467 Phil. 432
AUSTRIA-MARTINEZ, J.:
That on or about the 14th day of November, 1994, at nighttime which was purposely sought, in the Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a handgun, with deliberate intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot one Nestor Otanguin with the use of said handgun with which the said accused had conveniently provided himself for the purpose, thereby hitting and inflicting upon said Nestor Otanguin gunshot wounds on his body and head, which wounds on his body and head, which directly caused his instantaneous death.Upon arraignment on March 3, 1995, appellant pleaded not guilty to the crime charged.[3]
CONTRARY TO LAW.[2]
That on or about the 14th day of November, 1994, in the Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then a private person and with deliberate intent to possess, did then and there willfully, unlawfully and feloniously carry, control, possess and have in his possession a Caliber .38 firearm in a public place and outside of his residence without first securing any authority, and/or permit as required by law.When arraigned on April 6, 1995, appellant also pleaded not guilty to the crime charged.[5] The two cases were consolidated and joint trial ensued.
CONTRARY TO LAW.[4]
In a recent case, People vs. Romeo Barros, GR No. 101107, June 27, 1995, our Supreme Court reversing the trial court which convicted the accused of two offenses of murder and illegal possession of firearm and ammunition under PD 1866 the Supreme Court held that an accused who is charged with having committed murder or homicide with the use of an unlicensed firearm should be liable only for the graver offense of aggravated illegal possession of firearm under the second paragraph of Section 1 of PD 1866 because the situation contemplated therein is from the punitive standpoint, virtually of the nature of the so-called “special complex crimes,” which should more appropriately be called composite crimes and only a single penalty is imposed for each of such composite crimes although composed of two or more offenses. [14]
Thus, the dispositive portion of the joint decision reads as follows:Hence, the case is before the Court on automatic review under Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659.
WHEREFORE, the information for murder against Johnny Malinao in Criminal Case No. 3998 is hereby dismissed and in Criminal Case No. 4039 judgment is hereby rendered finding him guilty beyond reasonable doubt of illegal possession of firearm in its aggravated form under the second paragraph of Sec. 1 of PD 1866 and for this offense he is hereby sentenced to the penalty of death, to indemnify the heirs of the deceased Nestor Otanguin, represented by his wife Teresita G. Otanguin of Catbalogan, Samar, in the amount of Two Hundred Thousand Pesos (P200,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.[15]
The main concern was 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 Presidential Decree No. 1866. The case now before the Court presents an opportunity for a reevaluation of the previous rulings on this issue.
A little legal archaeology would be in order. Presidential Decree No. 1866 took effect on June 29, 1983, imposing the stringent penalties therein by reason of the “upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives.” The pertinent portion of Section 1 thereof provides for simple possession in the first paragraph and for one of the aggravated forms in the second paragraph, as follows:
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 (of) 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.
At that time, the penalty for homicide was, as it still is, reclusion temporal in its full extent under Article 249 of the Code. The penalty for murder then was reclusion temporal in its maximum period to death under Article 248, although the death penalty was proscribed for some time by the 1987 Constitution. Thereafter, effective December 31, 1993, the penalty for murder was increased to reclusion perpetua to death when Article 248 of the Code was amended by Section 6 of Republic Act No. 7659.
Obviously, then, the single indivisible penalty of death provided by Presidential Decree No. 1866 was designed to impose, as it still imposes, a higher penalty whenever an unlicensed firearm was used as the instrument for the commission of either homicide or murder, and such penalty shall be applied regardless of any mitigating or aggravating circumstances.
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:
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.However, pending review of the trial court’s decision, R.A. No. 8294 was enacted on July 6, 1997, amending P.D. No. 1866. Its effect on crimes of illegal possession of firearm and murder or homicide, committed before the enactment of said law and on P.D. No. 1866 is explicitly defined in People vs. Tadeo,[35] to wit:
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 gravest 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.
The ratiocination no longer applies now, specifically with respect to the case 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. 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 sell 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 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, 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 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 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.[34] (Emphasis supplied)
Finally, we must reverse and set aside the conviction of the accused in Crim. Case No. 23-499 where he was charged with illegal possession of a firearm used in perpetrating the homicide and attempted homicide, i.e., violation of par. 2, Sec. 1, P.D. 1866, as a result of the decriminalization of violations of P.D. 1866 by R.A. 8294 where the unlicensed firearm is used in carrying out the commission of other crimes —Applied to the present case, appellant may not now be convicted of illegal possession of firearm in its aggravated form by considering the commission of Murder or Homicide as an aggravating circumstance because under R.A. No. 8294, the use of an unlicensed firearm in a murder or homicide case is considered simply as a special aggravating circumstance in the crime of homicide or murder and no longer treated as a separate offense in its aggravated form. It should be noted however that in either case, whether for illegal use of firearm in its aggravated form under P.D. No. 1866 as discussed in the Barros case or whether Murder or Homicide is committed with the use of an unlicensed firearm, the imposable penalty is death.
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 prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. Provided, that no other crime was committed . . . If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.
The foregoing amendments obviously blur the distinctions between murder and homicide on one hand, and qualified illegal possession of firearms used in murder or homicide on the other. We have declared that the formulation in R.A. 8294, i.e., “(I)f homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance,” signifies a legislative intent to treat as a single offense the illegal possession of firearms and the commission of murder or homicide with the use of an unlicensed firearm. Thus where an accused used an unlicensed firearm in committing homicide or murder, he may no longer be charged with what used to be the two (2) separate offenses of homicide or murder under The Revised Penal Code and qualified illegal possession of firearms used in homicide or murder under P.D. 1866; in other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance.
The use of an unlicensed firearm cannot be considered however as a special aggravating circumstance in Crim. Case No. 23-498 and Crim. Case No. 23-494. For one, it was not alleged as an aggravating circumstance in the Informations for murder and frustrated murder which is necessary under our present Revised Rules of Criminal Procedure. Moreover, even if alleged, the circumstance cannot be retroactively applied to prejudice accused-appellant; it must be stressed that RA 8294 took effect only on 6 July 1994[36] while the crimes involved herein were committed on 4 November 1993. In any event, as correctly observed by the Solicitor General, there is no evidence proving the illicit character of the .38 cal. Revolver used by appellant in killing Mayolito Cabatu and in trying to kill Florencia Cabatu, as to which requisite of the crime the record is eerily silent.[37] (Emphasis supplied)
In the absence of proof of living expenses, the net income is deemed to be 50% of the gross income.[56]
New earning capacity = 2/3 x (80-age of the victim at the time of this death xa reasonable portion of the annual net income which would have been received by the heirs for support.
Finally, the Court awards exemplary damages in the amount of P25,000.00, inasmuch as the qualifying circumstance of treachery attended in the killing of Nestor. In People vs. Catubig,[59] we emphasized that insofar as the civil aspect of the crime is concerned, exemplary damages in the amount of P25,000.00 is recoverable if there is present an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.[60]
Net earning capacity = 2/3 x (80-38) x [P55,380.00-1/2 (P27,690.00)]
= 2/3 x (42) x P 27, 690.00= 28 x P 27, 690.00 = P775,320.00
Sec. 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.[39] People vs. Lumacang, 324 SCRA 254, 269 (2000).
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: