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325 Phil. 881


[ G.R. No. 115988, March 29, 1996 ]




In this appeal, accused-appellant Leo Lian y Verano bewails his conviction by the Regional Trial Court, Branch 31, of Agoo, La Union for the offense of illegal possession of firearm and ammunition punished by Section 1 of Presidential Decree No. 1866, as amended.  Appellant maintains that the charge against him under said law should have been dismissed by the trial court in view of the absence of animus possidendi on his part. The evidence, however, shows otherwise.

On October 11, 1990, Second Assistant Provincial Prosecutor Rogelio C. Hipol commenced Criminal Case No. A-2106 before the trial court through an information indicting appellant with illegal possession of firearm and ammunition, with the allegations--
"That on or about the 27th day of June, 1990, in the Municipality of Pugo, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully, and feloniously have in his actual possession, control, and custody, one (1) caliber .45 pistol with Serial No. 603514 and one (1) live ammunition of the same caliber, without the corresponding license to possess the same and/or permit to carry it outside his residence.

At his arraignment on January 8, 1991 with the assistance of counsel de oficio, appellant entered a negative plea.[2] In the trial that followed, the prosecution presented as its witnesses Sgt. Orlandino Lales, the apprehending police officer; Abelardo Macaraeg, a barangay tanod in Pugo; and Capt. Edgar Basbas of the Philippine National Police (PNP) Provincial Command of San Fernando, La Union. The firearm and ammunition confiscated from appellant were likewise offered as evidence in court.  On the other hand, it was only appellant who appeared in his defense.  The decision of the trial court promulgated on August 10, 1993 pronounced appellant guilty as charged and sentenced him to suffer the penalty of reclusion temporal in its maximum period to reclusion perpetua, and to pay the costs. The seized articles were ordered to be turned over to the PNP Director General for proper disposition.[3]


Appellant was apprehended in the early evening of June 27, 1990 having in his possession a caliber .45 Colt pistol, together with a live bullet, at the public market of Pugo, La Union by Sgt. Orlandino Lales, PNP Station Commander of said municipality. Prior to appellant’s apprehension, one Abelardo Macaraeg, a barangay tanod, had reported to Lales, who was then at the Pugo police station, that he saw Lian at the public market of Pugo with a handgun tucked in his waist.  Lales then proceeded to the market to look for appellant, but to no avail.  He then went home but, a few minutes thereafter, Macaraeg reappeared and informed him that Lian had returned to the market.[4]

Once more, Lales sought out appellant at the marketplace. This time, he saw appellant standing near an electric post. He forthwith approached appellant and, at that instant, he noticed something which was bulging at the latter’s waist. Lales then asked appellant in Ilocano, "What is that protruding in your waistline?" but this elicited an angry look from Lian. The latter then reached toward his waist as if to draw something therefrom and, in the process, the handgun tucked there was revealed. Lales, who was then only a meter away from appellant, was able to quickly grab the firearm which, upon inspection, had a bullet in its chamber. As appellant could not show any license to carry the firearm, Lales arrested him and brought him to the police station.[5]

Appellant admits having had in his possession the firearm, together with a bullet, at the time of his apprehension. What he underscores is the fact that he had all along intended to surrender that firearm. He narrated during his trial that in the afternoon of June 27, 1990, he went to his sister’s house at Poblacion East of Pugo where he partook of some food. After eating, he proceeded to open a brown bag which he had earlier found in the bus where he rode. Appellant says he saw a firearm inside, wrapped in a handkerchief. He took the gun and tucked it in his waist before he went on his way to surrender it. At the public market, he met some friends whom he had not seen for a while and he had a drinking spree with them. Appellant adds that he forgot all about the gun, and that he and his friends continued with their version of an alcoholic soiree that evening. It was shortly thereafter, he now recalls, that he was accosted by Sgt. Lales at the market.[6]

In his appellate brief, Lian imputes to the trial court the reversible error of having convicted him of the offense charged in spite of insufficiency of evidence. The element of intent to possess or animus possidendi, according to appellant, has not been established by the prosecution.In his words, his possession of the subject firearm was merely temporary or incidental and that it was really his intention to surrender the same from the start. Appellant furthermore argues that he did not have control over the firearm since it was immediately confiscated from him before he could surrender the same. These are puerile and specious arguments.

