could be raised and created against any composite
felony in the Code which is considered as a unitary offense and punished
by a single penalty, if the majority's novel theory of duality of offenses with
double penalties were to be applied thereto.
It is rather pointless to essay an unnecessary distinction between the
phrase "as a result or on the occasion of" which refers to the killing

committed in the course of violating Presidential Decrees Nos. 532, 533

and 534, and the killing "with the use" of an illegally possessed firearm
contemplated in Presidential Decree No. 1866. Incidentally, the equivalent
phrase used in the special complex crimes in Articles 294 and 297 of the
Code, in referring to the deaths caused by the malefactor, is "by reason or
on occasion of" the different stages of the robbery therein. But the common
denominator and identity among all the aforesaid composite crimes, for
purposes of the issue under consideration, is that there is a principal
offense, which is separately punishable, and an unlawful killing with a direct
nexus to or connection with that principal offense is also committed.
What is then the focus of the inquiry in the present case which applies with
equal force to the aforestated composite crimes is merely whether or not,
apart from and in addition to the penalty imposable on the offender if he
violates any of the foregoing decrees or commits robbery in any of its
stages and which penalty is increased precisely if accompanied by an
unlawful killing, he should be further and separately punished for such
homicidal or murderous taking of human life. The implacable question is
whether or not two separate penalties should be imposed on him for killing
the same victim since those decrees and the Code already provide a single
but increased penalty for the crimes therein if accompanied by an unlawful
killing and thereby constituting a composite crime. Whether the death of the
victim supervened as "a result or on the occasion," or "by reason or on
occasion," or "with the use" of the firearm or poisonous substances availed
of by the accused is im material even if liberally viewed in the context of the
mens rea as proposed by the majority.
5. Prescinding from the substantive aspect and shifting to the procedural
and constitutional view, I am also bothered by the impact of the majority
opinion upon the rule on double jeopardy. I am referring, of course, to
double jeopardy arising from prosecutions for the same offense under two
or more laws as contemplated in the Rules of Court, 29 and not to the
special situation under the Constitution 30 involving a prosecution for the
same act punished under a law and an ordinance, as clarified in People vs.
Relova, etc., et al. 31 In the first kind of double jeopardy for purposes of this
discussion, what is determinative is the identity of the offense, hence the
"same-evidence" test applies, that is, that the facts alleged and proven in
one charge would, based on the same evidence, suffice to support the
second charge, and vice-versa. 32 Accordingly, the citation by the majority
of People vs. Doriquez 33 is of no moment, since it refers to a single act
offending against two entirely distinct and unrelated provisions of law one
of which requires proof of an additional fact or element, hence different and
not identical offenses are involved.

In the cases now before us, it is difficult to assume that the evidence for the
murder in the first charge of aggravated illegal possession of firearm with
murder would be different from the evidence to be adduced in the
subsequent charge for murder alone. In the second charge, the illegal
possession is not in issue, except peripherally and inconsequentially since
it is not an element or modifying circumstance in the second charge, hence
the evidence therefor is immaterial. But, in both prosecutions, the evidence
on murder is essential, in the first charge because without it the crime is
only simple illegal possession, and, in the second charge, because murder
is the very subject of the prosecution. Assuming that all the other
requirements under Section 7, Rule 117 are present, can it be doubted that
double jeopardy is necessarily present and can be validly raised to bar the
second prosecution for murder? 34
In fact, we can extrapolate this constitutional and reglementary objection to
the cases of the other composite crimes for which a single penalty is
imposed, such as the complex, compound and so-called special complex
crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the
same offense of either estafa or falsification; or how the accused convicted
of robbery with homicide under Article 294 can be legally charged again
with either of the same component crimes of robbery or homicide; or how
the convict who was found guilty of rape with homicide under Article 335
can be duly haled before the court again to face charges of either the same
rape or homicide. Why, then, do we now sanction a second prosecution for
murder in the cases at bar since the very same offense was an
indispensable component for the other composite offense of illegal
possession of firearm with murder? Why would the objection of non bis in
idem as a bar to a second jeopardy lie in the preceding examples and not
apply to the cases now before us?
The majority comes up with the so-called "additional element" test to take
the issue out of the rule on double jeopardy, citing for that purpose Yap vs.
Lutero 35 and People vs. Relova, etc., et al. 36 These cases are not actually
in point since they are primarily concerned with the question of double
jeopardy where the same offense is punished by two statutes or different
sections of the same statute, as contrasted with double jeopardy arising
from the same act punished by a law and likewise by an ordinance, as has
earlier been explained. The distinction is not germane here since there is
no punitive ordinance involved in the case at bar. This proposition of the
majority, however, bears discussion.
I do not gainsay the validity of the "additional element test," if properly
understood and correctly applied. As I have written elsewhere, it is a

