[ G.R. Nos.

101107-08, June 27, 1995 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROMEO BARROS Y BALTAZAR, ACCUSED-APPELLANT.
DECISION
NARVASA, C.J.:
This is an old case, going back to May 14, 1984 which, it may be recalled, was the day set by law for the election of
representatives of the former legislature, the Batasang Pambansa. It would seem, however, that the elections were not the
primary concern of Romeo Barros, the number one councilman of Poblacion, Tubao, La Union, and designated election watcher,
it was, apparently, the extermination of his enemy, Tubao Vice-Mayor Gregorio "Gene" Mapalo Jr.
As early as 9 o'clock in the morning of that day, Barros went to Mapalo's house, and very shortly thereafter gunshots rang out.
This brought Reynaldo Gonzales, a neighbor of Mapalos, to the gate at the rear of his home. He saw Romeo Barros walking
down the road behind the Mapalo residence, a gun tucked at his waist. Evidently Reynaldo had foreknowledge of Barros' sinister
intent against Mapalo, for the first question he asked was: "Did you get him?" The quick reply was, "He was able to fly. I will kill
Gene." Reynaldo says that he then attempted to dissuade Barros from carrying out his malevolent design by suggesting that he
attend
to
his
job
as
election
watcher.
Barros
ignored
him
and
walked
away. [1]
Reynaldo Gonzales saw Barros again later that morning, at about 11:30 o'clock. Reynaldo was then seated at his father's store,
located adjacent to their house. Nearby, another person, Mariden Milanes, was tending her own store fronting the main road of
the Poblacion. Both Reynaldo and Mariden noticed Barros sauntering up the road coming from the North. They saw that after
passing the Gonzales store, and while in front of the Gonzaleses' residence, Barros pointed a small gun held in his fist towards
the south of the road and fired three successive shots in the direction of the house of Vice-Mayor Gregorio Mapalo, Jr. They both
also heard Barros shouting invectives in the local dialect against Vice-Mayor Mapalo, and challenging him to come out of the
house
to
confront
him
(Barros),
after
which
Barros
reloaded
his
gun.
The gunshots turned the attention of Isabelo Gonzales (Reynaldo's father) to the place where Barros was. He saw his son,
Reynaldo, talking to Barros, attempting to deter the latter from carrying out his nefarious objective. Isabelo heard his son say to
Barros, "That's enough," and "Never mind that." Barros however continued to hurl imprecations against Vice-Mayor Mapalo and
to demand that he come out. Then, as Isabelo, Reynaldo Gonzales, and Mariden Milanes watched, Barros again raised his gun
and
fired
three
more
shots
towards
the
house
of
Vice-Mayor
Mapalo.
When the first three shots were fired at the Mapalo bungalow a few minutes earlier, Mrs. Lydia Mapalo, the wife of Vice-Mayor
Mapalo, immediately dashed out of her room to the sala. There she saw her son, Jojo, and her daughter; they said they were
probably the target of the gunshots for the jalousies of the window at the northern wall of their house had been shattered. She
peered through that window and saw Romeo Barros re-loading his gun, shouting curses, raising the gun, aiming it at their house,
and
firing
three
more
shots.
As the sound of the gunshots was dying out, Lydia became aware of her son Jojo falling face down on the floor, blood oozing
from his nose. She began shouting for help, and became quite hysterical. Her screams and the sounds of commotion in the
Mapalo residence following the second group of shots were heard by the Gonzaleses, father and son, and Mariden. They heard
people
shouting:
Jojo
was
gone,
Jojo
was
dead.
Police Chief Ricardo Fronda rushed to the Mapalo bungalow. He had heard the first three gun shots, while in his office around
thirty (30) or forty (40) meters away, and correctly surmised that they had come from the vicinity of the Mapalos' house. The first
thing Fronda saw was Jojo Mapalo lying prone on the floor of the sala, blood flowing profusely from his head. Fronda instructed
Lydia to bring her son to the hospital. Immediately, Lydia's relatives took Jojo to the Doa Gregoria Memorial Hospital.
Vice-Mayor Mapalo soon arrived at his house, and he and his wife immediately proceeded to the hospital. There they were
advised to rush their son to the Baguio General Hospital. It was too late. Jojo Mapalo was already dead. His death was
officially pronounced by the doctors at 2:15 p.m. that same day, due to "intracranial hemorrhage, massive, secondary to gunshot
wound
with
brain
tissue
maceration."[2]
Meanwhile, Chief Fronda examined the Mapalos' house and found: (a) a superficial bullet hole on the concrete south wall; (b)
two (2) or three (3) broken slats or blades of the glass jalousies of the window of the north wall; (c) a slug about a meter from the
superficial bullet hole, inside the house and below the broken jalousies; and (d) a bullet hole in the canvas roof of the garage
outside
the
house.[3]

Fronda then proceeded to the residence of Romeo Barros, being informed that the latter had just been seen there. He requested
permission to search the house, and Romeo and his brother, Rolando, nodded their heads in assent. The search was conducted
in the presence of barangay officials, and yielded a .38 caliber Smith & Wesson revolver with serial number J219345, one round
of live ammunition, and three "empty/spent" shells. The gun was found atop a rooster coop or cage at the back of the house,
inconspicuously
covered
with
a
cardboard
box.
Separate criminal actions for murder (with the qualifying circumstances of treachery and evident premeditation alleged to be
present in the commission of the crime) and illegal possession of firearm were thereafter commenced against Romeo Barros y
Baltazar in the Regional Trial Court of Agoo, La Union, [4] docketed as Criminal Cases Nos. A-1381 and A-1389, respectively. The
cases were jointly heard, having arisen from a single incident involving the same accused.
The State's evidence, which substantially tended to establish the facts and circumstances just related, consisted chiefly of the
testimony of Mariden Milades, Isabelo Gonzales, Reynaldo Gonzales, Lydia Mapalo, Police Chief Fronda. The following expert
witnesses
were
also
presented:
(1) Dr. Juan A. Redor, Jr. who testified on his findings at the post-mortem examination conducted by him, to wit: the presence of
a gun shot wound on the occipital area of Jojo Mapalo's brain measuring one (1) cm. through and through, and a slug, recovered
from
beneath
the
skin
on
the
right
occipital
region. [5]
(2) Ireneo S. Ordiano, Jr., a senior Ballistician of the National Bureau of Investigation, who deposed on the conclusions derived
by him from his ballistic tests on the firearm recovered from Barros, its single round of live ammunition, three (3) slugs and three
(3) empty shells, to wit: that the items possessed similar markings and that the bullets and shells were fired from the gun tested.
[6]

(3) Julita de Villa, a forensic chemist of the NBI, who testified that she conducted a paraffin test on the person of Barros and
found
both
his
hands
positive
for
gun
powder
nitrates. [7]
(4) Capt. Joffrey E. Palalay, Chief of Records, Legal and Research Branch, Firearms and Explosive Unit of Camp Crame, who
had issued a formal certification to the effect that Romeo Barros was not the licensee of any kind and caliber of firearm, per
verification from the records of his unit, said records containing a master list of all firearm licensees throughout the country. [8]
Proof of the damages suffered by the family as a result of Barros' slaying of Jojo Mapalo was also given by the mother, Lydia
Mapalo.
In his defense, Romeo Barros posited a different version of the tragic event. On the witness stand, he asserted that on the date
and time in question he was drinking with Reynaldo Gonzales and some other friends in front of the town plaza near the grocery
of Gonzales in the course of which a heated discussion ensued about the number of votes their respective political candidates
would garner by the end of the day. Suddenly, Reynaldo drew a gun and pointed it upwards. Knowing that it was illegal to carry
a firearm publicly on election day, Barros grappled with Gonzales for possession of the gun. While they were thus engaged, the
gun came to be pointed to the south of the road at which juncture it accidentally went off three times. Barros eventually
succeeded in taking control of the weapon, left the place and went home. He placed the gun on the rooster pen, intending to
surrender it to the police authorities; but the intended surrender was overtaken by events; before he could go to the police, the
latater
came
and
confiscated
the
firearm.
Reynaldo Gonzales was recalled to the stand, as rebuttal witness. He belied Barros' version of the incident. He denied that the
pistol was his. He reiterated his earlier testimony that it was Barros who was in possession of the gun, that he saw Barros walk
up the road, stop in front of his (Gonzales') house, raise his arm and discharge the firearm at the Mapalos' house.
On November 20, 1990, the Trial Court rendered a decision finding Barros guilty of the charges against him. [9] The dispositive
portion reads:
"WHEREFORE, in view of all the foregoing considerations, this Court finds the accused Romeo Barros y Baltazar guilty beyond
reasonable doubt for the crime of murder contrary to Art. 248 of the Revised Penal Code and of Illegal Possession of Firearm
and
Ammunition
contrary
to
Section
1
of
Presidential
Decree
No.
1866
as
amended.
"For the crime of Murder, the accused ** is hereby sentenced to suffer the penalty of Reclusion Perpetua and to indemtify the
heirs of the deceased Joseph Mapalo for actual damages in the total amount of P35,000.00; moral damages for P150,000.00;
exemplary
damages
of
P20,000.00; Attorney's
fees
of
P20,000.00
and
to
pay
the
cost.
"For the crime of Violation of Section 1 of Presidential Decree No. 1866, the penalty should be that of paragraph 2 thereof

considering that Murder was committed with the use of unlicensed firearm. Under paragraph 2 of Section 1 of P.D. No. 1866 the
penalty imposable is death. However, since the death penalty has been abolished under the New Constitution, the penalty hereto
lower in degree to that of the death penalty which is reclusion perpetua, should be imposed. The accused is therefore hereby
sentenced to suffer the penalty of Reclusion Perpetua for the crime of Violation of Section 1 of Presidential Decree No. 1866 and
to
pay
the
cost.
"The

firearm

and

ammunition

seized

from

the

accused

are

forfeited

in

favor

of

the

government.

SO ORDERED."
The accused has appealed to this Court, insisting that his version of the occurrences is the truth and it was error for the trial court
to convict him of the crimes charged. He reiterates his defense that there was no intention on his part to fire the gun in the
direction of the Mapalos' residence; it accidentally discharged while he was grappling with Reynaldo Gonzales for its
possession. He asserts that the gun is not his, that he took it away from Reynaldo because he knew it was illegal for Reynaldo
or for him to be in the possession of any firearm on election day, and that he really meant to surrender the same to the police.
The

appeal

must

fail.

The Court rejects this tale supported by naught but appellant's bare word. Against the testimony of the three witnesses who
positively pointed to him as the person who intentionally fired his gun in the direction of the Mapalo residence namely, Mariden
Milades, Isabelo Gonzales, Reynaldo Gonzales appellant's uncorroborated story that the gun had accidentally been
discharged as he was wrestling with Reynaldo for its possession, cannot prevail. Not only are the declarations in Court of said
three (3) witnesses untainted by any material self-contradiction or other serious flaw, and entirely consistent with one another, but
the Court also perceives no reason whatever for any one of them to testify falsely against appellant Barros.
There is yet another reason why appellant's version of the shooting is difficult to accept, and that is, that it was made public only
when he testified in Court in his deffense. He claims, to be sure, that he had told his story the CLAO lawyers now representing
him. He does not however explain why he did not disclose it to his first lawyer, Atty. Arthur Galace, or to any of the police officers
when he was taken into custody or at any other time afterwards. If his story of the accidental discharge of the firearm were true,
the Court sees no rational explanation for Barros' reticence in revealing it to the authorities or his lawyer. Indeed, its immediate
divulgence would have been the natural, expected reaction of an innocent individual wrongly suspected of a killing. All things
considered, his story appears to be a last-minute attempt to exculpate himself by ventilation of a contrived and seemingly
plausible
explanation
for
the
death
of
Jojo
Mapalo.
The Court however cannot see its way clear to upholding the Trial Court's conclusion that the killing was attended by the
qualifying
circumstances
of
treachery
and
evident
premediation.
It is elementary that alevosia, to be appreciated, must be proved as clearly as the alements of the crime or crimes it is alleged to
qualify. It must be proved that the accused had consciously and deliberately employed a form of attack to ensure the
consummation of his objective without risk to himself from any defense the person assaulted could have made. [10] Under the
established circumstances, it could not be said that Barros had deliberately adopted a manner of attack which would ensure the
execution of the crime without risk to himself from any measures which his intended victim might take. Barros was in the middle
of the road, in broad daylight, when he discharged two (2) volleys of three (3) shots each in the direction of the Mapalos'
residence. The first three shots -- none of which hit any person already placed Jojo Mapalo, his sister and his mother on their
guard; in fact, Jojo had remarked to his mother at the time that they were probably the targets of the pistol shots. They could
have taken steps to protect and defend themselves; actually, they saw Barros re-loading his gun and aiming it at their house
again before discharging it at them a second time. Unfortunately, Jojo Mapalo was apparently a little late in taking cover, and
was
hit
in
the
head
by
one
of
the
bullets.
Neither may this Court appreciate the qualifying circumstance of evident premeditation against appellant. As with alevosia,
evident premeditation must be established with as much certainty and clarity as the criminal act itself. It is necessary to prove (a)
the time when the offender determined to commit the crime, (b) an act manifestly indicating that the culprit had clung to his
determination and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect
upon the consequences of his act.[11] While the existence of the first and third requisites appear to have been adequately proven,
there is some ambivalence in the proof about the second, there being no substantially appreciable interval of time between the
first and second groups of shots directed at the Mapalos' house, such that the discharge of those two volleys within a minute or
two of each other might be considered as only one continuing event. In any event, even if the existence of all the elements of
evident premeditation is conceded, it still cannot be appreciated against appellant for the reason that the actual victim was
different from the intended one. It "is settled that evident premeditation cannot be appreciated in a case where, although the
accused had planned the perpetration of the killing, the victim was different from the person whom the accused had originally
intended to kill (See Aquino, the Revised Penal Code, Vol. 1, 1976 ed., p. 341, citing cases)." [12]

Now, appellant was also convicted by the Trial Court of illegal possession of firearm, in its aggravated form. [13] The evidence does
convincingly prove that appellant is not a licensee of any firearm or ammunition and that Jojo Mapalo was slain with the
unlicensed firearm in question. However, appellant may not in the premises be convicted of two separate offenses, but only of
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 indemnity for death awarded by the Trial Court should be increased from P35,000.00 to P50,000.00, conformably with
prevailing
doctrine.
WHEREFORE, the Trial Court's judgment in Criminal Case No. A1381, convicting said appellant of the offense of murder, is SET
ASIDE. The judgment of the same Trial Court in Criminal Case No. A-1389 sentencing appellant Barros to reclusion perpetua for
the crime of illegal possession of firearm in its aggravated form, and decreeing the forfeiture in favor of the government of the
firearm and ammunition seized from the accused, is AFFIRMED, and in addition, the appellant is ORDERED to pay the heirs of
the victim the amounts of damages awarded by the Trial Court except that of the death indemnity, which is increased to
P50,000.00.
SO
Regalado, Puno, and Mendoza, JJ., concur.

ORDERED.

EN BANC

[G.R. Nos. 115008-09. July 24, 1996]

PEOPLE OF THE PHILIPPINES, plaintif-appellee, vs. DANIEL

CIRCULADO, accused-appellant.

QUIJADA

DECISION
DAVIDE, JR., J.:
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 ofenses separately
charged in two informations, viz., murder under Article 248 of the Revised Penal Code and
illegal possession of firearm in its aggravated form 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] Peopl
e 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:
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, 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 P.D. 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. Greg 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:
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 & 8179, 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 bv 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 meters from
the dancing hall), decided to just watch the activities in the dance hall directly from the
plaza.
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 lroy 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.
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]
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 area, transacting cerebellum up to
midbrain.[15]
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]
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:
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 aunties scheduled to arrive

aboard 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 Agora Public
Market. They arrived at the house of Julian Bonao at Bil-isan, Panglao, 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:
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 sufer 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
R.A. No. 1866 as amended, and hereby sentences him to sufer 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 at 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
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 ARANZADO, AND IN 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 SP04 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 SP04 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
witness 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.
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 convincing 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?

11:00 o'clock.

And you were standing about two (2) meters from Diosdado Iroy until 11:30 when
the incident happened?

Yes, I was standing.

And where did you face, you were facing Diosdado Iroy or the dancing area?

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

And in your estimate, how far was your brother Diosdado Iroy while he was sitting at
the plaza to the dancing place?

More or less four (4) meters distance.

COURT:
From the dancing hall?
A

Yes, your honor.

And in your observation, was the place where Diosdado Iroy was sitting lighted or
illuminated?

Yes, sir.

What kind of light illuminated the place?

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

Was it an electric light?

It is electric light coming from a bulb.

Where is that electric bulb that illuminated the place located?

It was placed at the gate of the dancing place and the light from the house.

You said gate of the dancing place, you mean the dancing place was enclosed at
that time and there was a gate, an opening?

Yes, sir.

What material was used to enclose the dancing place?

Bamboo.

And how far was the bulb which was placed near the entrance of the dancing place
to the place where Diosdado Iroy was sitting?

Five (5) meters.

You mentioned also that there was a light coming from the house, now whose house
was that?

The house of spouses Fe and Berto, I do not know the family name.

Was the light coming from the house of spouses Fe and Berto an electric light?

Yes sir.

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?

About six (6) meters distance.[24]

xxx

xxx

xxx

What was the color of the electric bulb in the gate of the dancing place?

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 diferent 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 or
the flippant or sneering tone, the heat, the calmness, the yawn, 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.
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 alleged improper motive on the part of SP04 Nigparanon simply because he is a
neighbor of the Iroy; remains purely speculative, as no evidence was ofered to establish
that such a relationship afected SP04 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 SP04 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 alibicannot 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 scene of the crime at the time of
its commission.
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 ofenders; it even considers such act as a
mitigating circumstance.[33] Moreover, non-flight is not conclusive proof of innocence.[34]
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:
SEC.
1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunitio
n or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition
-- The penalty ofreclusion 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
[36]
[37]
in People vs. Tiozon,
People vs. Caling,
People vs. Jumamoy,[38] People vs. Deunida,[39] Pe
ople 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 ofenses 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 ofenses 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 ofenses, 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:
It is elementary that the constitutional right against double jeopardy protects one against a
second or later prosecution for the same ofense, and that when the subsequent information
charges another and diferent ofense, 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 ofense charged in Criminal Case No. 4007 is that of unlawful possession of an
unlicensed firearm penalized under a special statute, while the ofense 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) ofenses in themselves are quite diferent 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.
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 ofense 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 ofense; otherwise, an anomalous absurdity

results whereby a more serious crime defined and penalized in the Revised Penal Code is
absorbed by a statutory ofense, which is just a malum prohibitum. The rationale for the
qualification, as implied from the exordium of the decree, is to efectively deter violations of
the laws on firearms and to stop the "upsurge of crimes vitally afecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, x x x." 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,
homicide or murder, is punished by the Revised Penal Code.
In People vs. Doriguez, [24 SCRA 163, 171], We held:
It is a cardinal rule that the protection against double jeopardy may be invoked only for the
same ofense or identical ofenses. A simple act may ofend 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 diferent 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 ofenses arise from the
same fact, if each crime involves some important act which is not an essential element of
the other.
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 ofense. A simple act may be an
ofense against two diferent 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 ofense[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 on 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:
"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 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 x x x (or)
ammunition x x x." 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 ofense in its simplest form is, basically, the fact of possession of a fire
arm without license. The crime may be denominated simple illegal possession, to distinguis
h it from its aggravated form. It isAggravated if the unlicensed firearm is used in the commi
ssion 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 absorb
ed in the former. There are two distinct crimes that are here spoken of. One is unlawful pos
session of a firearm, which may be either simple or aggravated, defined and punished respe
ctively bythe 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 thecrime under P.D. 1866, and the liability for illegal po
ssession is made heavier by the firearm's use in a killing. The killing, whether homicide or m
urder, is obviously distinct from the act of possession, and is separatelypunished and define
d 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 ofenses 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 reclusionperpetua. 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 murderqualifies the ofense because b
oth are circumstances which increase the penalty. It does not, however, follow that the homi
cide or murder is absorbed in the ofense. If these were to be so, an anomalous absurdity w
ouldresult whereby a more serious crime defined and penalized under the Revised Penal Cod
e will be absorbed by a statutory ofense, one which is merely malum prohibitum. Hence, th
e killing of a person with the use of anunlicensed firearm may give rise to separate prosecuti
ons for (a) the violation of Section 1 of P.D. No. 1866 and (b) the violation of either Article 24
8 (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 ofense 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. Tacan, People vs. Tiozon, and People vs. Caling.
In Somooc, we once more ruled:
The ofense 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 ofense penalized in P.D.
No. 1866 is the fact of possession of a firearm without a license or authority for such

possession. This ofense is aggravated and the imposable penalty upgraded if the
unlicensed firearm is shown to have been used in the commission of homicide or murder,
ofenses 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 provisions of the Revised Penal
Code.

The foregoing doctrine sufered 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 ofense 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 ofenses [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 ofense 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 ofense imputable to the accused, the
Court
has
correctly
held
that
to
be
the
simple
possession
punished
with reclusion temporal in its maximum period to reclusionperpetua 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 ofense of aggravated illegal possession. In other words, the homicide or murder
constitutes the essential element for integrating into existence the capital ofense of the
aggravated form of illegal possession of a firearm. Legally, therefore, it would be illogical
and unjustifiable to use the very same ofenses of homicide or murder as integral elements
of and to create the said capital ofense, and then treat the former all over again as
independent ofenses 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 ofense 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 ofenses.
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 ofense, 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 ofense 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 ofense, 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 ofense 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 ofense 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 ofense,
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 efectively deter violators of said laws.
This would be akin to the legislative intendment underlying the provisions of the AntiCarnapping 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
ofense 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 ofense or ofenses 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 ofense 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 ofense was drawn up and these
informations were individually assigned to diferent courts or branches of the same court.
Indeed, the practice of charging the ofense 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 afect 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
ofense committed by the accused, and for which sole ofense 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 ofenses 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 sufer 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 instances 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
enunciate an unfortunate doctrine or a "speciously camouflaged theory" which
"constitutes an afront on doctrinal concepts of penal law and assails even the ordinary
notions of common sense."
If Tac-an did in fact enunciate 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 prosecutions 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
sufer 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 clearthat appellant is charged with the qualified ofense of illegal poss
ession of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in la
w, is distinct from the crime of rebellion punished under Article134 and 135 of the Revised P
enal Code. There are two separate statutes penalizing diferent ofenses with discrete penal
ties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson,
orother ofenses, such as illegal possession of firearms, that might conceivably be committe
d in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a speci

fic ofense, the crime of illegalpossession 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 De
cree No. 1866, the Court has explained that said provision of the law will not be invalidated
by the mere fact that the same act ispenalized under two diferent statutes with diferent pe
nalties, even if considered highly advantageous to the prosecution and onerous to the accus
ed. It follows that, subject to the presence of requisite elements in eachcase, unlawful posse
ssion of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecuti
ons for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Article
s 134 and 135of the Revised Penal Code on rebellion. Double jeopardy in this case cannot b
e invoked because the first is an ofense punished by a special law while the second is a felo
ny punished by the Revised Penal Code withvariant 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 afront 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 Tac-an; 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 "afront 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 Tac-an 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 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 ofense 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
afecting public order and safety due to the proliferation of illegally possessed and
manufactured firearms, ammunition, and explosives. Ifintent 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 prohibilum 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 ofense which is punished
as such. The majority not only created two ofenses by dividing a single ofense into two
but, worse, it resorted to the unprecedented and invalid act of treating the original ofense
as a single integrated crime and then creating another ofense 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 ofenses 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
ofense as specifically described by the law and impose reclusion perpetua therefor (since
the death penalty for that ofense 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 ofense" 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 diference, 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 ofender, 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 mensrea, is the
primary purpose, and to carry that out efectively the ofender 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 Stifer Penalties Therefor), the answer is resoundingly in the
negative. In those cases, the lawmaker clearly intended a single integrated ofense or a
special
complex
ofense
because
the
death
therein
occurs
as a result or on the occasion of the commission of the ofenses therein penalized or was not
the primary purpose of the ofender, 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 reclusionperpetua shall
be
imposed. If
rape, murder or homicide is committed as a result or on the occasion of piracy, or when the
ofenders 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 occasionthereof, 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 ofense is committed
without violence against or intimidation of persons or force upon things. If the ofense 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 rec
lusionperpetua to death shall be imposed. (emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:
SECTION. 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; x x x (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 ofense 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 ofense 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 ofense. 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 ofense 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 ofender 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 ofense 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 ofenses by dividing a single ofense into two. Neither did it resort to the
"unprecedented and invalid act of treating the original ofense as a single integrated crime
and then creating another ofense 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 ofenses 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 ofense 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 ofenses for diferent 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 ofends the constitutional bar against double
jeopardy under the "same-evidence" 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 diferent 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 ofense 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 ofense was an indispensable component for
the other composite ofense 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 "same-evidence" 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 ofense. 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 ofense. The second refers to
the same act. This was explicitly distinguished in Yap vs. Lutero,[54] from where People vs.
Relova[55] quotes the following:
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 ofense." (italics 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
ofense 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 diferent ofenses, or the ofense 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 ofenses 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 ofense. So long as jeopardy has been attached under one of the informations
charging said ofense, the defense may be availed of in the other case involving the same
ofense, even if there has been neither conviction nor acquittal in either case.
Elsewise stated, where the ofenses charged are penalized either by diferent sections of the
same
statute
or
by
diferent
statutes,
the
important
inquiry
relates
to
the identity of ofenses charged. The constitutional protection against double jeopardy is
available only where an identity is shown to exist between the earlier and the subsequent
ofenses charged.[56] The question of identity or lack of identity of ofenses is addressed by
examining the essential elements of each of the two ofenses charged, as such elements are
set out in the respective legislative definitions of the ofenses involved. [57]
It may be noted that to determine the same ofense 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 ofense 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 ofenses 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 ofense 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 ofense. 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 diferent from the elements of
homicide or murder, let alone the fact that these crimes are defined and penalized under
diferent 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
perpetual 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.
Narvasa, C.J., Romero, Puno, Vitug, Kapunan, Mendoza, JJ., joined J. Regalado in his
concurring and dissenting opinion.
Regalado, J., see concurring and dissenting opinion.
Hermosisima, J., see concurring opinion.
[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 of 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 637 [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,

MARTIN, Statutory Construction [1979], 2.

229,

214-215. See

[46]

Articles 248 and 249, respectively, Revised Penal Code.

[47]

Article 3, Id.

RUPERTO

G.

[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 CriminalLaw [1974], 24).
[49]

Veroy vs. Layague, 210 SCRA

People vs. De Gracia, supra, note 44.

97

[1992];

People vs.

Jumamoy, supra, note 5;

[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.

[ G.R. No. 111343, August 22, 1996 ]

ERNESTINO P. DUNLAO, SR., PETITIONER, VS. THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE
PHILIPPINES, REPRESENTED BY THE OFFICE OF THE SOLICITOR GENERAL, AND LOURDES DU, RESPONDENTS.
DECISION

ROMERO, J.:
Petitioner Ernestino P. Dunlao, Sr. is accused of violating Presidential Decree No. 1612, otherwise known as the Anti-Fencing
Law, in an information which reads:
"I N F O R M A T I O N
The undersigned accuses the above-named accused of Violation of Anti-Fencing Law of 1979 (Presidential Decree 1612),
committed
as
follows:
That on or about a week prior to October 25, 1986, in the City of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, with intent to gain for himself, wilfully, unlawfully and feloniously purchased and received
dismantled farrowing crates made of GI pipes, valued at P20,000.00, knowing the same to be the subject of thievery, thereby
committing an act of fencing, in violation of the Anti-Fencing Law of 1979, to the damage and prejudice of the owner thereof
Lourdes
Farms,
Inc.,
represented
by
Lourdes
Du.
Contrary
Davao

to
City,

Philippines,

law.
January

19,

1987.

(SGD.)
ANTONINA
B.
ESCOVILLA
4th Asst. City Fiscal"[1]
Petitioner is a duly licensed retailer and wholesaler of scrap iron in Davao City using the business name "Dunlao Enterprise."
On October 25, 1986 at about 2:30 p.m. Fortunato Mariquit and Carlito Catog, both employees of Lourdes Farms, were
instructed by its proprietor, Mrs. Lourdes Du, to go to petitioners premises together with police officers Pfc. Epifanio Sesaldo and
Pat. Alfredo Ancajas to verify information received that some farrowing crates and G.I. pipes stolen from Lourdes Farms were to
be
found
thereat.
Upon arrival at petitioners compound, the group saw the farrowing crates and pipes inside the compound. They also found
assorted lengths of G.I. pipes inside a cabinet in petitioners shop and another pile outside the shop but within the compound.
After he was informed by the police operatives that said pipes were owned by Lourdes Farms and had been stolen from it,
petitioner voluntarily surrendered the items. These were then taken to the police station.
On February 16, 1987, Criminal Case No. 14655 was filed in the Regional Trial Court of Davao city, Branch 9, accusing petitioner
of
violation
of
the
Anti-Fencing
Law.
On March 13, 1987, petitioner was arraigned and pleaded NOT GUILTY. Trial ensued and on May 30, 1989, the trial court
rendered judgment, the dispositive portion of which reads:
"PREMISES CONSIDERED and the evidence being sufficient, this Court finds ERNESTINO P. DUNLAO, SR., GUILTY, beyond
reasonable doubt of Violation of Anti-Fencing Law of 1979 and hereby sentences him to imprisonment of Six (6) Years, Eight (8)
Months, One (1) Day as minimum to Seven (7) Years and Four (4) Months as maximum of Prision Mayor with all the accessory
penalties
provided
by
law.
SO ORDERED."[2]
Petitioner then appealed his conviction to the Court of Appeals. On May 10, 1993, the appellate court promulgated its decision [3]
affirming the judgment of the trial court.
Hence,
this
petition.
Petitioner

states

that

the

appellate

court

erred:

"(A) IN NOT FINDING THAT AT LEAST TWO (2) ELEMENTS OF THE CRIME CHARGED, NAMELY, THE ALLEGED
PURCHASE BY THE ACCUSED-APPELLANT OF THE GI-PIPES AND HIS ALLEGED KNOWLEDGE OF THEIR BEING
STOLEN
ITEMS,
WERE
NOT
PROVEN
BY
THE
PROSECUTIONS
EVIDENCE;
(B) IN NOT FINDING THAT ACCUSED-APPELLANT, A DULY LICENSED SCRAP METAL BUSINESSMAN FOR MORE THAN
FIFTEEN (15) YEARS, HAD ACTED IN GOOD FAITH AND WITHOUT ANY CRIMINAL INTENT IN POSSESSING AS
TEMPORARY CUSTODIAN OF SAID GI-PIPES BY BRINGING THEM INSIDE HIS BUSINESS ESTABLISHMENT, WHOSE
INSIDE PREMISES WERE OPEN TO PUBLIC VIEW, BEFORE DARK SET IN ON THE DAY THEY WERE BROUGHT TO HIM
BY WELL-DRESSED JEEP-RIDING MEN WHO MERELY OFFERED SAID ITEMS TO HIM FOR SALE BUT WHO FAILED TO
RETURN TO HIS ESTABLISHMENT UNTIL POLICE OPERATIVES WENT TO HIS BUSINESS PREMISES A FEW DAYS
THEREAFTER."[4]
In brief, petitioner argues that the prosecution failed to establish the fact that, in receiving and possessing the subject items, he
was motivated by gain or that he purchased the said articles. Further, he questions the alleged value of the stolen properties
stating that they are worth a lot less than what the trial court declared them to be.
Under Presidential Decree 1612, [5] "fencing is the act of any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item,

object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of
robbery
or
theft."
There is no question that the farrowing crates and assorted lengths of G.I. pipes were found in the premises of petitioner. The
positive identification by Fortunato Mariquit, an employee of Lourdes Farms, Inc., that these items were previously owned by it
gave rise to a presumption of fencing under the law:
"Sec. 5. Presumption of Fencing. -- Mere possession of any good, article, item, object, or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of fencing."
In the instant case, did petitioner Ernestino Dunlao succeed in rebutting this presumption?
We

hold

in

the

negative.

First of all, contrary to petitioners contention, intent to gain need not be proved in crimes punishable by a special law such as
P.D.
1612.
The law has long divided crimes into acts wrong in themselves called "acts mala in se," and acts which would not be wrong but
for the fact that positive law forbids them, called "acts mala prohibita." [6] This distinction is important with reference to the intent
with which a wrongful act is done. The rule on the subject is that in acts mala in se, the intent governs, but in acts mala prohibita,
the only inquiry is, has the law been violated? [7] When an act is illegal, the intent of the offender is immaterial. [8]
In the case of Lim v. Court of Appeals[9] involving violation of the Anti-Fencing Law, we said:
"On the aspect of animus furandi, petitioner is of the belief that this element was not clearly established by the Peoples evidence
and he, therefore, draws the conclusion that respondent court seriously erred in presuming the existence of intent to gain. Again,
this supposition ignores the fact that intent to gain is a mental state, the existence of which is demonstrated by the overt acts of a
person (Soriano vs. People, 88 Phil. 368 [1951]; 1 Reyes, Revised Penal Code, Eleventh Rev. Ed., 1977, p. 45; 1 Aquino,
Revised Penal Code, 1988 Ed., p. 197). And what was the external demeanor which petitioner showed from which the trial court
and respondent court inferred animus furandi? These circumstances were vividly spelled in the body of the judgment which
petitioner chose to blandly impugn and over which he remains indifferent even at this crucial stage. Withal, the sinister mental
state is presumed from the commission of an unlawful act in bringing out the tires from his bodega which were loaded on his
pick-up (People vs. Sia Teb Ban, 54 Phil. 52 [1929]; 1 Reyes, supra at P. 46; Section 3(b), Rule 131, Revised Rules on
Evidence). At any rate, dolo is not required in crimes punished by a special stature like the Anti-Fencing Law of 1979 (U.S. vs.
Go Chico, 14 Phil. 128 [1909]; 1 Reyes, supra at p. 58) because it is the act alone, irrespective of the motives which constitutes
the offense (U.S. vs. Siy Cong Bieng, et al., 30 Phil. 577 [1915]; 1 Reyes, supra, at p. 59; 1 Aquino, supra, at p. 52)."
Secondly, the law does not require proof of purchase of the stolen articles by petitioner, as mere possession thereof is enough to
give
rise
to
a
presumption
of
fencing. [10]
It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence but he failed to do so. All
petitioner could offer, by way of rebuttal, was a mere denial and his incredible testimony that a person aboard a jeep unloaded
the pipes in front of his establishment and left them there.
There was a jeep loaded with G.I. pipes where he approached me with the G.I. pipes but I refused to buy and
"A.
instead requested me that they will unload those G.I. pipes in front of my establishment.
Q.
Now, did you have a talk with that person whom you said arrived aboard the jeep which was carrying G.I. pipes?
We had a talk requesting me that they will just unload the G.I. pipe but we have never talked that I am going to buy
A.
those G.I. pipes.
Q.
Can you recall what did the man tell you as he asked you to allow him to unload those G.I. pipes?
He told me that he would just leave them temporarily and he will come back but it took a long time, he failed to come
A.
back.
What time, more less, of the day was that when the unloading of the G.I. pipes was made, was it in the morning or
Q.
afternoon?
A.
I can remember it was in the afternoon but I am not certain as to the time.
Q.
Can you estimate the time in the afternoon?
A.
May be around 2 or 3 oclock but I am not certain, it was in the afternoon.
You said that man who unloaded the G.I. pipes did not return anymore and so, what did you do with the G.I. pipes
Q.
that were unloaded in front of your establishment?
That was already late in the afternoon, around 5:30 up to 6:00 oclock, we are about to close, so what I did I have it
A.
brought inside my compound for safekeeping."[11]
In

the

Lim[12]

case,

we

held

that:

"x x x the presumption of fencing under Section 5 of Presidential Decree 1612 x x x must be upheld in the light of petitioners
shallow demurrer premised on a denial and alibi, since a disputable presumption on this score is sufficient until overcome by
contrary evidence."
The Court notes that the stolen articles were found displayed[13] on petitioners shelves inside his compound.If petitioner were
merely keeping the farrowing crates and G.I. pipes for the men aboard the jeep, why did he display them? When a storeowner
displays articles, it is assumed that he is doing so with the intention of selling them.