Presidential Decree No. 1866, as amended, which was passed to curb criminality affecting public order and safety, punishes, inter alia, both actual physical possession and constructive possession of firearms, ammunition, and explosives without authority or license therefor. Ownership thus is not an essential element. In the case of constructive possession, it refers to the subjection of the articles in question to one’s control and management.  Once the prosecution evidence indubitably points to possession without the requisite authority or license, coupled with animus possidendi or intent to possess on the part of the accused, conviction for violation of the said law must follow.[7]

Contrarily, where there is no animus possidendi or intent to possess by the accused, as when one’s possession or control of a firearm is merely temporary, incidental, or casual, no violation of Presidential Decree No. 1866, as amended, may be successfully imputed to such an individual. Animus possidendi, it has been held, is a state of mind, the presence and determination of which is largely dependent on the circumstances obtaining in each case. What the courts must take into consideration are the prior and coetaneous acts of the accused and the surrounding circumstances anent his possession of the prohibited articles.[8]

In the case of appellant, there is no dispute, for he admitted in court that he was apprehended possessing a firearm and live bullet without the necessary authority or license. Moreover, the police officer who arrested him, Sgt. Orlandino Lales, testified to the fact that at the time he nabbed Lian, he asked the former whether he had any license to carry the gun but appellant could not produce then or thereafter the necessary documents that would have attested to lawful possession of the firearm and its ammunition. This much regarding Sgt. Lales’ testimony was also conceded by appellant himself.  Also, Sgt. Lales categorically identified in court the firearm and live bullet that he had confiscated from appellant who was in actual physical possession thereof.  Hence, the first essential element of possession without authority or license has been clearly demonstrated by the prosecution.

It is on the matter of putative lack of animus possidendi that appellant is essaying his appeal for reversal of the trial court’s judgment. Appellant testified that from the time he first got hold of the firearm, he had thought of surrendering it to the authorities, knowing the danger of possessing it, and that he was on his way to the municipal town hall to surrender it when he unfortunately ran into long-lost friends at the market who invited him for some drinks.  It was on account of this that he forgot all about the firearm.  He hastens to add that he could very well have properly given the gun to Sgt. Lales were it not for the fact that the firearm was unceremoniously seized from him, thus affording him no opportunity for effecting its lawful surrender.

Appellant’s foregoing narration pitiably bears the badges or indicia of incredibility. It is elementary that for testimonial evidence to be regarded with credence, it must have been declared not only by a credible witness but that the same must in itself be believable. Conformity with human experience is the test. On appellant’s version, we need merely to refer to this rebuttal of the Solicitor General regarding the former’s arguments:
"Appellant does not deny that he indeed had the gun in his possession, hence, he has the burden of proving that his possession thereof was merely temporary or incidental. His defense, however, that he merely found the gun in his bag and intended to surrender the same to the authorities is incredible and unbelievable.

"First, if appellant really had the intention of surrendering the gun to the authorities, he should have done so right away.  The danger of carrying a gun, loaded at that, should have been foremost in his mind instead of joining his friends for a drink before surrendering the gun.

"Second, appellant testified that they started drinking at 3:30 o’clock in the afternoon up to 7:00 o’clock in the evening (p. 5, tsn, August 28, 1991.) He also testified that he forgot about the gun while drinking with his friends. (id.)

"Appellant could not have forgotten about the gun considering that he carried it in his waist all the time. Its weight and the danger of carrying it should have been sufficient reminder that he had a gun in his waist which he should surrender to the authorities if it was really not his.

"Third, appellant failed to present corroborative testimony to prove his defense that he was not able to surrender the gun to the authorities because he was invited by his friends to go drinking.  Taking into consideration the gravity of the offense with which he was charged, none of his friends with whom he supposedly went drinking, came to his rescue by testifying in his favor. This only leads one to question the truth of his allegations.

"Fourth, the testimony of Macaraeg and Lales, as Barangay Tanod and Station Commander respectively, should be given weight as public officials who are presumed to have regularly performed their official duties in accordance with Section 5(m), Rule 131 of the Rules of Court.  Furthermore, no ill motive, on the part of Macaraeg and Lales, to concoct a story against the accused has been shown."[9]
Thus, from all that has hereinbefore been said, animus possidendi cannot but be clearly inferred.  Additionally, the Court finds it hard to believe that appellant still had to hide the firearm in his waist before setting out to surrender it to the authorities when he could have taken the gun to the town hall in the same bag in which he found it, in which case it would have been safer and would have avoided detection. In fine, the indispensable elements of possession without the necessary authority or license and the corresponding attendance of animus possidendi have both been convincingly established by the prosecution to warrant appellant’s conviction of a violation of Presidential Decree No. 1866, as amended, the imposable penalties wherein have been decried as unduly heavy and disproportionate to the offenses defined therein.

This accordingly brings us to the matter of the penalties imposed by said decree, particularly for simple illegal possession under Section 1 thereof, to which we shall confine this opinion since that is the offense involved in the present case. In several decisions on this type of illegal possession,[10] the penalties have not only been variantly assessed but no consistent rule of application was followed. The objections to the penalties were cavalierly sought to be mollified by the trite rejoinder of dura lex, sed lex, thus shifting the onus of relief to the legislature. Notably, the possibility of judicial relief on this aspect was never explored, and we intend to do so now. While for cases already decided, our judgment and discussion here will appear to be post-factum dicta, the case at bar provides the opportunity for reexamination of those previous judgments and the penalties imposed therein.


The first paragraph of Section 1 of Presidential Decree No. 1866, as amended, punishes the crime of simple illegal possession of firearm[11] with reclusion temporal in its maximum period to reclusion perpetua.  In unquestioning obedience, the trial court merely adopted that very same penalty which it just quoted verbatim in its judgment in this case. In effect, therefore, it imposed an indeterminate sentence the minimum and maximum extent of which are legally indeterminable.

The maximum period of reclusion temporal consists of 17 years, 4 months and 1 day to 20 years. This is supposed to be the penalty which should serve as the basis for fixing the minimum of the indeterminate sentence, but the court below failed to specify the duration of that minimum. On the other hand, reclusion perpetua, pursuant to a recent statutory amendment, now has a duration of 40 years[12] but it is nevertheless an indivisible penalty.[13] Hence, in order that it may be used as the maximum of the indeterminate sentence, the only feasible way is to put the same at either 20 years and 1 day or 40 years, but which the court a quo likewise did not do.

In all events, it would have been pointless if it had just done so as such an indeterminate sentence would, in the first place, be unauthorized and invalid. There can be no indeterminate sentence if the penalty imposed is reclusion perpetua or life imprisonment,[14] otherwise it will result in commingling divisible and indivisible penalties in the same sentence to be served by the convict. Hence, the indeterminate sentence imposed by the trial court in this case is legally indefensible for lack of specification of the minimum and maximum range thereof, aside from the proscription against an indeterminate sentence if the penalty imposed, as the court below has done, extends to reclusion perpetua.

This does not mean, however, that there is any legal obstacle to the application and graduation of the penalty in the aforesaid Section 1 of the decree involved nor, for that matter, to the imposition of an indeterminate sentence properly taken therefrom. The penalty of reclusion temporal in its maximum period to reclusion perpetua is not singular, unusual or prohibited in the scheme of penalties in the Revised Penal Code. That is the same penalty for malversation of more than P22,000.00,[15] for attempted or frustrated robbery with homicide,[16] and, before the subsequent amendments to the Code, for destructive arson.[17]

In fact, such a penalty is contemplated in Article 61 of the Code which speaks of a principal penalty composed of one indivisible penalty and the maximum period of a divisible penalty, in which case the penalty next lower in degree consists of the three succeeding periods taken from the penalties next lower in degree, that is, prision mayor in its maximum period to reclusion temporal in its medium period. What is sought to be emphasized and clarified by this illustration, and which appears to have been overlooked in previous decisions, is that the aforesaid penalty of reclusion temporal in its maximum period to reclusion perpetua is a complex and divisible penalty consisting of three periods.