cardinal rule that the protection against double jeopardy may be invoked
only for identical offenses or where an offense necessarily includes or is
necessarily included in the other offense. However, it has also long been
held that a single act may offend against two or more entirely distinct and
unrelated provisions of law, and if one provision requires proof of an
additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar
prosecution under the other. 37 That is because the two offenses continue
to exist independently of each other, with their respective penalties
remaining unaffected by the commission of or penalty for the other offense.
This is illustrated by the considerations in the present rule that Batas
Pambansa Blg. 22, which punishes the mere issuance of bouncing checks,
is not a bar to another prosecution for estafa through the use of bouncing
checks under paragraph 2(d), Article 315 of the Revised Penal Code. 38
The rationale therefor is that the issuance per se of a bouncing check is
ipso jure punishable under Batas Pambansa Blg. 22, but to be punishable
as estafa under the Code, the additional elements of deceit and damage
are required. Also, while the former offense requires the drawer's
knowledge of lack or insufficiency of funds in the drawee bank at the time
the check is issued, the aforesaid provision on estafa does not so require.
The penalty for the former is fixed by Section 1 of said law without regard
to the damage caused or even without such damage, whereas the penalty
for estafa through bouncing checks is determined by the damage to the
offended party. 39 Lastly, Section 5 of Batas Pambansa Blg. 22 provides
that prosecution thereunder "shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code."
These features are absent in the integrated offense of murder or homicide
with the use of an illegally possessed firearm. It is true that mere illegal
possession has a specific lower penalty in Presidential Decree No. 1866,
and murder or homicide have their own specific penalties in Articles 248
and 249 of the Code. However, the moment both erstwhile separate
offenses juridically unite, we have what for expediency has been called by
this Court an aggravated form of illegal possession of firearm punishable
by the two highest penalties of reclusion perpetua to death. We cannot
speak here, therefore, of the "additional element test" which presupposes
and requires that the two offenses remain distinct from each other, with the
discrete penalty for one being immune from that for the other. What,
instead, transpired in Presidential Decree No. 1866 is a unification or
merger in law of both offenses of illegal possession of firearm and murder
or homicide, with each of them becoming a component offense in a new
and different composite crime punished by another and gravely higher

penalty.
V
1. The apprehension was also aired in our deliberations that the ruling in
Barros may provide dishonest prosecutors with unfettered discretion to
charge parties who commit illegal possession of firearms in its aggravated
form not with the said offense but only with homicide or murder with one
qualifying circumstance, and without any generic aggravating
circumstance, so that by such strategy the accused would thereby get only
the minimum period of the penalty.
As long as we live in a world of men and not of angels, there will always be
that legitimate fear over the possible excesses of officialdom. There are,
however, a plenitude of remedies provided by law for such a contingency,
either criminal, civil or administrative in nature. In fact, if that act of the
public prosecutor amounts to a refusal to perform a specific duty imposed
on him by law, his nonfeasance could even be controlled by an action for
mandamus and he can be compelled to charge the proper offense in the
information. 40
2. Again, drawing from the experience in Deunida where only the
aggravated illegal possession charge proceeded while that for homicide
was withdrawn, then on the submission that no private interest had to be
protected therein, no private prosecutor could appear for the victim. Indeed,
it was stated in said case: "No private interest is therefore involved. The
civil liability arising from death may be the subject of a separate civil action
or impliedly instituted with the criminal action for murder or homicide." The
Court then ordered the deletion of the award of civil liability ex delicto.
It is my stand that even under such circumstances, the trial court may
justifiedly assess and award the corresponding damages to the heirs of the
victim. This is not one of the so-called "victimless crimes" where, by the
very nature of the crime, no damages can possibly be sustained by a
private party, such as espionage, violation of neutrality, flight to enemy
country or crimes against popular representation. 41 Where the victim was
killed under the circumstances contemplated in Presidential Decree No.
1866, I see no reason why the case should be excepted from the
fundamental rule that every person criminally liable is civilly liable. 42 Thus,
while the crime of rebellion is directed against the Government, yet in the
rebellion cases decided by this Court, corresponding awards for civil
damages were invariably granted so long as the offense which caused the
damage was proved and the victim and the malefactor or the property
involved were duly identified by satisfactory evidence.
3. The advertence to People vs. De Gracia, et al., 43 the decision wherein
was penned by this writer, overlooks or fails to mention that the same was