Furthermore, the Court finds it strange that petitioner did not even bother to ascertain the identity of the person or persons who
deposited the articles with him. We quote with approval the trial courts observation that:
The narration of how the items were simply dumped at the compound of the accused; the fragile and vague statement that the
unidentified party unloading the items would bring more items at some indefinite date; x x x that accused caused the pipes to be
brought inside the compound of his own volition without any such arrangement with the strangers; that the latter did not return
thereafter; that some of the items delivered by the strangers were distributed in and around the compound and in cabinets inside
the building already cut in short pieces; that accused cannot produce any proof of ownership by the persons who simply
unloaded the items then left without coming back - these are matters which common sense and sound business practices would
normally clarify in the face of the express provisions of the Anti-fencing Law.x x x And when the accused took it upon himself to
protect and transfer inside his compound items unloaded by total strangers without any agreement as to how the items would be
sold or disposed of nor how soon agreement would be compensated, a rather dubious aura of illegitimacy envelopes and taints
the entire transaction."
Lastly, petitioner questions the value of the stolen articles as found by the trial court and as affirmed by the Court of Appeals. He
contends that the pipes were worth only P200.00, not the P20,000.00 alleged in the Information.
Prosecution witness Carlito Catog testified on the value of the stolen pipes stating that, as he worked as purchaser for Lourdes
Farms, he was knowledgeable about their true worth. He also explained the basis of the estimate of the said articles: [14]
Now, those G.I. pipes which you said you saw in the premises of Mr. Dumlao and which you earlier mentioned as
Q.
having been identified by you as coming from Lourdes Farms, can you tell the Honorable Court, more or less, how
much did you buy those pipes?
A.
I arrive at the amount of Fifty Nine Thousand (P59,000.00) as my estimate.
Q.
Fifty Nine?
A.
Fifty Nine Thousand Pesos (P59,000.00).
Q.
And can you tell the Honorable Court what is your basis of making this estimate?
The G.I. pipes were made into piggery crates, we use the 3 / 4 inch by 20 feet G.I. pipes in fabricating. We use 6
lengths of those pipes at the cost of P80.00 per crate. So, we arrive at the amount of P480.00 of the materials, the
A.
G.I. pipes used in fabricating crates, plus the cost of fabrication which we paid to the one making at P700.00 per
crate, so we arrive at P1,180.00 per crate and the number of crates per estimate, which we recovered from the
premises of Mr. Dumlao is about more or less 50 crates. So, we arrive at Fifty Nine Thousand Pesos (P59,000.00).
The trial court, however, based its decision on the amount of P20,000.00 as alleged in the information, instead of the appraisal of
P59,000.00 made by Mr. Catog. The Court believes that P20,000.00 is a more realistic estimate of the value of the stolen pipes.
Petitioners claim that the pipes were worth only P200.00 is not credible considering that it took a truck to haul off the entire load
from petitioners premises, as testified to by Fortunato Mariquit. [15]
Q.
How did you bring the G.I. pipes from the place of Mr. Dumlao to the police station?
A.
We loaded them in a dump truck owned by Federico Jaca.
Now, what was the quantity of the pipes that you were able to bring from the place of Mr. Dumlao to the police
Q.
station?
A.
Almost a truckload.
Q.
What did you say, it was a dump truck?
A.
Almost a load of a dump truck.
Q.
After reaching the police station, what happened?
A.
We unloaded it in the police station and we went home.
In line with our ruling in the Lim case,[16] petitioner should pay Lourdes Farms, Inc. represented by its owner Mrs. Lourdes Du,
the sum of P20,000.00 minus the value of the pipes and farrowing crates recovered and in the custody of the police, without
subsidiary
imprisonment
in
case
of
insolvency.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.Petitioner is ordered to pay Lourdes Farms, Inc.,
represented by Mrs. Lourdes Du, the sum of P20,000.00 minus the value of the recovered pipes and farrowing crates, without
subsidiary
imprisonment
in
case
of
insolvency.
SO
Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

ORDERED.

[ G.R. No. 108738, June 17, 1994 ]

ROBERTO CRUZ, PETITIONER, VS. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION
KAPUNAN, J.:
The sole issue to be resolved in the instant petition is whether or not petitioner is liable for violation of Batas Pambansa Bilang 22
for issuing a check knowing he does not have credit with drawee bank and thereafter claiming that the said check was not
intended for circulation and negotiation, the same having been issued only to serve as mere evidence or memorandum of
indebtedness.
The relevant antecedents are as follows, viz:
Complaining witness Andrea Mayor is a businesswoman engaged, among others, in granting interest-bearing loans and in
rediscounting checks.[1] Sometime in 1987, she was introduced to herein petitioner, Roberto Cruz who at that time was engaged
in the business of selling ready-to-wear clothes at the Pasay Commercial Center. [2] From then on, petitioner has been borrowing
money from Mayor.[3] On March 15, 1989, petitioner borrowed from Andrea Mayor one hundred seventy six thousand pesos
(P176,000.00).[4] On April 6, 1989, Mayor delivered the said amount to petitioner himself in the latter's stall at the Pasay
Commercial Center. Cruz, in turn, issued Premiere Bank Check No. 057848 postdated April 20, 1989 for same amount. [5] When
the check matured, complaining witness presented it to the drawee bank for payment but the same was dishonored and returned
for reason "account closed." When notified of the dishonor, petitioner promised to pay his obligation in cash. No payment was
made, hence, an information for violation of Batas Pambansa Bilang 22 was filed against the petitioner. [6]
Upon arraignment, petitioner entered a plea of not guilty. [7]
At the pre-trial, petitioner admitted the existence of the check. [8]
During trial, the prosecution presented two (2) witnesses, Andrea Mayor, herein complainant, and Marcelo Ladao, a
representative of Premiere Development Bank.
Andrea Mayor testified that she is a businesswoman engaged in the business, among others, of rediscounting checks and
lending money at an interest of 3% to 5% monthly; that she came to know the accused Roberto Cruz through the latter's sisters
sometime in 1987; that the accused is engaged in the RTW business at the Pasay Commercial Center; that she rediscounted
some of the checks of the accused in previous transactions as shown by Exhibits "C," "C-1" to "C-3," in the amounts of
P20,000.00, P5,000.00, P9,000.00, and P5,000.00, respectively, which were personal checks issued by the accused for the
sums he borrowed and which checks bounced when presented for payment but were paid in cash by the accused when the latter
was notified of the dishonor.[9]
Complaining witness Andrea Mayor further testified that on March 15, 1989, accused told her that he needed P176,000.00 and
asked to be lent the said amount; that complainant gave the accused the said amount at the latter's store at the Pasay City
Commercial Center; that accused, in turn, issued a check [10] for the same amount; that the check was signed in her presence and
she was told that accused might be able to pay before the due date on April 20, 1989; that the check was dishonored upon
presentment by the drawee bank; that accused was notified of the dishonor and he promised to raise the amount on May 15,
1989; that accused failed to make good his commitment, hence, she consulted a lawyer and caused the preparation of a
complaint.[11]
Marcelo Ladao, a representative of Premiere Development Bank, testified that accused opened Current Account No. 010100250-5 on May 15, 1987 and, accordingly, affixed three (3) signatures on the signature card provided by the bank for account
applicants; that the said account was closed on October 2, 1989 and that accused was duly advised of the said closure by the
Branch Manager of the Pasay City Branch. Ladao, likewise, identified the stamp marked on the face of the check in question,
which stamp indicated that the account of the depositor is already closed. [12] On cross-examination, the same witness explained
that the subject account was closed at the discretion of the branch manager and that closure is normally a result of a series of
checks issued without sufficient funds.[13]
The accused testified in his defense and proffered the defense of denial. He denied (a) having issued the subject check; (b) the
signature "R. Cruz" appearing thereon as his; and (c) knowing complainant Andrea Mayor and existence of previous transactions
with her.[14] He declared that he saw the check in question for the first time only on January 16, 1991 when it was showed to him
by the fiscal and that he never met Andrea Mayor before. [15] He admitted, however, opening Current Account No. 0101-00250-37
with Premiere Development Bank.[16]
The trial court rejected accused's defense and rendered judgment as follows, to wit:

"IN VIEW OF THE FOREGOING, accused is hereby found guilty beyond reasonable doubt of the offense charged in the
information, and conformably with the penal provision of Batas Pambansa Blg. 22, accused is hereby sentenced to suffer the
straight penalty of one (1) year imprisonment and to indemnify the offended party in the amount of P176,000.00, Philippine
Currency. With costs."[17]
Aggrieved by the ruling, petitioner appealed the case to the Court of Appeals.
On January 26, 1993, the Court of Appeals rendered judgment affirming the trial court's decision. [18]
Now petitioner comes to this Court by way of a petition for review on certiorari seeking the reversal of the respondent court's
decision. Petitioner cites the following for allowance of his petition, viz:
A. Respondent Court Committed Reversible Error and Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction
in Affirming The Finding of The Trial Court On The Basis Of Surmises, Conjectures and Unfounded Conclusions.
xxx
B. Respondent Court Gravely Erred In Holding The Petitioner Liable Under BP No. 22, Despite Knowledge of the Complaining
Witness That The Account Had Long been Closed.
xxx
C. Respondent Court Gravely Erred In Holding That The Complete Turnabout of the Petitioner, As Claimed By The Solicitor
General, Rendered Petitioner's Appeal Devoid of Merit.
x x x[19]
Petitioner, in this case, cannot seem to make up his mind. First, he denies having issued the questioned check, then, he claims
that when he issued the same, it was more in the nature of a memorandum of indebtedness and, as such, does not fall within the
purview of Batas Pambansa Blg. 22.
However, the issuance of the check subject of the present case is no longer at issue since the petitioner himself, on appeal to the
respondent court, admitted having issued the check after he received the amount of P176,000.00 from the complaining witness.
Therefore, the only issue in the case at bench is whether or not petitioner can be convicted for violation of B.P. 22.
We answer in the affirmative.
A check issued as an evidence of debt, though not intended to be presented for payment has the same effect of an ordinary
check,[20] hence, falls within the ambit of B.P. 22 which merely provides that "any person who makes or draws and issues any
check to apply for an account or for value, knowing at the time of issue that he does, not have sufficient funds in or credit with the
drawee bank x x x which check is subsequently dishonored by the drawee bank for insufficiency of funds on credit x x x shall be
punished by imprisonment x x x"[21]
When a check is presented for payment, the drawee bank will generally accept the same regardless of whether it was issued in
payment of an obligation or merely to guarantee the said obligation. What the law punishes is the issuance of a bouncing
check[22] not the purpose for which it was issued nor the term and conditions relating to its issuance. The mere act of issuing a
worthless check is malum prohibitum.[23] This point has been made clear by this Court, thus:
'It is now settled that Batas Pambansa Bilang 22 applies even in cases where dishonored checks are issued merely in the form
of a deposit or a guarantee. The enactment in question does not make any distinction as to whether the checks within its
contemplation are issued in payment of an obligation or merely to guarantee the said obligation. In accordance with the pertinent
rule of statutory construction, inasmuch as the law has not made any distinction in this regard, no such distinction can be made
by means of interpretation or application. Furthermore, the history of the enactment of subject statute evinces the definite
legislative intent to make the prohibition all-embracing, without making any exception from the operation thereof in favor of a
guarantee. This intent may be gathered from the statement of the sponsor of the bill (Cabinet Bill No. 9) which was enacted later
into Batas Pambansa Bilang 22, when it was introduced before the Batasan Pambansa, that the bill was introduced to
discourage the issuance of bouncing checks, to prevent checks from becoming 'useless scraps of paper' and to restore
respectability to checks, all without distinction as to the purpose of the issuance of the checks. The legislative intent as above
said is made all the more clear when it is considered that while the original text of Cabinet Bill No. 9, supra, had contained a
proviso excluding from the coverage of the law a check issued as a mere guarantee, the final version of the bill as approved and
enacted by the Committee on the Revision of Laws in the Batasan deleted the abovementioned qualifying proviso deliberately for
the purpose of making the enforcement of the act more effective (Batasan Record, First Regular Session, December 4, 1978,
Volume II, pp. 1035-1036).
"Consequently, what are important are the facts that the accused had deliberately issued the checks in question to cover
accounts and that the checks were dishonored upon presentment regardless of whether or not the accused merely issued the
checks as a guarantee.' (pp. 4-5, Dec. IAC) [pp. 37-38, Rollo]." [24]

The importance of arresting the proliferation of worthless checks need not be underscored. The mischief created by unfunded
checks in circulation is injurious not only to the payee or holder, but to the public as well. This harmful practice "can very well
pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public
interest."[25]
Petitioner likewise opines that the payee, herein complaining witness, was aware of the fact that his account with Premiere
Development Bank was closed. He claims that the payee's knowledge verily supports his contention that he did not intend to put
the said check in circulation much less ensure its payment upon presentment.
Knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is immaterial as deceit is not an
essential element of an offense penalized by B.P. 22. As already aforestated, the gravamen of the offense is the issuance of a
bad check,[26] hence, malice and intent in the issuance thereof are inconsequential. Moreover, the fact that the check issued is
restricted is likewise of no moment. Cross checks or restricted checks are negotiable instruments within the coverage of B.P. 22.
Petitioner, on appeal, changed his theory from complete denial that he issued the questioned check to an admission of its
issuance without intent to circulate or negotiate it. Such a change of theory however, cannot be allowed. When a party adopts a
certain theory, and the case is tried and decided upon that theory in the court below, he will not be permitted to change his theory
on appeal for to permit him to do so would not only be unfair to the other party but it would also be offensive to the basic rules of
fair play, justice and due process.[27]
Finally, the issue raised primarily involves a question of fact. Our jurisdiction in cases brought to us from the Court of Appeals is
limited to reviewing the errors of law imputed to the latter, its findings of fact being conclusive. Therefore, barring any showing
that the findings complained of are totally devoid of support in the record, such findings must stand. [28] After a careful
consideration of the records, we sustain the conclusion of the respondent court.
WHEREFORE, premises considered, the instant petition is DISMISSED and the questioned decision of the respondent court is
hereby AFFIRMED en toto. Costs against the petitioner.
SO
Cruz, (Chairman), Davide, Jr., Bellosillo, and Quiason, JJ., concur.

ORDERED.

