EN BANC

[G.R. No. L-5793. August 27, 1953.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . ALBERTO

ESTOISTA , defendant-appellant.

Ramon Diokno and Jose W. Diokno for appellant.

First Assistant Solicitor General Ruperto Kapunan Jr. and Acting Solicitor Antonio
Consing for appellee.

SYLLABUS

1. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS. — It being

established that the defendant was alone when he walked to the plantation where he
was to hunt with the rifle of his father, in whose name the firearm was licensed, and that
the son, away from his father's sight and control, carried the gun for the only purpose of
using it, as in fact he did with fatal consequences, the evidence support the son's
conviction for the offense of illegal possession of firearm which was in accordance
with law.
2. ID.; ID.; U. S. vs. SAMSON (16 Phil., 323), EXPLAINED. — The implied
holding in U. S. vs. Samson (16 Phil., 323) that the intention to possess is an essential
element of a violation of the Firearms Law was not intended to imply title or right to the
weapon to the exclusion of everyone else. The court did not mean only intention to own
but also intention to use. From the very nature of the subject matter of the prohibition,
control or dominion of the use of the weapon by the holder regardless of ownership is,
of necessity, the essential factor.
3. ID.; ID.; ID.; MEANING OF THE TERMS "CONTROL" AND "DOMINION." — The
terms "control" and "dominion" are relative terms not susceptible of exact definition,
and opinions on the degree and character of control or dominion sufficient to
constitute a violation vary. The rule laid down by United States courts - rule which we
here adopt - is that temporary, incidental, casual or harmless possession or control of a
firearm is not violation of a statute prohibiting the possessing or carrying of this kind of
weapon. A typical example of such possession is where "a person picks up a weapon or
hands it to another to examine or hold for a moment, or to shoot at some object."
(Sanderson vs. State, 5 S.W., 138; 68 C. J., 22.)
4. CONSTITUTIONAL LAW; CRUEL AND UNUSUAL PUNISHMENT; PENALTY
PROVIDED FOR IN REPUBLIC ACT NO. 4 DEEMED CONSTITUTIONAL. — Without
deciding whether the prohibition of the Constitution against infliction of cruel and
unusual punishment applies both to the form of the penalty and the duration of
imprisonment, confinement from 5 to 10 years for possessing or carrying firearm is not
cruel or unusual, having due regard to the prevalent conditions which the law proposes
to curb.

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 5. CRIMINAL LAW; PENALTIES; ILLEGAL POSSESSION OF FIREARM. — As
Republic Act No. 4 provides a penalty of from 5 to 10 years imprisonment for illegal
possession of a firearm, the court can not but impose upon the offender the minimum
at least of the penalty provided. In this case, however, considering the degree of malice
of the defendant, application of the law to its full extent would be too harsh, and a
recommendation is made to the President to reduce to fix months the penalty imposed
upon this defendant.
6. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; CONSTITUTIONAL
LAW; CRUEL AND UNUSUAL PUNISHMENT; FIVE YEARS' IMPRISONMENT, NOT CRUEL
AND UNUSUAL. — To come under the constitutional ban against cruel and unusual
punishment, the penalty imposed must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of the
community." (24 C. J. S., 1187-1188.) Five years' confinement for possessing firearms
can not be said to be cruel and unusual, barbarous, or excessive to the extent of being
shocking to public conscience.
7. ID.; ID.; CONFISCATION OF FIREARMS BELONGING TO A PERSON OTHER
THAN THE DEFENDANT. — Section 1 of Republic Act No. 4 does not say that firearms
unlawfully possessed or carried are to be confiscated only if they belong to the
defendant, nor is such intention deducible from the language of the Act. Except perhaps
where the lawful owner was innocent of, or without fault in, the use of his property by
another, confiscation accords with the legislative intent. Ownership or possession of
firearms is not a natural right protected by the constitutional prohibition against
depriving one of his property without due process of law. Above the right to own
property is the inherent attribute of sovereignty — the police power of the state to
protect its citizens and to provide for the safety and good order of society. (16 C. J. S.,
539, 540.) Pursuant to the exercise of police power, the right to private property may be
limited, restricted, and impaired so as to promote the general welfare, public order and
safety. (Id., 611). The power of the legislature to prohibit the possession of deadly
weapon carries with it the power to provide for the confiscation or forfeiture of
weapons unlawfully used or allowed by the licensed owner to be used.