Now, the second paragraph of Article 77 of the Code, which deals with complex penalties, provides that "(w)henever the penalty prescribed does not have one of the forms specially provided for in this Code, the periods shall be distributed, applying by analogy the prescribed rules," that is, those in Articles 61 and 76.  Hence, where as in this case, the penalty provided by Section 1 of Presidential Decree No. 1866, as amended, is reclusion temporal in its maximum period to reclusion perpetua, the minimum period thereof is 17 years, 4 months and 1 day to 18 years and 8 months; the medium period is 18 years, 8 months and 1 day to 20 years; and the maximum period is reclusion perpetua.

In the case at bar, no mitigating or aggravating circumstances have been alleged or proved. In accordance with the doctrine regarding special laws explained in People vs. Simon,[18] although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees[19] or determining the proper period[20] should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years.

This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence.[21] The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period.

WHEREFORE, the appealed judgment of the trial court is hereby MODIFIED and accused-appellant Leo Lian y Verano is hereby sentenced to serve an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum.  In all other respects, said judgment is AFFIRMED.


Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur.
Torres, Jr., J., on leave.

Original Record. 15; Rollo, 3.

[2] Ibid., 26.

[3]  Ibid., 138-139; per Judge Vicente A. Hidalgo.

[4] TSN, February 20, 1991, 4-5.

[5] Ibid., id., 5-7.

[6] Ibid., August 20, 1991, 1-3.

[7] People vs. De Gracia, et al., G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716, citing People vs. Fajardo, et al., L- 18257, June 30, 1966, 17 SCRA 494 and People vs. Cruz, G.R. No. 76728, August 30, 1988, 165 SCRA 135. See also People vs. Tiozon, G.R. No. 89823, June 19, 1991, 198 SCRA 368; People vs. Lualhati, G.R. Nos. 105289-90, July 21, 1994,234 SCRA 325; People vs. Tiongco, G.R. No. 108430, September 14, 1994,236 SCRA 458.

[8] People vs. De Gracia, supra, citing People vs. Estoista, 93 Phil. 647(1953).

[9] Appellee’ s Brief, 5-7; Rollo, 70-72.

[10] See, for instance, the penalties imposed in People vs. Jolipas, G.R. Nos. 9 1592-93, November 28, 1990, 191 SCRA 770(6 years and 1 day to 10 years and 1 day); People vs. Evaristo, G.R. No. 93828, December 11, 1992,216 SCRA 431 ("to serve the penalty under Sec. 1"); People vs. Figueroa, G.R. No. 97143, October 2, 1995 ("reclusion perpetua/life imprisonment").

[11] For facility of reference, this term was adopted in People vs. Caling (G.R. No. 94784, May 8, 1992, 208 SCRA 821) to distinguish it from the aggravated mode of commission in the second paragraph wherein the unlicensed firearm is used to commit homicide or murder.

[12] Art. 27, Revised Penal Code, as amended by R.A. No. 7659.

[13] People vs. Lucas, G.R. Nos. 108172-73, January 9, 1995 (En Banc Resolution), 240 SCRA 66.

[14] Sec. 2, Act No. 4103, as amended.

[15] Art. 217(4), Revised Penal Code.

[16] Art. 297. id.

[17] Art. 320, id. This was amended by P.D. No. 1613 and PD. No. 1744. and is now punished with reclusion perpetua to death under R.A. No. 7659.

[18] G.R. No. 93028, July 29, 1994,234 SCRA 555.

[19] Art. 61, Revised Penal Code.

[20] Art. 64, id.

[21] People vs. Roque, et al., 90 Phil. 142(1951); People vs. Dimalanta, 92 Phil. 239(1952); People vs. Moises, L-32495, August 13, 1975,66 SCRA 151.

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