380 Phil. 130
DE LEON, J.:
"The undersigned Provincial Fiscal accuses FRED ORBISO, LEON LUMILAN and ANTONIO GARCIA of the crime of QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN MURDER, in violation of Presidential Decree No. 1866, committed as follows:Upon being arraigned, appellants Leon Lumilan and Antonio Garcia entered the plea of "not guilty."
That on or about the 12th day of October 1987, in the municipality of Ilagan, Province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully, unlawfully and feloniously have in their possession and under their control and custody, firearms without first having obtained the necessary permit and/or license to possess the same, and that on the occasion of such possession, the herein accused with treachery did then and there wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving them chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque, and Eliong dela Cruz inflicting upon them gunshot wounds which directly caused their deaths; and further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, which injuries would ordinarily cause the death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, thus performing all the acts of execution which should have produced the crime of murder with respect to the last named victims as a consequence, but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which prevented their deaths.
CONTRARY TO LAW."[4]
"x x x The eyewitness account of Simeon Pacano which was corroborated by Benito Alonzo can not be discounted. Both testified in a straitforward and candid manner, leaving no doubt as to their veracity.Accordingly, appellants were meted out the following penalties:
"x x x
"From the evidence adduced, it is clear that the accused moved in concert, driven by a pre-conceived design that made each of them is (sic) liable in equal degree with the others for each of the three killings and for wounding five others. x x x
"As heretofore alluded to, the killing and wounding of the victims constituted the crime of Murder, Frustrated Murder and Attempted Murder, qualified by treachery. x x x
"In view of the eyewitness account of Pacano and Alonzo, the defense of alibi interposed by the (sic) both accused can not hold water.
"What crime or crimes were committed?
"1. There is no sufficient evidence to prove Illegal Possession of Firearms.
2. Relative to the death of Meliton Asuncion, Modesto Roque and Eliong dela Cruz, the crime committed was Murder.
3. Relative to the injuries sustained by Jerry Palomo and Simeon Pacano, the crime committed was Frustrated Murder while as to Romeo Pacho, Nolasco Estrada, and Mario Palomo, the crime committed is Attempted Murder.
[4] As to the charge of Illegal Possession of Firearms, no evidence has been adduced to p[rove the charge. The guns were never presented.
x x x."[9]
"WHEREOF, in view of all the foregoing, the Court finds the accused Antonio Garcia and Leon Lumilan guilty beyond reasonable doubt of the crime of 1) MURDER as defined and penalized under Article 248 of the Revised Penal Code in conjunction with Article 6 of the Revised Penal Code and in view of the absence of any mitigating or aggravating circumstances attending the commission of the crime, hereby sentences Antonio Garcia and Leon Lumilan to suffer the penalty of RECLUSION PERPETUA on three counts each for the killing of Meliton Asuncion, Modesto Roque and Eliong dela Cruz; 2) FRUSTRATED MURDER and are sentenced to a prison term of 8 years and 20 days as minimum to 14 years, 10 months, and 21 days as maximum on two counts each for the wounding of Jerry Palomo and Simeon Pacano and; 3) ATTEMPTED MURDER and are sentenced to a prison term of 5 years as minimum to 8 years and 21 days as maximum on three counts each for the wounding of Nolasco Estrada, Mario Palomo and Romeo Pacho, and to indemnify the heirs of the deceased MELITON ASUNCION damages in the amount of P30,000.00, moral damages of P10,000.00 each, actual damages of P4,150.00 and lost earning of P27,000.00 for one year as farmer; the deceased MODESTO ROQUE damages of P30,000.00, moral damages of P10,000.00 each actual damages of P8,00.00 and lost earning of P10,000.00 for one year as farmer; and the deceased ELIONG DELA CRUZ, damages of P30,000.00 and moral damages of P10,000.00 each; for the wounding of SIMEON PACANO and JERRY PALOMO, moral damages of P10,000.00 each and actual damages of P11,550.00 for JERRY PALOMO; and for an attempt on the life of NOLASCO ESTRADA and MARIO PALOMO, an actual damages of P100.00 for NOLASCO ESTRADA and actual damages of P200.00 and lost earning of P 10,500.00 for one year as farmer for MARIO PALOMO, with costs.Appellants file a motion for reconsideration which was, however, denied by the trial court in its Resolution[11] dated October 24, 1991. Hence, the instant appeal.
SO ORDERED"[10]
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN FINDING THAT THE GUILT OF APPELLANTS WAS PROVEN BEYOND REASONABLE DOUBT.The important first question We must answer is whether or not appellants may be properly convicted of murder, frustrated murder and attempted murder under an Information that charges them with qualified illegal possession of firearms used in murder in violation of Section 1 of Presidential Decree (P.D.) No. 1866, as amended[12]II
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN NOT GIVING CREDENCE TO THE EVIDENCE OF APPELLANTS.
"The unequivocal intent of the second paragraph of Section 1 of P.D. 1866 is to respect and to 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 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 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.Since Quijada, however, many changes have been introduced to Sec. 1 of P.D. No. 1866 by Republic Act (R.A.) No. 8294[26]. Said section now reads:
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. x x x
x x x
Evidently, the majority did not x x x 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."[25]
"Section 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) 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.Without doubt, the foregoing amendments blur the distinctions between murder and homicide, on one hand, and qualified illegal possession of firearms used in murder or homicide, which we have enunciated beginning in Tac-an and culminating in Quijada.
The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.
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.
If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition or attempted coup d’etat.
The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.
The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor."[27]
"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."Where an accused uses an unlicensed firearm in committing homicide or murder, he may no longer be charged with what used to be the two 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. No. 1866. As amended by R.A. No. 8294, P.D. No. 1866 now mandates that the accused will be prosecuted only for the crime of homicide or murder with the fact of illegal possession of firearms being relegated to a mere special aggravating circumstance. To obviate any doubt, R.A. No. 8294 expressly restricts the filing of an information for illegal possession of firearms to cases where no other crime is committed. Thus, illegal possession of firearms may now be said to have taken a dual personality: in its simple form, it is an offense in itself, but when any killing attends it, illegal possession of firearms is reduced to a mere aggravating circumstance that must be alleged in the information in order to be appreciated in the determination of the criminal liability of the accused.
"The undersigned Provincial Fiscal accuses FRED ORBISO, LEON LUMILAN and ANTONIO GARCIA of the crime of QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN MURDER, in violaiton of Presidential Decree No. 1866, committed as follows:While the Information specifically states that appellants are being accused of the crime of Qualified Illegal Possession of Firearms Used in Murder in violation of P.D. No. 1866, its text is so worded that it describes at least three (3) crimes:
"That on or about the 12th day of October 1987, in the municipality of Ilagan, Province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, not being authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully, unlawfully and feloniously have in their possession and under their control and custody, firearms without first having obtained the necessary permit and/or license to possess the same, and that on the occasion of such possession, the herein accused with treachery did then and there wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving them a chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque, and Eliong de la Cruz inflicting upon them gunshot wounds which directly caused their deaths; and further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which injuries would ordinarily cause the death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, thus performing all the acts of execution which should have produced the crime of murder with respect to the last named victims as a consequence, but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which prevented their deaths.
CONTRARY TO LAW."
Illegal Possession of Firearms –The Information is undeniably duplicitous. Sec. 13, Rule 110 of the Revised Rules of Court provides that a complaint or information must charge but one offense, except only in cases where the law prescribes a single punishment for various offenses. Duplicity or multiplicity of, charges is a ground for a motion to quash under Sec. 2 (e), Rule 117 of the Revised Rules of Court. The accused, however, may choose not to file a motion to quash and be convicted of as many distinct charges as are alleged in the information and proved during the trial.[29] In the same vein, failure to interpose any objection to the defect in the information constitutes waiver.[30]
"the herein accused, not being authorized or allowed by the law to keep, possess and carry firearms, did then and there wilfully, unlawfully and feloniously have in their possession and under their control and custody, firearms without first having obtained the necessary permit and/or license to possess the same, and"
Murder –
"that on the occasion of such possession, the herein accused with treachery did then and there wilfully, unlawfully and feloniously with intent to kill suddenly and unexpectedly and without giving them a chance to defend themselves, fired [sic] at and shoot Meliton Asuncion, Modesto Roque, and Eliong de la Cruz inflicting upon them gunshot wounds which directly caused their deaths; and"
Frustrated/Attempted Murder –
"further inflicting on the same occasion gunshot wounds upon Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which injuries would ordinarily cause the death of the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano, thus performing all the acts of execution which should have produced the crime of murder with respect to the last named victims as a consequence, but nevertheless, did not produce it by reason of causes independent of their will, that is, by the timely and able medical assistance rendered to the said Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon Pacano which prevented their deaths."
