People v. Avecilla (2001) G.R. No.

117033
15 February 2001 YNARES-SANTIAGO, J.:
TOPIC IN SYLLABUS: Homicide
SUMMARY: Avecilla went to a basketball court and fired a gun in the air for no apparent reason. When he went to a
nearby store, a group of men began arguing with him. When one of those men, Afable, tried to pacify Avecilla, Avecilla
placed his arm around Afables neck and shot him in the abdomen. Afable tried to run away but Avecilla chased after
him. In the alley, another shot rang out. The Chief Barangay Tanod eventually arrived and took the gun from Avecilla.
Although Afable was rushed to the hospital, he eventually died. Avecilla was tried and convicted of Qualified Illegal
Possession of Firearms, under PD 1866.

DOCTRINE: Pursuant to the amendment found in RA8294, where murder or homicide results from the use of an
unlicensed firearm the crime is NO LONGER qualified illegal possession: instead, MURDER or HOMICIDE, as the
case may be. The unlicensed firearm shall now be appreciated as a mere aggravating circumstance. Separate
prosecutions for homicide and illegal possession are no longer in order.

FACTS:
14 Dec 1991: At around 11p, Rafael Avecilla (AVECILLA) arrived at a basketball court in Pandacan, Manila
and suddenly fired a gun in the air for no apparent reason.
o He then went to a nearby alley and then to a closed store 4m from the basketball court.
o At the store, he began arguing with a group of 3 men, Boy Manalaysay (MANALAYSAY), Jimmy
Tolentino (TOLENTINO), and Macario Afable, Jr. (AFABLE).
o When Afable tried to pacify Avecilla, Avecilla placed his left arm around Afables neck and shot him
pointblank in the abdomen.
Afable ran toward the alley and Avecilla ran after him.
Another shot rang out.
o A bystander, Carlos Taganas (TAGANAS) went to the alley he sawAfable and Avecilla grappling for
possession of the gun (a paltikm 0.38 Caliber).
o The Chief Barangay Tanod arrived and wrested the gun from Avecilla Avecilla immediately fled.
Afable was rushed to the Philippine General Hospital where he eventually died.
*** Avecilla was charged with Qualified Illegal Possessiom of Firearm (Sec. 1, Par. 2, PD 1866). ***
RTC: found Avecilla GUILTY as charged (reclusion perpetua).
Hence, Avecilla filed an appeal with the SC.

ISSUES:
1. Was it correct for Avecilla to be convicted of Qualified Illegal Possession of Firearms?

HELD:
1. NO, Avecilla cannot be convicted for Qualified Illegal Possession of Firearms (PD 1866) as the law has been amended
such that when Murder or Homicide has been committed with the use of an unlicensed firearm, such unlicensed
firearms shall only be appreciated as an AGGRAVATING CIRCUMSTANCE of Murder or HOMICIDE.
All the elements of Qualified Illegal Possession of Firearms (PD 1866) are present in the case at bar:
o There must be a firearm;
.38 Cal. Colt Paltik, w/o serial number, nickel plated with brown handle, 2 1/2 -in. barrel;
3 .38 Cal. Cartridge cases;
2 .38 Cal. Ammo;
1 .38 Cal. Slug (deformed) from the Medico Legal;
o The gun was possessed by the accused;
Eyewitness accounts;
DODOT HOMICIDE
 o The accused had no license from the government; and,
Certification of the Firearms and Explosives Office (1 Sep 1992) that Avecilla was NOT a
licensed/registered firearm holder of any kind or caliber.
o Homicide or murder was committed by the accused with the use of the firearm.
Eyewitness accounts that the gun was used by Avecilla to shoot Afable;
Medical Examination gunshot wounds sustained were caused by the paltik in the possession
of Avecilla and that these were the direct cause of the death of Afable;
Ballistics Test deformed .38 Cal. slugs found in the body of Afable were fired from the paltik.
HOWEVER, the law on illegal possession of firearms has been amended by RA 8294 (effective 6 Jul 1994).1
o Where murder or homicide results from the use of an unlicensed firearm crime is NO LONGER
qualified illegal possession: instead, MURDER or HOMICIDE, as the case may be.
The unlicensed firearm shall now be appreciated as a mere aggravating circumstance.
o Separate prosecutions for homicide and illegal possession are no longer in order. (People v. Neomuceno,
Jr.)
In People v. Bergante, which was quoted in Nepomuceno, the SC applied the rule retroactively,
pursuant to Art. 22 of the RPC, since Bergante was not a habitual criminal.
o The crime of illegal possession of firearm is now committed only where the unlicensed firearm is NOT
used to commit any of the crimes of MURDER, HOMICIDE, REBELLION, INSURRECTION, SEDITION,
or ATTEMPTED COUP DETAT.
Else, the use of an unlicensed firearm shall be treated either
As an essential ingredient in the crimes of rebellion, insurrection, sedition, or
attempted coup detat; or,
As an aggravating circumstance in murder or homicide.
As applied to the case at bar:
o The amendatory law shall be retroactively applied as it is favorable to Avecilla, pursuant to Art. 22,
RPC.
o Neither can Avecilla be charged with Simple Illegal possession, as this can only be done when no other
crime is committed.
o Neither can Avecilla be convicted of homicide or murder (aggravated by the use of an unlicensed
firearm) as those felonies had NOT been charged in the information and wer merely mentioned as the
result of the use of the unlicensed firearm
Avecilla was NOT arraigned for homicide or murder.

DISPOSITIVE: WHEREFORE, in view of the foregoing, the appealed decision is REVERSED. Criminal Case No. 92-
105691, for Qualified Illegal Possession of Firearm, is DISMISSED.

1 SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used
or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum
period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition: Provided, that no other crime was committed.

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If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection,
sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection,
sedition, or attempted coup d'etat. (Underscoring provided)
DODOT HOMICIDE