DECISION

TUASON , J : p

Prosecuted in the Court of First Instance of Lanao for homicide through

reckless imprudence and illegal possession of rearm under one information, the
appellant was acquitted of the rst offense and found guilty of the second, for
which he was sentenced to one year imprisonment. This appeal is from that
sentence raising factual, legal and constitutional questions. The constitutional
question, set up after the submission of the briefs, has to do with the objection
that the penalty — from 5 to 10 years of imprisonment and nes — provided by
Republic Act No. 4 is cruel and unusual.
As to the facts. The rearm with which the appellant was charged with
having in his possession was a ri e and belonged to his father, Bruno Estoista,
who held a legal permit for it. Father and son lived in the same house, a little
distance from a 27-hectare estate belonging to the family which was partly
covered with cogon grass, tall weeds and second growth trees. From a spot in the
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 plantation 100 to 120 meters from the house, the defendant took a shot at a wild
rooster and hit Diragon Dima, a laborer of the family who was setting a trap for
wild chickens and whose presence was not perceived by the accused.
The evidence is somewhat con icting on whether the owner of the ri e was
with the accused at the time of the accidental killing.
Bruno Estoista testi ed that on the morning of the accident, February 10,
1949, his son told him that there were wild chickens on the plantation "scratching
palay and corn" plants and asked if he might shoot them; that Bruno told his son to
wait, got the ri e from the house or locker, handed it over to Alberto who is a
"sharp- shooter" and "shoots better," and walked about 20 meters behind the
young man; that Bruno was that far from Alberto when the latter red and
accidentally wounded their servant.
The defendant's key testimony is: "When I heard wild rooster crowing I told
my father about the said wild rooster crowing near our house and he told me to
shoot the said wild rooster, so I went to shoot it."
Bruno's testimony at the trial is in direct contradiction to his and his son's
statements at the Constabulary headquarters on the same morning of the
shooting, and sworn to by them before the justice of the peace soon after.
Bruno related on that occasion that Alberto "went to hunt for wild roosters;"
that "later on my son Alberto came to inform me that he had accidentally hit our
laborer;" that thereupon he "went with my son to see what happened." Queried
"who was with Alberto when he went out hunting," Bruno replied, "He was alone."
On his part, the defendant declared on the same occasion that Diragon
Dima, after being shot, requested to be taken to his (Dima's) house; that as the
accused was able to carry the wounded man on]y about 50 meters, Dima asked
the defendant to call Bruno "who was in the house" — which Alberto did. To the
question who his companion was when he shot at a rooster, Alberto said, "I was
alone."
There is not the slightest ground to believe that these af davits contained
anything but the truth, especially that part regarding Bruno's whereabouts when
the defendant used the ri e. Both af ants are very intelligent, the af davits were
executed immediately upon their arrival at the Constabulary headquarters, there is
no hint of any undue pressure brought to bear upon either of them, and, above all,
they stood to gain nothing from the statement that the accused was
unaccompanied. In contrast, Bruno's testimony in court was interested, given with
his son's acquittal in view. And especially is the father's veracity in court to be
distrusted because by Alberto's unsolicited admission, he had been in the habit of
going out hunting in other places and for target practices, and because by Bruno's
unwitting admission, his son, who had no gun of his own, is a sharpshooter and
shoots better.
It being established that the defendant was alone when he walked to the
plantation with his father's gun, the next question that presents itself is: Does this
evidence support conviction as a matter of law?
In United States vs. Samson (16 Phil., 323), cited by defense counsel, it was
held that carrying a gun by order of the owner does not constitute illegal
possession of rearm. The facts in that case were that a shotgun and nine
cartridges which belonged to one Pablo Padilla, who had a proper permit to
possess them, were seized by the police from Samson while walking in the town
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 of Santa Rosa, Nueva Ecija. Padilla was to use the shotgun in hunting that day and,
as he was coming along on horseback, sent Samson on ahead.
Republic Act No. 4, amending section 2692 of the Revised Administrative
Code, in its pertinent provision is directed against any person who possesses any
rearm, ammunition therefor, etc. A point to consider in this connection is the
meaning of the word "possesses. "It goes without saying that this word was
employed in its broad sense so as to include "carries" and "holds." This has to be
so if the manifest intent of the Act is to be effective. The same evils, the same
perils to public security, which the Act penalizes exist whether the unlicensed
holder of a prohibited weapon be its owner or a borrower. To accomplish the
object of this law the proprietary concept of the possession can have no bearing
whatever. "Ownership of the weapon is necessary only insofar as the ownership
may tend to establish the guilt or intention of the accused." It is remarkable that in
the United States, where the right to bear arms for defense is ensured by the
federal and many state constitutions, legislation has been very generally enacted
severely restricting the carrying of deadly weapons, and the power of state
legislatures to do so has been upheld.

In the light of these considerations, it is a mistake to point to United States

vs. Samson, supra, as authority for the appellant's plea for acquittal. The implied
holding in that case that the intention to possess is an essential element of a
violation of the Firearms Law was not intended to imply title or right to the weapon
to the exclusion of everyone else. The court did not mean only intention to own but
also intention to use. From the very nature of the subject matter of the prohibition
control or dominion of the use of the weapon by the holder regardless of
ownership is, of necessity, the essential factor.
The terms "control" and "dominion" themselves are relative terms not
susceptible of exact de nition, and opinions on the degree and character of
control or dominion suf cient to constitute a violation vary. The rule laid down by
United States courts — rule which we here adopt — is that temporary, incidental,
casual or harmless possession or control of a rearm is not a violation of a
statute prohibiting the possessing or carrying of this kind of weapon. A typical
example of such possession is where "a person picks up a weapon or hands it to
another to examine or hold for a moment, or to shoot at some object." (Sanderson
vs. State, 5 S.W., 138; 68 C.J., 22)
Appellant's case does not meet the above test. His holding or carrying of his
father's gun was not incidental, casual, temporary or harmless. Away from his
father's sight and control, he carried the gun for the only purpose of using it, as in
fact he did, with fatal consequences.
Incidentally, herein lies a fundamental difference between the case at bar
and the Samson case. Although Samson had physical control of his employer's
shotgun and cartridges, his possession thereof was undoubtedly harmless and
innocent, as evidenced by the fact that, apparently, he bore them in full view of the
people he met and of the authorities. Unlike the appellant herein, Samson carried
the gun solely in obedience to its owners order or request without any inferable
intention to use it as a weapon. It is of interest to note that even in the United
States where, as stated, the right to bear arms as a means of defense is
guaranteed, possession such as that by Samson is by the weight of authority
considered a violation of similar statutes.
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 Without deciding whether the prohibition of the Constitution against
in iction of cruel and unusual punishment applies both to the form of the penalty
and the duration of imprisonment, it is our opinion that con nement from 6 to 10
years for possessing or carrying rearm is not cruel or unusual, having due regard
to the prevalent conditions which the law proposes to suppress or curb. The
rampant lawlessness against property, person, and even the very security of the
Government, directly traceable in large measure to promiscuous carrying and use
of powerful weapons, justify imprisonment which in normal circumstances might
appear excessive. If imprisonment from 5 to 10 years is out of proportion to the
present case in view of certain circumstances, the law is not to be declared
unconstitutional for this reason. The constitutionality of an act of the legislature is
not to be judged in the light of exceptional cases. Small transgressors for which
the heavy net was not spread are, like small shes, bound to be caught, and it is to
meet such a situation as this that courts are advised to make a recommendation
to the Chief Executive for clemency or reduction of the penalty. (Art. 5, Revised
Penal Code; People vs. De la Cruz, 92 Phil. 906.)
The sentence imposed by the lower court is much below the penalty
authorized by Republic Act No. 4. The judgment is therefore modi ed so as to
sentence the accused to imprisonment for ve years. However, considering the
degree of malice of the defendant, application of the law to its full extent would be
too harsh and, accordingly, it is ordered that copy of this decision be furnished to
the President, thru the Secretary of Justice, with the recommendation that the
imprisonment herein imposed be reduced to six months. The appellant will pay the
costs of both instances.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista
Angelo and Labrador, JJ., concur.
RESOLUTION
December 3, 1953
TUASON, J.:
The constitutionality of Republic Act No. 4, with reference to the penalty
therein provided, was carefully considered. In branding imprisonment for ve
years too harsh and out of proportion in this case, we had in mind that six months
was commensurate and just for the appellant's offense, taking into consideration
his intention and the degree of his malice, rather than that it infringes the
constitutional prohibition against the infliction of cruel and unusual punishment.
It takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution. "The fact that the
punishment authorized by the statute is severe does not make it cruel and
unusual." (24 C. J. S., 1187- 1188.) Expressed in other terms, it has been held that
to come under the ban, the punishment must be " agrantly and plainly oppressive,"