decided under the aegis of the doctrines in the cases hereinbefore

enumerated, specifically the Tioson case, to which we then had to defer as
they constituted the prevailing rule, but which are now sought to be
revisited in the instant case in light of Barros.
The statement in De Gracia that "(i)t was a legal malapropism for the lower
court to interject the aforestated provision of the Revised Penal Code in
this prosecution for a crime under a special law," referred to the action of
the trial court in recommending executive clemency for the accused.
Although there are some contrary views on the matter, the writer held that
Article 5 of the Code does not apply to convictions under a special law
where such application, as earlier stated, is expressly or impliedly
prohibited. Said Article 5 expressly provides for the authority of the court to
recommend executive clemency "when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty." Since, at that time the legal interplay between Presidential Decree
No. 1866 and the penalties "borrowed" for it from the Revised Penal Code
was still amorphous, this writer had to make those pronouncements in said
case, but, precisely, the same are now being reexamined in the present
cases.
I am aware that I have raised a number of what may appear as
discomposing views but these should provoke a more thorough
reexamination of the issues in these cases. On the other hand, I apprehend
that the decision handed down herein may have opened a Pandora's box
of legal curiosities and the swarm thus released will in due time return to
the Court to roost. I can only hope that the Court's mavens of penal law
who are responsible for the majority opinion here can fortify the same to
meet the diverse and adverse reactions that it will predictably create.
On the foregoing premises, I respectfully but vigorously register my dissent
on the points indicated and for the reasons advanced therefor.
Narvasa, C.J., Romero, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Footnotes
1 Original Records (OR), Criminal Case No. 8178, 71-80; Rollo, 7-15. Per
Judge Antonio H. Bautista.
2 182 SCRA 601 [1990].
3 198 SCRA 368 [1991].
4 208 SCRA 821 [1992].
5 221 SCRA 333 [1993].
6 231 SCRA 520 [1994].
7 236 SCRA 458 [1994].
8 239 SCRA 174 [1994].
9 244 SCRA 731 [1995].

10 245 SCRA 312 [1995].

11 OR, Criminal Case No. 8178, 31-32; Rollo, 3.
12 Id., Criminal Case No. 8179, 14; Id., 4.
13 Rollo, 81-85.
14 Exhibit "A" (Medico-Legal Certificate issued by Dr. Gregg Julius
Sodusta), Folder of Exhibits, 1.
15 Exhibit "A," Folder 5 Exhibits, 1 (see note 14).
16 Exhibit "C-1," Id., 4.
17 Exhibit "C," Id., 3.
18 OR, Criminal Case No. 8178, 76; Rollo, 11.
19 OR, Criminal Case No. 8178, 79-80; Rollo, 14-15.
20 OR, Criminal Case No. 8178, 81.
21 Id., 82.
22 Rollo, 42-43.
23 TSN, 8 June 1993, 29.
24 TSN, 8 June 1993, 10-12.
25 Id., 31.
26 People vs. de Guzman, 188 SCRA 407 [1990]; People vs. De Leon, 245
SCRA 538 [1995]; People vs. Delovino, 247 SCRA 633 [1995].
27 People vs. Delovino, supra note 26, citing Creamer vs. Bivert, 214 MO
473, 474 [1908], cited in M. FRANCES MCNAMARA, 200 Famous Legal
Quotations [1967], 548.
28 People vs. Fernandez, 209 SCRA 1 [1992]; People vs. Pablo, 213
SCRA 1 [1992]; People vs. Casinillo, 213 SCRA 777 [1992]; People vs.
Gomez, 235 SCRA 444 [1994].
29 Section 3(m), Rule 13, Rules of Court.
30 People vs. Taneo, 218 SCRA 494 [1993]; People vs. Kyamko, 222
SCRA 183 [1993]; People vs. Enciso, 223 SCRA 675 [1993]; People vs.
Pamor, 237 SCRA 462 [1994].
31 People vs. Penillos, 205 SCRA 546 [1992]; People vs. Florida, 214
SCRA 227 [1992]; People vs. Castor, 216 SCRA 410 [1992].
32 TSN, 30 July 1993, 3-4.
33 Article 13(7), Revised Penal Code.
34 People vs. Comia, 236 SCRA 185 [1994]; People vs. Enciso, supra note
30.
35 Supra note 2.
36 Supra note 3.
37 Supra note 4.
38 Supra note 5.
39 Supra note 6.
40 Supra note 7.