People vs. Sunico, et al (C.A., 50 o.g. 5880)

Facts:
The accused were election inspectors and poll clerks whose duty among
others was to transfer the names of excess voters in other precincts to the list of a
newly created precinct. S e v e r a l v o t e r s w e r e o m i t t e d i n t h e
l i s t . Because their names were not in the list, some of them were not allowed to
vote. The accused were prosecuted for violation of Secs. 101 and 1 0 3 o f t h e
R e v i s e d E l e c t i o n C o d e . T h e accused claimed that they made
the omission in good faith. The trial court seemed to believe that n o t
w i t h s t a n d i n g t h e f a c t t h a t t h e a c c u s e d committed in good faith
t h e s e r i o u s o f f e n s e charged, the latter are criminally responsible
therefor, because such offense is malum p r o h i b i t u m , a n d ,
c o n s e q u e n t l y , t h e a c t constituting the same need not be
committed with malice or criminal intent to be punishable.
Held:
T h e a c t s o f t h e a c c u s e d c a n n o t b e merely mala prohibita - they
are mala per se .
The omission or failure to include a voters name in the registry list
o f v o t e r s i s n o t o n l y wrong because it is prohibited; it is wrong per s e
b e c a u s e i t d i s e n f r a n c h i s e s a v o t e r a n d violates one of his
fundamental rights. Hence, for such act to be punishable, it must be shown that it
has been committed with malice. There is no clear showing in the instant
case that the accused intentionally, willfully and maliciously omitted or failed to
include in the registry list of voters the names of those voters. They cannot be punished
criminally.
*
the Revised Election Code, as far as its penal provisions are concerned, is a
special law, itbeing not a part of the RPC or its amendments

G.R. No. L-20552

May 20, 1966

FILIPINAS LIFE ASSURANCE CO., ET AL., petitioners,

vs.
GONZALO P. NAVA, respondent.
Araneta, Mendoza and Papa for petitioners.
Bengzon, Villegas and Zarraga and G. Advincula for respondent.
BAUTISTA ANGELO, J.:
This is a petition for review of a decision of the Court of Appeals which affirms that of the
court a quo (1) rescinding the insurance contracts entered into between plaintif and
defendants; (2) ordering defendant Filipinas Life Assurance Co. to pay plaintif the amount of
P32,072.60 as the total amount paid by said plaintif on his insurance policies; and (3)
ordering defendant Insular Life Assurance Co., Ltd. to pay plaintif the amount of P2,574.00
as the total amount paid by plaintif on account of his insurance policy.
On January 1, 1936, plaintif and defendant Insular Life Assurance Co., Ltd. entered into a
contract of life insurance with a face value of P5,000.00 for which the insurer issued Policy
No. 58999.
On February 28, 1939, plaintif and defendant Filipinas Life Assurance Co. entered into 17
separate contracts of life insurance for which the insurer issued 17 life insurance policies,
one of said policies having a face value of P10,000.00 while the rest a face value of
P5,000.00 each, or a total of P90,000.00. Each and everyone of the 18 policies issued by
defendants to plaintif contains a loan clause of the following tenor:
Policy loans. After three full years' premiums have been paid upon this Policy, if no
premium payment is in default, the Company, subject to its then existing rules, will
advance on proper assignment and delivery of this Policy and on the sole security
thereof a sum equal to, or at the option of the owner less than, the cash value
specified in the Schedule of Policy Values, less any existing indebtedness on or
secured by this Policy and any unpaid balance of the premium for the current policyyear; provided interest at six per centum per annum on the whole amount of the loan
is paid in advance to the end of the current policy-year. At the end of the current
policy-year interest at the same rate for one year in advance will be due and payable,
and annually thereafter, and if not so paid will be added to the principal and bear the
same rate of interest. Failure to repay any such loan or interest shall not avoid this
Policy unless the total indebtedness shall equal or exceed the full amount of the loan
value available hereunder.
Any indebtedness on this Policy shall first be deducted from any money payable or in
any settlement under this Policy.
On account of the policies abovementioned, plaintif had so far paid to defendant Insular Life
Assurance Co., Ltd. the following amounts: from 1936 to December, 1941, P1,544.40, and
from January, 1942 to January, 1945, P1,029.60, or a total of P2,574.00; and to defendant
Filipinas Life Assurance Co. plaintif had paid the following amounts: from February, 1939 to
December, 1941, P13,976.40, and from January, 1942 to January, 1945, P18,096.20, or a
total of P32,072.60. In other words, the total amount paid by plaintif to defendants on the
18 policies before the war and during the Japanese occupation is P34,646.60.
On April 28, 1948, plaintif applied to defendants for a loan in the sum of P5,000.00 in line
with the loan clause contained in said policies, but defendants refused to grant the loan on
the excuse that certain regulations issued by the Insurance Commissioner on May 20, 1946
required the insurance companies to withhold the payments on premiums made during the
Japanese occupation because the same shall be subject to future adjustments " as soon as
debtor-creditor relationship is established" and because of such process of "withholding"
plaintif was not entitled to borrow any amount until such adjustment has been made.
On September 30, 1948, plaintif called the attention of the insurance companies to the
decision of our Supreme Court in the case of Haw Pia v. China Banking Corporation1
establishing and recognizing the relationship of debtor and creditor with respect to
payments in fiat currency made during the Japanese occupation on pre-war obligations, but

in spite of that fact the insurance companies refused to give to plaintif the loan he solicited
giving as reason the excuse that said decision of our Supreme Court was not applicable to
transactions undertaken during Japanese occupation when they relate to life insurance
policies. On February 4, 1949, plaintif reiterated his request for his much-needed loan of
P5,000.00, and as said request was again refused by the insurance companies
notwithstanding the fact that the total amount of the cash surrender values of the 18
policies issued in his favor reached the sum of P9,468.29, plaintif commenced the present
action on February 10, 1949 before the Court of First Instance of Manila praying for the
rescission of the abovementioned 18 policies and for the refund to him of all the premiums
so far paid by him to defendants in the amount of P31,633.80, plus 6% interest thereon as
damages, and the costs of action.
On November 28, 1951, defendants passed a resolution which was approved by the
Insurance Commissioner, giving full credit to all premium payments made by their
policyholders in fiat currency during the Japanese occupation on account of pre-war policies
for which reason they filed an amended answer ofering to pay plaintif the amount of
P9,468.29 which represents the aggregate cash surrender values of all the policies in
question as of February 10, 1949, but apparently this ofer was refused.
After trial, the court a quo rendered judgment the dispositive part of which already appears
recited in the early part of this decision. This is the decision that was later affirmed by the
Court of Appeals in its decision of November 14, 1962, from which defendants interposed
the present petition for review.
In the present petition for review, petitioners now contend that the Court of Appeals erred
(1) in ruling that as a consequence of the decision in the Haw Pia case petitioners violated
the loan clause contained in the insurance policies thereby entitling respondent to their
rescission; (2) in ruling that by virtue of Article 1295 of the old Civil Code petitioners should
refund to defendant all the premiums paid on his insurance policies as a consequence of
their rescission; and (3) in not ruling that, even if respondent is entitled to the rescission of
said insurance policies, he can only recover their cash surrender value at the time the
complaint was filed on February 10, 1949.
The issues raised will be the subject of separate consideration.
1. It is contended that the failure of petitioners to give to respondent the loan of P5,000.00
applied for by him on April 28, 1948 was justified in view of certain regulations issued by the
Insurance Commissioner on May 20, 1946 which, among other things, provide that the
amount corresponding to occupation premiums paid on pre-war policies as well as those
paid on pre-war loans should be withheld subject to adjustment "as soon as debtor-creditor
relationship is established", for which reason petitioners were not in a position to grant the
loan considering the amount of the fiat currency employed by respondent to pay the
premiums during the Japanese occupation, and since this eventuality has not yet occurred it
stands to reason that petitioners cannot be made responsible to respondent for their alleged
non-compliance with the loan clause contained in the insurance policies issued to
respondent.
But, as correctly stated by the Court of Appeals, even assuming the validity of the
regulations issued by the Insurance Commissioner which required the withholding of the
payments made in fiat currency of the premiums on insurance policies issued before the war
subject to whatever adjustment that may be made after the relationship between debtor
and creditor shall have been established, the fact however is that such requirement has
already lost its legal efect and value when on April 9, 1948 our Supreme Court rendered its
decision in the Haw Pia case wherein it was declared, among others, that all payments made
in fiat currency during the Japanese occupation in relation with any contractual obligation
executed before the war were valid to all intents and purposes, and yet petitioners
apparently did not give any importance to such decision for in their opinion it does not have
any application to transactions which have any relation to payment of premiums on life
insurance policies. In other words, petitioners maintain that the Haw Pia case did not settle
the question of valuation or premium payments in Japanese military notes during the war on
life insurance policies because what said case merely settled was the validity of payments in
fiat currency by a debtor to a creditor. Stated in another way, petitioners are of the opinion
that the Haw Pia case did not settle the question of the valuation or premium payments in
Japanese military notes during the war on life insurance policies because the insured is by
no means a debtor of the insurer, nor is the insurer his creditor, considering that there is
absolutely no obligation on his part to pay the premiums.

There is no merit in this contention. In the Haw Pia case it was ruled in a clear manner that
payments made in Japanese military notes on account of contractual obligations entered
into before the war are valid payments for all legal intents and purposes, and this ruling was
reiterated in other similar cases.2 And it cannot be denied that a life insurance policy
involves a contractual obligation wherein the insured becomes duty bound to pay the
premiums agreed upon, lest he runs the risk of having his insurance policy lapse if he fails to
pay such premiums. The fact that if the insured had paid in full the premiums corresponding
to the first three years of the life of his policy he cannot be considered delinquent that would
cause the lapse of his policy if the same contains an automatic premium payment clause
cannot divest such policy of its contractual nature, for the result of such failure would only
be for him to pay later the premium plus the corresponding interest depending upon the
condition of the policy. But certainly it does not cease to be a contractual liability insofar as
the payment of that premium is concerned for whether he likes it or not that premium has to
be paid lest he allows the lapse of his policy. Consequently, the payment of premiums on the
life insurance policies made by herein respondent before and during the war up to the time
he applied for the loan in question with petitioners should be considered likewise as valid
payments upon the theory that such insurance policies are in the nature of a contractual
obligation within the meaning of the civil law. In efect, therefore, those payments were
made by a debtor to a creditor within the meaning of the requirement of the regulations of
the Insurance Commissioner and as such they can ofer no excuse to petitioners for refusing
to grant the loan as contemplated in the loan clause embodied in the policies in question.
1wph1.t
The fact, however, is that the oft-repeated regulations of the Insurance Commissioner are of
doubtful validity if their efect is to suspend the efectivity of a provision or clause embodied
in a valid insurance policy for that would partake of the nature of a regulation the efect of
which would be to infringe or impair a contractual obligation in violation of Section 1(10),
Article III, of our Constitution. In the case of Lim, et al. vs. Register of Deeds of Rizal, 3 this
Court has held that an administrative official has no power to issue a circular or a regulation
the efect for that would be violative of our Constitution.
It is, therefore, clear from the foregoing that the petitioners violated the loan clause
embodied in each of the 18 life insurance policies issued to respondent to rescind all said
policies under Section 69 of the Insurance Act, which provides: "The violation of a material
warranty, or other material provision of a policy, on the part of either party thereto, entitles
the other to rescind."
The citation that petitioners make from Vance on Insurance to the efect that "The general
rule is that a breach of the agreement to make the loan does not entitle the insured to
rescind the contract," is not controlling in this jurisdiction. Firstly, it was not shown that the
insurance laws in the states where said ruling prevails contain a provision identical to
Section 69 of our Insurance Law we quoted above, and secondly, the rule cited by Vance is
not a rule uniformly followed by all states in the United States, for on this matter there is a
marked divergence of opinion. In fact, in a case that occured in the State of Texas, held that
the insured had the right to ask for the rescission of said contract and ordered the insurer to
refund all premiums paid by him.4
2. Petitioners likewise contend that even if respondent is entitled to rescind the policies in
question he is not entitled to recover all premiums paid by him to petitioners on account of
the 18 life insurance policies question but merely to their cash surrender value upon the
theory that the respondent had fully enjoyed the protection of the insurance on his life
during the period of the policies to the extent that during that time petitioners had assumed
the risk of the death of said respondent. Petitioners in efect lay stress on the fact that had
respondent died in the meantime they would have paid total sum of P95,000.00 on account
of his policies.
This contention has no basis. Considering that our Insurance Law does not contain an
express provision as to what the court should do in cases of rescission of an insurance policy
under Section 69, the provision that should apply is that embodied in Article 1225 of the old
Civil Code, as postulated in Article 16 of the same Code, which provides that on matters
which are not governed by special laws the provisions of said Code shall supplement its
deficiency. And said Article 1295 provides:
ART. 1295. Rescission makes necessary the return of the things which were the
subject-matter of the contract, with their fruits, and of the price paid, with interest
thereon. ...xxx

We find, therefore, correct the ruling of the Court of Appeals which orders petitioners to
refund to respondent all premiums paid by him up to the filing of the action amounting to
P34,644.60.
Petitioners, however, insist that the correct ruling is not what the Court of Appeals has
stated but what is hereinafter quoted because such is the weight of authority on that matter.
Said the petitioners: "Recovery of the full amount of the premium after the insurer has
sustained for sometime the risk of the insurance and the insured has enjoyed the benefit of
protection is obviously unjust and is so recognized by the better authorities."
Again we find this statement incorrect, for according to American Law Reports Annotated,
the ruling above quoted merely represents the minority rule in the United States, the
majority rule being that the insured can recover all premiums paid, in some cases with
interest in case of wrongful cancellation, repudiation, termination or rescission of the
contract of life insurance.5
Nor do we find tenable the contention that because respondent cannot restore to petitioners
the "value of the benefit of protection" which he might have received under the 18 life
insurance policies in question he is not entitled to rescind them under the provision of Article
1295 of the old Civil Code, because it should be here stated that said article only
contemplates a transaction whether material things are involved, and do not refer to
intangible ones which cannot be the subject of restoration, for to interpret it otherwise would
be to defeat the law itself with the result that rescission can never be had under Section 69
of our Insurance Law. And it cannot be denied that petitioners had in turn already derived
material benefits from the use of premiums paid to them by respondent before, during and
after the last war from which they must have realized huge profits, and in this light alone
petitioners cannot claim prejudice or unfairness if they are ordered to refund the premiums
paid by respondents.
3. Anent this issue, petitioners point out that the Court of Appeals erred in not ruling that
even if respondent is entitled to the rescission of his 18 life insurance policies he can only
recover legally and equitably their cash surrender value at the time the complaint was filed
on February 10, 1949.
Inasmuch as this contention is but a corollary to the conclusion we have reached in the
discussion of the preceding assignment of error, we believe that further refutation thereof is
unnecessary.
Wherefore, the decision appealed from is affirmed. Cost against petitioners.
Bengzon, C.J., Conception, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Sanchez, JJ.,
concur.
Bengzon, J.P. and Zaldivar, JJ., took no part.
Footnotes
1

80 Phil. 604.

Hongkong and Shanghai Banking Corporation v. Luis Perez Samanillo. Inc., 82 Phil.
851; Philippine Trust Company v. Araneta, 83 Phil. 132.
3

46 O.G., 3665; See also Primicias v. Furgoso, 45 O.G. 3280.

Bank Savings Life Insurance Co. v. Steiner, 81 S.W. 2d. p. 225.

48 A.L.R., 110-111.

G.R. No. 113213 August 15, 1994

PAUL JOSEPH WRIGHT, petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI, M.M.
and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents.
Rodrigo E. Mallari for petitioner.
Aurora Salva Bautista collaborating for petitioner.

KAPUNAN, J.:
A paramount principle of the law of extradition provides that a State may not surrender any
individual for any ofense not included in a treaty of extradition. This principle arises from
the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the
territorial integrity of the host State and a delimitation of the sovereign power of the State
within its own territory. 1 The act of extraditing amounts to a "delivery by the State of a
person accused or convicted of a crime, to another State within whose territorial jurisdiction,
actual or constructive, it was committed and which asks for his surrender with a view to
execute justice." 2 As it is an act of "surrender" of an individual found in a sovereign State to
another State which demands his surrender 3, an act of extradition, even with a treaty
rendered executory upon ratification by appropriate authorities, does not imposed an
obligation to extradite on the requested State until the latter has made its own
determination of the validity of the requesting State's demand, in accordance with the
requested State's own interests.
The principles of international law recognize no right of extradition apart from that arising
from treaty. 4 Pursuant to these principles, States enter into treaties of extradition principally
for the purpose of bringing fugitives of justice within the ambit of their laws, under
conventions recognizing the right of nations to mutually agree to surrender individuals
within their jurisdiction and control, and for the purpose of enforcing their respective
municipal laws. Since punishment of fugitive criminals is dependent mainly on the
willingness of host State to apprehend them and revert them to the State where their
ofenses were committed, 5 jurisdiction over such fugitives and subsequent enforcement of

penal laws can be efectively accomplished only by agreement between States through
treaties of extradition.
Desiring to make more efective cooperation between Australia and the Government of the
Philippines in the suppression of crime, 6 the two countries entered into a Treaty of
Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the
provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the
Senate on September 10, 1990 and became efective thirty (30) days after both States
notified each other in writing that the respective requirements for the entry into force of the
Treaty have been complied with. 7
The Treaty adopts a "non-list, double criminality approach" which provides for broader
coverage of extraditable ofenses between the two countries and (which) embraces crimes
punishable by imprisonment for at least one (1) year. Additionally, the Treaty allows
extradition for crimes committed prior to the treaty's date of efectivity, provided that these
crimes were in the statute books of the requesting State at the time of their commission.
Under the Treaty, each contracting State agrees to extradite. . . "persons
. . . wanted for prosecution of the imposition or enforcement of a sentence in the Requesting
State for an extraditable ofense." 8 A request for extradition requires, if the person is
accused of an ofense, the furnishing by the requesting State of either a warrant for the
arrest or a copy of the warrant of arrest of the person, or, where appropriate, a copy of the
relevant charge against the person sought to be extradited. 9
In defining the extraditable ofenses, the Treaty includes all ofenses "punishable under the
Laws of both Contracting States by imprisonment for a period of at least one (1) year, or by
a more severe penalty." 10 For the purpose of the definition, the Treaty states that:
(a) an ofense shall be an extraditable ofense whether or not the laws of the
Contracting States place the ofense within the same category or denominate
the ofense by the same terminology;
(b) the totality of the acts or omissions alleged against the person whose
extradition is requested shall be taken into account in determining the
constituent elements of the ofense. 11
Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in
his country. Extradition proceedings were filed before the Regional Trial Court of Makati,
which rendered a decision ordering the deportation of petitioner. Said decision was sustained
by the Court of Appeals; hence, petitioner came to this Court by way of review on certiorari,
to set aside the order of deportation. Petitioner contends that the provision of the Treaty
giving retroactive efect to the extradition treaty amounts to an ex post facto law which
violates Section 21 of Article VI of the Constitution. He assails the trial court's decision
ordering his extradition, arguing that the evidence adduced in the court below failed to show
that he is wanted for prosecution in his country. Capsulized, all the principal issues raised by
the petitioner before this Court strike at the validity of the extradition proceedings instituted
by the government against him.
The facts, as found by the Court of Appeals,

12

are undisputed:

On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of

Foreign Afairs indorsed to the Department of Justice Diplomatic Note No.
080/93 dated February 19, 1993 from the Government of Australia to the
Department of Justice through Attorney General Michael Dufy. Said Diplomatic
Note was a formal request for the extradition of Petitioner Paul Joseph Wright
who is wanted for the following indictable crimes:
1. Wright/Orr Matter one count of Obtaining Property by Deception contrary
to Section 81(1) of the Victorian Crimes Act of 1958; and
2. Wright/Cracker Matter Thirteen (13) counts of Obtaining Properties by
Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; one
count of attempting to Obtain Property by Deception contrary to Section
321(m) of Victorian Crimes Act of 1958; and one count of Perjury contrary to

Section 314 of Victorian Crimes Act of 1958, which crimes were allegedly
committed in the following manner:
The one (1) count of Obtaining Property by Deception contrary
to Section 81 (1) of the Victorian Crimes Act of 1958 constitutes
in Mr. Wright's and co-ofender, Herbert Lance Orr's, dishonesty
in obtaining $315,250 from Mulcahy, Mendelson and Round
Solicitors (MM7R), secured by a mortgage on the property in
Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a
company controlled by a Rodney and a Mitchell, by falsely
representing that all the relevant legal documents relating to
the mortgage had been signed by Rodney and Janine Mitchell.
The thirteen (13) counts of Obtaining Property by Deception
contrary to Section 81(1) of the Victorian Crimes Act of 1958
constitutes in Mr. Wright's and co-ofender Mr. John Carson
Craker's receiving a total of approximately 11.2 in commission
(including $367,044 in bonus commission) via Amazon Bond Pty.
Ltd., depending on the volume of business written, by
submitting two hundred fifteen (215) life insurance proposals,
and paying premiums thereon (to the acceptance of the policies
and payment of commissions) to the Australian Mutual
Provident (AMP) Society through the Office of Melbourne Mutual
Insurance, of which respondent is an insurance agent, out of
which life proposals none are in existence and approximately
200 of which are alleged to have been false, in one or more of
the following ways:
( i ) some policy-holders signed up only because they were told
the policies were free (usually for 2 years) and no payments
were required.
(ii) some policy-holders were ofered cash inducements ($50 or
$100) to sign and had to supply a bank account no longer used
(at which a direct debit request for payment of premiums would
apply). These policy-holders were also told no payments by
them were required.
(iii) some policy-holders were introduced through the "Daily
Personnel Agency", and again were told the policies were free
for 2 years as long as an unused bank account was applied.
(iv) some policy-holders were found not to exist.
The one count of Attempting to Obtain Property by Deception
contrary to Section 321(m) of the Victorian Crimes Act of 1958
constitutes in Mr. Wright's and Mr. Craker's attempting to cause
the payment of $2,870.68 commission to a bank account in the
name of Amazon Bond Pty. Ltd. by submitting one proposal for
Life Insurance to the AMP Society, the policy-holder of which
does not exist with the end in view of paying the premiums
thereon to insure acceptance of the policy and commission
payments.
The one count of Perjury contrary to Section 314 of Victorian
Crimes Act of 1958 constitutes in Mr. Wright's and Mr. Craker's
signing and swearing before a Solicitor holding a current
practicing certificate pursuant to the Legal Profession Practice
Act (1958), a Statutory Declaration attesting to the validity of
29 of the most recent Life Insurance proposals of AMP Society
and containing three (3) false statements.
Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty
concluded between the Republic of the Philippines and Australia on
September 10, 1990, extradition proceedings were initiated on April 6, 1993

by the State Counsels of the Department of Justice before the respondent

court.
In its Order dated April 13, 1993, the respondent court directed the petitioner
to appear before it on April 30, 1993 and to file his answer within ten days. In
the same order, the respondent Judge ordered the NBI to serve summons and
cause the arrest of the petitioner.
The respondent court received return of the warrant of arrest and summons
signed by NBI Senior Agent Manuel Almendras with the information that the
petitioner was arrested on April 26, 1993 at Taguig, Metro Manila and was
subsequently detained at the NBI detention cell where petitioner, to date,
continue to be held.
Thereafter, the petitioner filed his answer.
In the course of the trial, the petitioner testified that he was jobless, married
to a Filipina, Judith David, with whom he begot a child; that he has no case in
Australia; that he is not a fugitive from justice and is not aware of the ofenses
charged against him; that he arrived in the Philippines on February 25, 1990
returned to Australia on March 1, 1990, then back to the Philippines on April
11, 1990, left the Philippines again on April 24, 1990 for Australia and
returned to the Philippines on May 24, 1990, again left for Australia on May
29, 1990 passing by Singapore and then returned to the Philippines on June
25, 1990 and from that time on, has not left the Philippines; and that his
tourist visa has been extended but he could not produce the same in court as
it was misplaced, has neither produced any certification thereof, nor any
temporary working visa.
The trial court, in its decision dated 14 June 1993, granting the petition for extradition
requested by the Government of Australia, concluding that the documents submitted by the
Australian Government meet the requirements of Article 7 of the Treaty of Extradition and
that the ofenses for which the petitioner were sought in his country are extraditable
ofenses under Article 2 of the said Treaty. The trial court, moreover, held that under the
provisions of the same Article, extradition could be granted irrespective of when the ofense
in relation to the extradition was committed, provided that the ofense happened to be
an ofense in the requesting State at the time the acts or omissions constituting the same
were committed. 13
Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals
assigning the following errors:
I. THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING
RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE THE
FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT THE
ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE EXTRADITED
TOOK PLACE IN 1988-1989 AT THE TIME THERE WAS NO EXTRADITION TREATY
BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA.
II. THAT THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING
RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN
THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN "EX
POST FACTO LAW" AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987
CONSTITUTION.
III. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE
EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE
ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION IN
AUSTRALIA.
IV. THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION,
AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING THE EXTENDED
STAY OF PETITIONER AS EVIDENCE OF PETITIONER'S DESIGN TO HIDE AND
EVADE PROSECUTION IN AUSTRALIA.

V. THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE

EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR
DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND TRIAL
IN AUSTRALIA.
The Court of Appeals affirmed the trial court's decision on September 14, 1993 and denied
petitioner's Motion for Reconsideration on December 16, 1993. 14 Reiterating substantially
the same assignments of error which he interposed in the Court of Appeals, petitioner
challenges in this petition the validity of the extradition order issued by the trial court as
affirmed by the Court of Appeals under the Treaty. Petitioner vigorously argues that the trial
court order violates the Constitutional prohibition against ex post facto laws. He avers that
for the extradition order to be valid, the Australian government should show that he "has a
criminal case pending before a competent court" in that country "which can legally pass
judgement or acquittal or conviction upon him."
Clearly, a close reading of the provisions of the Treaty previously cited, which are relevant to
our determination of the validity of the extradition order, reveals that the trial court
committed no error in ordering the petitioner's extradition. Conformably with Article 2,
Section 2 of the said Treaty, the crimes for which the petitioner was charged and for which
warrants for his arrest were issued in Australia were undeniably ofenses in the Requesting
State at the time they were alleged to have been committed. From its examination of the
charges against the petitioner, the trial court correctly determined that the corresponding
ofenses under our penal laws are Articles 315(2) and 183 of the Revised Penal Code on
swindling/estafa and false testimony/perjury, respectively. 15
The provisions of Article 6 of the said Treaty pertaining to the documents required for
extradition are sufficiently clear and require no interpretation. The warrant for the arrest of
an individual or a copy thereof, a statement of each and every ofense and a statement of
the acts and omissions which were alleged against the person in respect of each ofense are
sufficient to show that a person is wanted for prosecution under the said article. All of these
documentary requirements were dully submitted to the trial court in its proceedings a quo.
For purposes of the compliance with the provisions of the Treaty, the signature and official
seal of the Attorney-General of Australia were sufficient to authenticate all the documents
annexed to the Statement of the Acts and Omissions, including the statement itself. 16 In
conformity with the provisions of Article 7 of the Treaty, the appropriate documents and
annexes were signed by "an officer in or of the Requesting State" 17 "sealed with . . . (a)
public seal of the Requesting State or of a Minister of State, or of a Department or officer of
the Government of the Requesting State," 18 and "certified by a diplomatic or consular officer
of the Requesting State accredited to the Requested State." 19 The last requirement was
accomplished by the certification made by the Philippine Consular Officer in Canberra,
Australia.
The petitioner's contention that a person sought to be extradited should have a "criminal
case pending before a competent court in the Requesting State which can legally pass
judgement of acquittal or conviction" 20 stretches the meaning of the phrase "wanted for
prosecution" beyond the intended by the treaty provisions because the relevant provisions
merely require "a warrant for the arrest or a copy of the warrant for the arrest of the person
sought to be extradited." 21 Furthermore, the 'Charge and Warrant of Arrest Sheets' attest to
the fact that petitioner is not only wanted for prosecution but has, in fact, absconded to
evade arrest and criminal prosecution. Since a charge or information under the Treaty is
required only when appropriate, i.e., in cases where an individual charged before a
competent court in the Requesting State thereafter absconds to the Requested State, a
charge or a copy thereof is not required if the ofender has in fact already absconded before
a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the
phrase "wanted for prosecution" to person charged with an information or a criminal
complaint renders the Treaty inefective over individuals who abscond for the purpose of
evading arrest and prosecution. 22
This brings us to another point raised by the petitioner both in the trial court and in the
Court of Appeals. May the extradition of the petitioner who is wanted for prosecution by the
government of Australia be granted in spite of the fact that the ofenses for which the
petitioner is sought in his country were allegedly committed prior to the date of efectivity of
the Treaty.
Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot be
given retroactive efect. Article 18 states:

ENTRY INTO FORCE AND TERMINATION

This Treaty shall enter into force thirty (30) days after the date on which the
Contracting States have notified each other in writing that their respective
requirements for the entry into force of this Treaty have been complied with.
Either contracting State may terminate this Treaty by notice in writing at any
time and it shall cease to be in force on the one hundred and eightieth day
after the day on which notice is given.
We fail to see how the petitioner can infer a prohibition against retroactive enforcement from
this provision. The first paragraph of Article 18 refers to the Treaty's date of efectivity; the
second paragraph pertains to its termination. Absolutely nothing in the said provision relates
to, much less, prohibits retroactive enforcement of the Treaty.
On the other hand, Article 2(4) of the Treaty unequivocally provides that:
4. Extradition may be granted pursuant to provisions of this Treaty irrespective
of when the ofense in relation to which extradition is requested was
committed, provided that:
(a) it was an ofense in the Requesting State at the time of the acts or
omissions constituting the ofense; and
(b) the acts or omissions alleged would, if they had taken place in the Territory
of the Requested State at the time of the making of the request for
extradition, have constituted an ofense against the laws in force in that state.
Thus, the ofenses for which petitioner is sought by his government are clearly extraditable
under Article 2 of the Treaty. They were ofenses in the Requesting State at the time they
were committed, and, irrespective of the time they were committed, they fall under the
panoply of the Extradition Treaty's provisions, specifically, Article 2 paragraph 4, quoted
above.
Does the Treaty's retroactive application violate the Constitutional prohibition against ex
post facto laws? Early commentators understood ex post facto laws to include all laws of
retrospective application, whether civil or criminal. 23 However, Chief Justice Salmon P.
Chase, citing Blackstone, The Federalist and other early U.S. state constitutions in Calder vs.
Bull 24 concluded that the concept was limited only to penal and criminal statutes. As
conceived under our Constitution, ex post facto laws are 1) statutes that make an act
punishable as a crime when such act was not an ofense when committed; 2) laws which,
while not creating new ofenses, aggravate the seriousness of a crime; 3) statutes which
prescribes greater punishment for a crime already committed; or, 4) laws which alter the
rules of evidence so as to make it substantially easier to convict a defendant. 25 "Applying
the constitutional principle, the (Court) has held that the prohibition applies only to criminal
legislation which afects the substantial rights of the accused." 26 This being so, there is no
absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the
Treaty's retroactive application with respect to ofenses committed prior to the Treaty's
coming into force and efect, violates the Constitutional prohibition against ex post facto
laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal
legislation nor a criminal procedural statute. "It merely provides for the extradition of
persons wanted for prosecution of an ofense or a crime which ofense or crime was already
committed or consummated at the time the treaty was ratified." 27
In signing the Treaty, the government of the Philippines has determined that it is within its
interests to enter into agreement with the government of Australia regarding the
repatriation of persons wanted for criminal ofenses in either country. The said Treaty was
concurred and ratified by the Senate in a Resolution dated September 10, 1990. Having
been ratified in accordance with the provision of the 1987 Constitution, the Treaty took
efect thirty days after the requirements for entry into force were complied with by both
governments.
WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals, we
hereby AFFIRM the same and DENY the instant petition for lack of merit.

SO ORDERED.
Davide, Jr., Bellosillo and Quiason, JJ., concur.
Cruz, J., is on leave.

#Footnotes

1 OPPENHEIM, INTERNATIONAL LAW: A TREATISE 362-369 (1912)

2 Cited in BISHOP, INTERNATIONAL LAW 471 (1962).
3 Terlindan v. Arnes, 184 U.S. 270, 289 (1902).
4 Factor v. Laubenheimer, 270 U.S. 276 (1933).
5 FENWICK, CASES OF INTERNATIONAL LAW 448 (1951).
6 See, TREATY OF EXTRADITION BETWEEN AUSTRALIA AND THE REPUBLIC OF
THE PHILIPPINES, cited Treaty.
7 See, Treaty, art. 18.
8 Id., art. 1. Emphasis supplied.
9 Id., art. 6.
10 Id., art. 2.
11 Id.
12 C.A. Decision, pp. 1-5, Rollo, pp. 33-37
13 Id.
14 Rollo, pp. 45-49.
15 Commission of fraud by means of false pretenses or fraudulent acts
executed prior to or simultaneous with the commission of fraud (Art. 315[2]):
(a) By using fictitious name or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits.
(b) By altering the quality, fineness or weight of anything pertaining to
his art or business.
(c) By pretending to have bribed any Government employee without
prejudice to the action for calumny, which the ofended party may
deem proper to bring against the ofender. In this case, the ofender
shall be punished by the maximum period of the penalty.
(d) By postdating a check, or issuing a check in payment of an
obligation when the ofender had no funds in the bank, or his funds
deposited therein were not sufficient to cover the amount of the check.
The failure of the drawer to the check to deposit the amount necessary
to cover his check within three (3) days from receipt of notice from the
bank and/or the payee or holder that said check has been dishonored
for lack or insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act. (As amended by Rep. Act
NO. 4885, approved June 17, 1967).

Art. 183. False testimony in other cases and perjury in solemn

affirmation.
. . .(I)mposed upon any person who, knowingly making untruthful
statements and not being included in the provisions of the next
preceding articles, shall testify under oath, or make an affidavit, upon
any material mater before a competent person authorized to
administer an oath in cases in which the law so requires.
Any person who, in case of a solemn affirmation made in lieu of an
oath, shall commit any of the falsehoods mentioned in this and the
three preceding articles of this section, shall sufer the respective
penalties provided therein.
16 See, Art. 6.
17 Art. 7 (a).
18 Art. 7 (b).
19 Art. 7 (c).
20 Rollo, pp. 21.
21 Art. 6, sec. 2.
22 C.A. Decision, pp. 41, Rollo, pp. 41.
23 2 STORY, COMMENTARIES, Sec. 1345.
24 3 Dall. 3 U.S. 386 (1798).
25 Id. See Mekin v. Wolfe, 2 Phil. 74, 77-78 (1903). See also, In re Kay Villegas
Kami where the following two elements were added: 5) assumes to regulate
civil rights and remedies only but in efect imposes a penalty or deprivation of
a right which when done was lawful; 6) deprives a person accused of a crime
some lawful protection to which he has become entitled, such as the
protection of the former conviction or acquittal, or a proclamation of amnesty.
26 1 BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES 489
(1987), citing Mekin, Id.
27 Rollo, pp. 39., C.A. DECISION, pp. 7.

People of the Philippines vs Smith

AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the
Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon,
et al., in CA-G.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States
Armed Forces.

He was charged with the crime of rape committed against a Filipina,

petitioner herein, sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic
Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A
of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath
filed by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as
Annex A, committed as follows:

That on or about the First (1st) day of November 2005,

inside the Subic Bay Freeport Zone, Olongapo City and within
the jurisdiction of this Honorable Court, the above-named
accuseds (sic), being then members of the United States
Marine Corps, except Timoteo L. Soriano, Jr., conspiring,
confederating together and mutually helping one another, with
lewd design and by means of force, threat and intimidation,
with abuse of superior strength and taking advantage of the
intoxication of the victim, did then and there willfully, unlawfully
and feloniously sexually abuse and have sexual intercourse with
or carnal knowledge of one Suzette S. Nicolas, a 22-year old
unmarried woman inside a Starex Van with Plate No. WKF-162,
owned by Starways Travel and Tours, with Office address at
8900 P. Victor St., Guadalupe, Makati City, and driven by
accused Timoteo L. Soriano, Jr., against the will and consent of
the said Suzette S. Nicolas, to her damage and prejudice.
CONTRARY TO LAW.1[1]

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, the United States, at
its request, was granted custody of defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of
Zambales to the RTC of Makati for security reasons, the United States Government faithfully
complied with its undertaking to bring defendant Smith to the trial court every time his
presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its
Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient
evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND
L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are
hereby ACQUITTED to the crime charged.

1[1] Annex B of RTC Decision, CA rollo, p. 45.

The prosecution having presented sufficient evidence against accused

L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS Essex, this
Court hereby finds him GUILTY BEYOND REASONABLE DOUBT of the crime of
RAPE defined under Article 266-A, paragraph 1 (a) of the Revised Penal Code,
as amended by R.A. 8353, and, in accordance with Article 266-B, first
paragraph thereof, hereby sentences him to sufer the penalty of reclusion
perpetua together with the accessory penalties provided for under Article 41
of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces
Agreement entered into by the Philippines and the United States, accused
L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall,
thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J.
SMITH is hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify
complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as
compensatory damages plus P50,000.00 as moral damages.
SO ORDERED.2[2]

As a result, the Makati court ordered Smith detained at the Makati jail until further
orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail
by a contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention
under the control of the United States government, provided for under new agreements
between the Philippines and the United States, referred to as the Romulo-Kenney Agreement
of December 19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the
United States of America agree that, in accordance with the Visiting Forces
Agreement signed between our two nations, Lance Corporal Daniel J. Smith,
United States Marine Corps, be returned to U.S. military custody at the U.S.
Embassy in Manila.
(Sgd.) KRISTIE A. KENNEY
(Sgd.) ALBERTO G. ROMULO
Representative of the United States Representative of the Republic
of America
of the Philippines
DATE:

12-19-06

DATE: December 19, 2006__

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Afairs of the Republic of the Philippines and the
Embassy of the United States of America agree that, in accordance with the
Visiting Forces Agreement signed between the two nations, upon transfer of
Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati

2[2] Annex B of CA rollo, pp. 36-96.

City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S.
Embassy Compound in a room of approximately 10 x 12 square feet. He will
be guarded round the clock by U.S. military personnel. The Philippine police
and jail authorities, under the direct supervision of the Philippine Department
of Interior and Local Government (DILG) will have access to the place of
detention to ensure the United States is in compliance with the terms of the
VFA.

The matter was brought before the Court of Appeals which decided on January 2,
2007, as follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for
having become moot.3[3]

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the
parties submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL
Smith because, first of all, the VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the
constitutionality of the VFA.

This was in Bayan v. Zamora,4[4] brought by Bayan, one of

petitioners in the present cases.

Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the
parties, the reversal of the previous ruling is sought on the ground that the issue is of
primordial importance, involving the sovereignty of the Republic, as well as a specific
mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.

3[3] Rollo, pp. 90-127.

4[4] G.R. No. 138570, October 10, 2000, 342 SCRA 449.

The reason for this provision lies in history and the Philippine experience in regard to
the United States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the
Philippine Commonwealth and, eventually, for the recognition of independence, the United
States agreed to cede to the Philippines all the territory it acquired from Spain under the
Treaty of Paris, plus a few islands later added to its realm, except certain naval ports and/or
military bases and facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other
places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not
Philippine territory, as they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent
allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never
advised for ratification by the United States Senate, a disparity in treatment, because the
Philippines regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines;
and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered
by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in
the 1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of
foreign military bases, troops or facilities in Philippine territory shall be equally binding on
the Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence
of the situation in which the terms and conditions governing the presence of foreign armed
forces in our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is
whether or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is
allowed under a treaty duly concurred in by the Senate xxx and recognized as a treaty
by the other contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,5[5] the VFA was duly concurred in by the Philippine
Senate and has been recognized as a treaty by the United States as attested and certified
by the duly authorized representative of the United States government.

5[5] Supra, note 4.

The fact that the VFA was not submitted for advice and consent of the United States
Senate does not detract from its status as a binding international agreement or treaty
recognized by the said State. For this is a matter of internal United States law. Notice can
be taken of the internationally known practice by the United States of submitting to its
Senate for advice and consent agreements that are policymaking in nature, whereas those
that carry out or further implement these policymaking agreements are merely submitted to
Congress, under the provisions of the so-called CaseZablocki Act, within sixty days from
ratification.6[6]
The second reason has to do with the relation between the VFA and the RP-US
Mutual Defense Treaty of August 30, 1951.

This earlier agreement was signed and duly

ratified with the concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:7[7]

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND

THE UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of
the United Nations and their desire to live in peace with all peoples and all
governments, and desiring to strengthen the fabric of peace in the Pacific
area.
Recalling with mutual pride the historic relationship which brought their
two peoples together in a common bond of sympathy and mutual ideals to
fight side-by-side against imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of unity
and their common determination to defend themselves against
external armed attack, so that no potential aggressor could be under the
illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for
collective defense for the preservation of peace and security pending

6[6] The Case-Zablocki Act, 1 U.S.C. 112b (a) (1976 ed., Supp IV).

See also Weinberger v. Rossi, 456 U.S. 25

(1982), in which the U.S. Supreme Court sustained recognition as a treaty of agreements not concurred in by the
U.S. Senate.

7[7] The RP-US Mutual Defense Treaty was signed in Washington, D.C. on August 30, 1951.

Its ratification
was advised by the US Senate on March 20, 1952, and the US President ratified the Treaty on April 15,
1952.
The Treaty was concurred in by the RP Senate, S.R. No. 84, May 12, 1952. The Philippine
instrument of ratification was signed by the RP President on August 27, 1952. The Agreement entered into
force on August 27, 1952 upon the exchange of ratification between the Parties.
This Agreement is published in II DFA TS No. 1, p. 13; 177 UNTS, p. 133; 3 UST 3847-3952. The RP
Presidential proclamation of the Agreement, Proc. No. 341, S. 1952, is published in 48 O.G. 4224 (Aug.
1952).

the development of a more comprehensive system of regional security in the

Pacific area.
Agreeing that nothing in this present instrument shall be considered or
interpreted as in any way or sense altering or diminishing any existing
agreements or understandings between the Republic of the Philippines and
the United States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of the
United Nations, to settle any international disputes in which they may be
involved by peaceful means in such a manner that international peace and
security and justice are not endangered and to refrain in their international
relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.
ARTICLE II. In order more efectively to achieve the objective of this
Treaty, the Parties separately and jointly by self-help and mutual aid
will maintain and develop their individual and collective capacity to
resist armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or their
deputies, will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either of them
the territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the Pacific
area on either of the parties would be dangerous to its own peace and safety
and declares that it would act to meet the common dangers in accordance
with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall
be immediately reported to the Security Council of the United Nations. Such
measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.
ARTICLE V. For the purpose of Article IV, an armed attack on either of
the Parties is deemed to include an armed attack on the metropolitan territory
of either of the Parties, or on the island territories under its jurisdiction in the
Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not afect and shall not be interpreted as
afecting in any way the rights and obligations of the Parties under the Charter
of the United Nations or the responsibility of the United Nations for the
maintenance of international peace and security.
ARTICLE VII. This Treaty shall be ratified by the Republic of the
Philippines and the United Nations of America in accordance with their
respective constitutional processes and will come into force when instruments
of ratification thereof have been exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party
may terminate it one year after notice has been given to the other party.
IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed
this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:

(Sgd.)
(Sgd.)
(Sgd.)
(Sgd.)

CARLOS P. ROMULO
JOAQUIN M. ELIZALDE
VICENTE J. FRANCISCO
DIOSDADO MACAPAGAL

For the United States of America:

(Sgd.)
(Sgd.)
(Sgd.)
(Sgd.)

DEAN ACHESON
JOHN FOSTER DULLES
TOM CONNALLY
ALEXANDER WILEY8[8]

Clearly, therefore, joint RP-US military exercises for the purpose of developing the
capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual
Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US
military exercises, is simply an implementing agreement to the main RP-US Military Defense
Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the
Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the
United Nations and their desire to strengthen international and regional
security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of
August 30, 1951;
Noting that from time to time elements of the United States armed
forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and the
Republic of the Philippines promotes their common security
interests;
Recognizing the desirability of defining the treatment of United States
personnel visiting the Republic of the Philippines;
Have agreed as follows:9[9]

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it

was not necessary to submit the VFA to the US Senate for advice and consent, but merely to
the US Congress under the CaseZablocki Act within 60 days of its ratification. It is for this
reason that the US has certified that it recognizes the VFA as a binding international
agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII,
Sec. 25 of our Constitution.10[10]

8[8] Emphasis supplied.

9[9] Emphasis supplied.
10[10] See Letter of Ambassador Thomas C. Hubbard quoted in Bayan, 342 SCRA 449, 491.

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of
the fact that the presence of the US Armed Forces through the VFA is a presence allowed
under the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has
been ratified and concurred in by both the Philippine Senate and the US Senate, there is no
violation of the Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
The VFA provides that in cases of ofenses committed by the members of the US
Armed Forces in the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with United
States military authorities, if they so request, from the commission of the
ofense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and
without delay, make such personnel available to those authorities in time for
any investigative or judicial proceedings relating to the ofense with which the
person has been charged. In extraordinary cases, the Philippine Government
shall present its position to the United States Government regarding custody,
which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one year
period will not include the time necessary to appeal. Also, the one year period
will not include any time during which scheduled trial procedures are delayed
because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the

Constitution, namely, that providing for the exclusive power of this Court to adopt rules of
procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the
transfer of custody of an accused to a foreign power is to provide for a diferent rule of
procedure for that accused, which also violates the equal protection clause of the
Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a
diferent treatment of a member of a foreign military armed forces allowed to enter our
territory and all other accused.11[11]

The rule in international law is that a foreign armed forces allowed to enter ones
territory is immune from local jurisdiction, except to the extent agreed upon. The Status of
Forces Agreements involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and reflect their bargaining
power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the
forces of the sending State only to the extent agreed upon by the parties. 12[12]

As a result, the situation involved is not one in which the power of this Court to adopt
rules of procedure is curtailed or violated, but rather one in which, as is normally
encountered around the world, the laws (including rules of procedure) of one State do not
extend or apply except to the extent agreed upon to subjects of another State due to
the recognition of extraterritorial immunity given to such bodies as visiting foreign armed
forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from

jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another States territory. On the contrary,
the Constitution states that the Philippines adopts the generally accepted principles of
international law as part of the law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a diferent
treatment when it comes to detention as against custody. The moment the accused has to
be detained, e.g., after conviction, the rule that governs is the following provision of the VFA:

Article V
Criminal Jurisdiction
xxx
Sec. 10.
The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed on by

11[11] See, the summation of the rule on equal protection in ISAGANI A. CRUZ, CONSTITUTIONAL LAW, pp. 123139 (2007), and the authorities cited therein.

12[12] See Dieter Fleck, Ed., The HANDBOOK OF THE LAW OF VISITING FORCES , Oxford: 2001.

appropriate Philippines and United States authorities. United States personnel

serving sentences in the Philippines shall have the right to visits and material
assistance.

It is clear that the parties to the VFA recognized the diference between custody
during the trial and detention after conviction, because they provided for a specific
arrangement to cover detention. And this specific arrangement clearly states not only that
the detention shall be carried out in facilities agreed on by authorities of both parties, but
also that the detention shall be by Philippine authorities. Therefore, the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are agreements on the detention of the
accused in the United States Embassy, are not in accord with the VFA itself because such
detention is not by Philippine authorities.

Respondents

should

therefore

comply

with

the

VFA

and

negotiate

with

representatives of the United States towards an agreement on detention facilities under

Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in
Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered
into by the United States are not automatically part of their domestic law unless these
treaties are self-executing or there is an implementing legislation to make them enforceable.

On February 3, 2009, the Court issued a Resolution, thus:

G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R.
No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R.
No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v. President
Gloria Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit

within three (3) days a Comment/Manifestation on the following points:

1.

What is the implication on the RP-US Visiting Forces Agreement

of the recent US Supreme Court decision in Jose Ernesto Medellin v.
Texas, dated March 25, 2008, to the efect that treaty stipulations that
are not self-executory can only be enforced pursuant to legislation to
carry them into efect; and that, while treaties may comprise
international commitments, they are not domestic law unless Congress
has enacted implementing statutes or the treaty itself conveys an
intention that it be self-executory and is ratified on these terms?

2.

Whether the VFA is enforceable in the US as domestic law, either

because it is self-executory or because there exists legislation to
implement it.

3.

Whether the RP-US Mutual Defense Treaty of August 30, 1951

was concurred in by the US Senate and, if so, is there proof of the US
Senate advice and consent resolution? Peralta, J., no part.

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,
because the parties intend its provisions to be enforceable, precisely because the
Agreement is intended to carry out obligations and undertakings under the RP-US Mutual
Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the
US faithfully complying with its obligation to produce L/CPL Smith before the court during the
trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki

Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days from their ratification be
immediately implemented. The parties to these present cases do not question the fact that
the VFA has been registered under the Case-Zablocki Act.

In sum, therefore, the VFA difers from the Vienna Convention on Consular Relations
and the Avena decision of the International Court of Justice (ICJ), subject matter of the
Medellin decision. The Convention and the ICJ decision are not self-executing and are not
registrable under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US
Senate on March 20, 1952, as reflected in the US Congressional Record, 82 nd Congress,
Second Session, Vol. 98 Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in
domestic courts varies from country to country.

As Ward N.

Ferdinandusse

states in his Treatise,

DIRECT APPLICATION OF

INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation

whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article
XVIII, Sec. 25, to require the other contracting State to convert their system to achieve
alignment and parity with ours. It was simply required that the treaty be recognized as a
treaty by the other contracting State.

With that, it becomes for both parties a binding

international obligation and the enforcement of that obligation is left to the normal recourse
and processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13[13] an

executive agreement is a treaty within the meaning of that word in international law and
constitutes enforceable domestic law vis--vis the United States.

Thus, the US Supreme

Court in Weinberger enforced the provisions of the executive agreement granting

preferential employment to Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American system:

1.

Art. II, Sec. 2 treaties These are advised and consented to by the US
Senate in accordance with Art. II, Sec. 2 of the US Constitution.

2.

ExecutiveCongressional Agreements: These are joint agreements of the

President and Congress and need not be submitted to the Senate.

3.

Sole Executive Agreements. These are agreements entered into by the

President. They are to be submitted to Congress within sixty (60) days of
ratification under the provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or
assistance has been given under it and this can only be done through implementing
legislation. The VFA itself is another form of implementation of its provisions.

13[13] Supra, Note 6.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals
Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces
Agreement (VFA) between the Republic of the Philippines and the United States, entered into
on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements
of December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and
respondent Secretary of Foreign Afairs is hereby ordered to forthwith negotiate with the
United States representatives for the appropriate agreement on detention facilities under
Philippine authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo
shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters
pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith
from the judgment of conviction.

No costs.

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