"wholly disproportionate to the nature of the offense as to shock the moral sense
of the community."( Idem.) Having in mind the necessity for a radical measure and
the public interest at stake, we do not believe that ve years' con nement for
possessing rearms, even as applied to appellant's and similar cases, can be said
to be cruel and unusual, barbarous, or excessive to the extent of being shocking to
public conscience. It is of interest to note that the validity on constitutional
grounds of the Act in question was contested neither at the trial nor in the
elaborate printed brief for the appellant; it was raised for the rst time in the
course of the oral argument in the Court of Appeals. It is also noteworthy, as
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 possible gauge of popular and judicial reaction to the duration of the
imprisonment stipulated in the statute, that some members of the court at rst
expressed opposition to any recommendation for executive clemency for the
appellant, believing that he deserved imprisonment within the prescribed range.
The suf ciency of the evidence for appellant's conviction under Republic Act
No. 4 likewise had received close attention and study. There is no need on our part
to add anything to what has been said, except to point out for clari cation that the
references to defendant's previous uses of his father's gun and the fatal
consequences of his last use of it, were made simply to emphasize that his
possession of the prohibited weapon was not casual, incidental, or harmless. His
previous conduct was relevant in determining his motive and intention, and to
disprove the claim that his father followed his son so as not to lose control of the
rearm. It was far from the thought of the court to condemn the appellant for acts
with which he had not been charged or of which he had been pronounced innocent.
The con scation of the gun is, in our opinion, in accordance with section 1
of Republic Act No. 4, which reads:
"SECTION 1. Section twenty-six hundred and ninety-two of the
Revised Administrative Code, as amended by Commonwealth Act Numbered
fifty-six, is hereby further amended to read as follows:
"SEC. 2692. Unlawful manufacture, dealing in, acquisition,
disposition, or possession of rearms, or ammunition therefor, or instrument
used or intended to be used in the manufacture of rearms or ammunition .
— Any person who manufactures, deals in, acquires, disposes, or possesses,
any rearm, parts of rearms, or ammunition therefor, or instrument or
implement used or intended to be used in the manufacture of rearms or
ammunition in violation of any provision of sections eight hundred and
seventy-seven to nine hundred and six, inclusive, of this Code, as amended,
shall, upon conviction, be punished by imprisonment for a period of not less
than one year and one day nor more than ve years, or both such
imprisonment and a ne of not less than one thousand pesos nor more than
ve thousand pesos, in the discretion of the court. If the article illegally
possessed is a ri e, carbine, grease gun, bazooka, machine gun,
submachine gun, hand grenade, bomb, artillery of any kind or ammunition
exclusively intended for such weapons, such period of imprisonment shall
be not less than ve years nor more than ten years. A conviction under this
section shall carry with it the forfeiture of the prohibited article or articles to
the Philippine Government.
"The possession of any instrument or implement which is directly
useful in the manufacture of rearms or ammunition on the part of any
person whose business or employment does not deal with such instrument
or implement shall be prima facie proof that such article is intended to be
used in the manufacture of firearms or ammunition."
This provision does not say that rearms unlawfully possessed or carried
are to be con scated only if they belong to the defendant, nor is such intention
deducible from the language of the act. We are inclined to, and do, believe that,
except perhaps where the lawful owner was innocent of, or without fault in, the use
of his property by another, confiscation accords with the legislative intent.
We can foresee the objection that such legislation deprives one of his
property without due process of law. The answer to this is that ownership or
possession of rearms is not a natural right protected by the Constitution. Above
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 the right to own property is the inherent attribute of sovereignty - the police power
of the state to protect its citizens and to provide for the safety and good order of
society. (16 C. J. S., 539, 540.) Pursuant to the exercise of police power, the right
to private property may be limited, restricted, and impaired so as to promote the
general welfare, public order and safety. ( Id., 611.) The power of the legislature to
prohibit the possession of deadly weapon carries with it the power to provide for
the con scation or forfeiture of weapons unlawfully used or allowed by the
licensed owner to be used.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo
and Labrador, JJ., concur.

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