41 Supra note 8.
42 Supra note 9.
43 Supra note 10.
44 233 SCRA 716 [1994].
45 50 Am. Jur., Statutes, 229, 214-215. See RUPERTO G. MARTIN,
Statutory Construction [1979], 2.
46 Articles 248 and 249, respectively, Revised Penal Code.
47 Article 3, Id.
48 Any penal law punishing acts which are not treated and penalized by the
Revised Penal Code is a special penal law (U.S. vs. Serapio, 23 Phil. 584
[1912]; GUILLERMO B. GUEVARRA, Penal Sciences and Philippine
Criminal Law [1974], 24).
49 Veroy vs. Layague, 210 SCRA 97 [1992]; People vs. Jumamoy, supra
note 5, People vs. De Gracia, supra note 44.
50 People vs. De Gracia supra note 44.
51 Victoria vs. COMELEC, 229 SCRA 269 [1994].
52 Libanan vs. Sandiganbayan, 233 SCRA 163 [1994].
53 94 Phil. 714 [1954]
54 105 Phil. 1307 [1959]
55 148 SCRA 292, 303-304 [1987].
56 People vs. Relova, supra note 55.
57 Id., at 306.
58 Blockburger vs. United States, 284 U.S. 299-305 [1932]; Gore vs. U.S.,
357 U.S. 386, 2 L ed 2d 1405, 78 S Ct 1280 [1958]; Missouri vs. Hunter,
459 U.S., 359, 74 L Ed 2d 535, 103 S Ct 673 [1983].
59 People vs. Relova, supra note 55, at 301. See also, VICENTE M.
MENDOZA, From Mckinley's Instructions to the New Constitution:
Documents on the Philippine Constitutional System [1978], 80, 118.
HERMOSISIMA, Jr., J., concurring
1 245 SCRA 312.
2 Aquino, Ramon, The Revised Penal Code, 1987 Edition, p. 7.
3 People vs. Pomar, 46 Phil. 440, 455.
4 United States vs. Pablo, 35 Phil. 94, 100.
5 United States vs. Go Chico, 14 Phil. 128, 131.
6 Ibid, pp. 136, 138.
7 Ibid, p. 135.
8 233 SCRA 716.
9 People vs. De Gracia, supra, at pp. 725-726.
10 People vs. De Gracia, supra, 725; Separate Opinion of Justice
Regalado in People vs. Barros, 245 SCRA 312, 325; People vs. Tiozon,
198 SCRA 368, 379; Baylosis vs. Chavez, 202 SCRA 405, 412.

11 Misolas vs. Panga, 181 SCRA 648, 659-660.

12 People vs. Caling, 208 SCRA 821, 826; People vs. Somooc, 244 SCRA
731, 738.
13 P.D. No. 1866.
14 People vs. Caling, supra; People vs. Somooc, supra.
15 People vs. Caling, supra.
16 People vs. De Gracia, 233 SCRA 716, 732.
17 People vs. Barros, 245 SCRA 312, 324.
18 245 SCRA 312.
19 Mabbott, J.D., "Punishment," in Morality in Criminal Justice by Daryl
Close and Nicholas Meier, 1995 Edition, p. 434.
20 People vs. Doriquez, 24 SCRA 163, 171-172.
21 Southern Pacific Co. vs. Jensen, 244 U.S. 205, 221.
22 234 SCRA 555.
23 People vs. Alger, 92 Phil. 227; People vs. Garcia, 92 Phil. 195; People
vs. Maalihan, 53 Phil. 295; United States vs. Labai, 17 Phil. 240.
24 "An Act to Impose the Death Penalty on Certain Heinous Crimes,
Amending for that Purpose the Revised Penal Code, as Amended, other
Special Penal Laws, and for Other Purposes."
25 Section 6, Republic Act No. 7659.
26 Republic Act No. 6425, as amended.
27 Republic Act No. 6539.
REGALADO, J., concurring and dissenting
1 G.R. Nos. 76338-39, February 26, 1990, 182 SCRA 601.
2 G.R. Nos. 101107-08, June 27, 1995, 245 SCRA 312.
3 G.R. No. 89823, June 19, 1991, 198 SCRA 368.
4 G.R. No. 94784, May 8, 1992, 208 SCRA 821.
5 G.R. No. 101584, April 7, 1993, 221 SCRA 333.
6 G.R. Nos. L-24444-45, July 29, 1968, 24 SCRA 163.
7 G.R. Nos. 105199-200, March 28, 1994, 231 SCRA 520.
8 G.R. No. 100921, June 2, 1995, 244 SCRA 731.
9 People vs. Muoz, et al., G.R. Nos. L-38969-70, February 9, 1989, 170
SCRA 107.
10 G.R. No. 93028, July 29, 1994, 234 SCRA 555.
11 Art. 63, Revised Penal Code.
12 99 Phil. 515 (1956).
13 People vs. Prieto, 80 Phil. 138 (1948); People vs. Labra, 81 Phil. 377
(1948); People vs. Adlawan, 83 Phil. 194 (1949).
14 People vs. Hernandez, supra.
15 Art. 342, Revised Penal Code.
16 Art. 267, id.

17 Art. 272, id.

18 Art. 267, id.
19 Art. 120, pars. 1 and 2, id.
20 Art. 213, par. 2(b), id.
21 Art. 304, id. This is to be distinguished from possession of instruments
or implements for falsification which is punishable under Art. 176 only if the
offender possesses the same "with the intention of using them."
22 Sec. 19(I), Art. III, Constitution.
23 Effective September 25, 1946.
24 Effective June 15, 1954.
25 For that matter, even the epigraph of Article 270 still reads "kidnapping
and failure to return a minor" although the original first paragraph of Article
270 on kidnapping of a minor was transposed to Article 267, and only the
second paragraph of Article 270 on failure to return a minor was retained
and continues to be punished therein.
26 Anti-Piracy and Anti-Highway Robbery Law of 1974, effective August 8,
1974. Its provisions on piracy, however, have been incorporated by Sec. 3,
R.A. No. 7659 in Arts. 122 and 123 of the Code, with amendments.
27 Anti-Cattle Rustling Law of 1974, effective August 8, 1974.
28 Defining illegal fishing with stiffer penalties, effective August 8, 1974.
29 Sec. 7, Rule 117, in relation to Sec. 5, Rule 120.
30 Sec. 21, Art. III.
31 G.R. No. L-45129, March 6, 1987, 148 SCRA 292.

32 People vs. Diaz, 94 Phil. 714 (1954).

33 Supra, Fn. 6.
34 Under the same assumption, double jeopardy can also be raised even if
there has been no prior conviction for one of the offenses but both charges
are pending and the accused has been arraigned in the first charge, as
pointed out by this writer in his opinion in People vs. Pineda, etc., et al. (L44205, February 16, 1993, 219 SCRA 1).
35 105 Phil. 1307 (1959).
36 Fn. 31, ante.
37 U.S. vs. Capurro, et al., 7 Phil 24 (1990); People vs. Bacolod, 89 Phil.
621 (1951).
38 Lozano vs. Martinez, etc., et al., G.R. No. 63419, December 18, 1986,
146 SCRA 323, and companion cases, which upheld the constitutionality of
the law as a valid exercise of police power.
39 The commission or prosecution for either offense does not in any way
affect the specific penalties imposed for each of them. It was P.D. No. 818
which was issued to increase the penalty for estafa through bouncing
checks.
40 Bernabe vs. Bolinas, Jr., etc., et al., G.R. No. L-22000, November 29,
1966, 18 SCRA 812.
41 People vs. Orais, et al., 65 Phil. 744 (1938).
42 Art. 100, Revised Penal Code.
43 G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.