And Benito Alonzo corroborated him in this wise:
"Q And while you and the persons you mentioned were drinking, do you recall if there was anything unusual which happened? A There was, sir. That was the time when I heard a gun report. Q And from what direction did the gun report emanate? A Outside the fence, sir. On the road outside the fence or road leading to Salindingan. x x xQ And do you know what happened to you and your companions when as you stated you heard firings? A I know, sir, because my companions died during that incident. Q Who of your companions died? A Meliton Asuncion, Modesto Roque, and Eliong dela Cruz. Three of them, sir. Q About you, did you suffer any injuries or not? A Yes, sir. Q What part of your body was hit? A My left leg, sir. (Witness pointed to his left leg which was already amputated). Q Besides you and three others whose names you mentioned as having died, do you know if any of your other companions suffered any injury or inmjuries? A Romeo Pacho was injured, sir. Francisco Macugay and the two brothers of Policarpio Palomo, Mario Palomo and Oly Estrada. x x x Q And while you were in that position as you have stated face downwrd on the ground, do you know what later happened? A When I was in that position, sir, face downward, I heard no gun reports and that was the time that one of the gunmen went to the place where we were and that was the time that I was able to recognize him. Q What did that gunman whom you recognized do, if he did anything? A He turned us around, sir, to see if we were already dead. Q And can you tell the Court who is the person you recognized? A Fred Orbiso. Q Will you look into the persons inside the courtroom who are seated there in the benches and tell the Court if that Fred Orbiso is here in Court or not? A He is not in Court. Q And after you recognized Fred Orbiso as you stated, what else happened? A What I heard, sir, that other companion of the gunman said that they are looking for Boy Estrada. x x x Q And you said that persons entered including the person you earlier recognized. Did you come to know how many persons entered? A I remember, sir. Q How many of them? A Three (3), sir. Q Now, you recognized one of them as Fred Orbiso. About the other persons, were you able to recognize them or not? A I also recognized them, sir. Q Can you tell the Court the name or the persons whom you recognized other than Fred Orbiso? A Manong Tony Garcia. (Witness pointed to a man seated at the third row of the benches of the Court, and when asked, he gave his name as Antonio Garcia). Q About the third person? A The man seated beside Antonio Garcia, sir. Q What is his name? A That I know is Leon Lumilan. (Witness pointed to a man seated beside Antonio Garcia, and when asked, he gave his name as Leon Lumilan."[32]
This Court does not ordinarily interfere with the trial court’s judgment on the trustworthiness of witnesses. However, when there appear on record, as in this case, facts or circumstances of real weight which might have been overlooked or misapprehended,[34] We can not shirk from our duty to apply the law and render justice.
"Q What was that unusual incident that happened?A While we were drinking inside the houdse, we heard gun reports firing at the door of the house of Poling.x x x Q You stated that while you were inside the house of Poling Policarpio you heard gun reports. Are you in a psition to tell the Court from what direction did these gun reports come or emanate?A It is possible, sir.Q Where did the firing emanate or originate?A Coming from the gate of the fence of Mang Poling and the other firings took place on the fence because there were three(3) persons who fired.Q How did you come to know that there were three (3) persons who fired?A I can see the flame of the firings coming from the firearms going toward us.
Q Are you in a position to tell the Court if you were able to identify these three (3) persons?A Yes, sir.Q Please name the persons?A Leon Lumilan, Tony Garcia, and Fred Orbiso, sir.
Q You have mentioned as one of the persons you saw that evening as Leon Lumilan. Please look around the courtroom and tell the Court if that person is here now in the courtroom?A Yes, sir.Q Please stand and point to the Court the persons of Leon Lumilan and that of Antonio Garcia.A That is Leon Lumilan,sir. (The witness pointing to a man in the courtroom and when asked, he gave his name as Hermenegildo Lumilan). And that is Tony Garcia. (The witness pointing to another man in the courtroom and when asked, he gave his name as Antonio Garcia)."[33]