27.

If in the commission of direct assault with multiple attempted homicide the accused used an
unlicensed firearm, can the accused be convicted separately of the offenses of (a) illegal possession of
firearms under PD 1866, as amended by RA 8294, and (b) direct assault with attempted homicide?
Read all cases include the case of PEOPLE VS. LADJAALAM, G.R. Nos. 136149-51. September 19, 2000.

SUUGESTED ANSWERS:

People vs. Ladjaalam G.R. Nos. 136149-51. September 19, 2000

Facts:

Four Informations were filed against appellant Walpan Ladjaalam in the Regional Trial Court (RTC) of
Zamboanga City (Branch 16), three of which he was found guilty, to wit:

1) Maintaining a drug den in violation of Section 15-A, Article III, of Republic Act No. 6425
(Dangerous Drugs Act of 1972); - In his house in Rio Hondo, Zamboanga City.

2) Illegal possession of firearm and ammunition in violation of Presidential Decree No. 1866 as
amended by Republic Act. No. 8294; - then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and
other assorted firearms and explosives

3) Direct assault with multiple attempted homicide.-For

4) Charged with illegal possession of drugs – For methamphetamine hydrochloride (Shabu)

He was with his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini but the cases were
dismissed for them upon reinvestigation.

The following information was provided by the prosecution:

• In the afternoon of September 24, 1997, more than thirty (30) policemen proceeded to the
house of appellant and his wife to serve the search warrant when they were met by a volley of gunfire
coming from the second floor of the said house.

• They saw that it was the appellant who fired the M14 rifle towards them.

• Policemen took cover in the concrete fence. And slowly went inside the House

• After gaining entrance, they saw two old women and young girl and 3 children.

• Upon seeing to policemen 1 old woman went up with a child.

• This opted one of this policeman to shout “Don’t shoot the second floor! There are children”

The two of the police officers proceeded to the second floor where they earlier saw appellant firing the
rifle.

• As he noticed their presence, the appellant went inside the bathroom, dismantled the window,
and jumped from the window to the roof of a neighboring house.

• He was subsequently arrested at the back of his house after a brief chase.
• Several firearms and ammunitions were recovered from appellant’s house.

• Also found was a pencil case with fifty (50) folded aluminum foils inside, each containing
methamphetamine hydrochloride.

• A paraffin test was conducted and the casts taken both hands of the appellant yielded positive
for gunpowder nitrates.

• Records show that appellant had not filed any application for license to possess firearm and
ammunition, nor has he been given authority to carry firearms.

Issues:

Whether or not such use of an unlicensed firearm shall be considered as an aggravating circumstance.

Ruling:

NO.

The appealed Decision was affirmed with modifications. Appellant is found guilty only of two offenses:

(1) Direct assault and multiple attempted homicide with the use of a weapon and

(2) Maintaining a drug den.

Section 1 of RA 8294 substantially provides that any person who shall unlawfully possess any firearm or
ammunition shall be penalized, “unless no other crime was committed”. Furthermore, 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. Since the crime committed was direct assault and not
homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance.

The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that “no
other crime was committed by the person arrested.” If the intention of the law in the second paragraph
were to refer only to homicide and murder, it should have expressly said so, as it did in the third
paragraph. Verily, where the law does not distinguish, neither should [the courts].

A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime,
there can be no separate offense of simple illegal possession of firearms. Hence, if the “other crime” is
murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a
separate offense. Since direct assault with multiple attempted homicide was committed in this case,
appellant can no longer be held liable for illegal possession of firearms.

The Court is aware that this ruling effectively absolves the appellant of illegal possession of an M-14
rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty
for the first is prision mayor, for the second it is only prision correccional. Indeed, the accused may
evade conviction for illegal possession of firearms by using such weapons in committing an even lighter
offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto
menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is
not subject to the Court’s review. Any perception that the result reached here appears unwise should be
addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached
from the manifest intendment and language of the legislature. [The Court's] task is constitutionally
confined only to applying the law and jurisprudence to the proven facts, and [this Court] have done so in
this case.

To keep things simple: No illegal possession of fire arm. Illegal possession of firearm will only be applied
if there are no other crimes committed. He committed Direct Assault with Attempted Homicide,
therefore, no Illegal Possession of Firearm. Also, No aggravating cause there wasn’t any homicide or
murder.

People vs. Quijada

Case where a dance was held in a basketball court and Quijada kept on pestering Iroy’s sister and Quijada
killed the brother.

He was convicted of two separate offenses of murder and illegal use of firearm aggravated with illegal use
of firearm.

The unequivocal intent of the second par of section 1. of PD 1866 is to respect and preserve homicide or
murder as a distinct offense penalized under the RPC and to increasae the penalty for illegal possession
of firearm where such a firearm is used in killing a person.

Murder or Homicide is governed by the Revised Penal Code while Illegal Possession is under Special Penal
Laws. One crime cannot be absorbed into the other because the two are distinct and separate from each
other. Besides, one is not barred from making two separate charges.

People v Feloteo

There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it was
intended to remain in effect only for the duration of the martial law imposed upon the country by former
President Marcos. Neither does the statute contain any provision that so prescribes its lapsing into non-
enforceability upon the termination of the state or period of martial law. On the contrary, P.D. No. 1866
by its own terms purported to "consolidate, codify and integrate" all prior laws and decrees penalizing
illegal possession and manufacture of firearms, ammunition and explosives in order "to harmonize their
provisions," as well as to update and revise certain provisions and prior statutes "in order to more
effectively deter violators of the law on firearms, ammunitions and explosives." (The same as Tac an case)

Advincula vs. CA (2000)

The rule is well settled that in cases of Illegal Possession of Firearms, two (2) things must be shown to
exist: (a) the existence of the firearm, and (b) the fact that it is not licensed. However, it should be noted
that in People v. Ramos, citing People v. Gy Gesiong, this Court ruled: " . . . Even if he has the license, he
cannot carry the firearm outside his residence without legal authority therefor."
 Misolas vs. Panga (1990)

Illegal possession of firearms is not absorbed in rebellion or subversion. Hernandez ruling cannot find
application in this case because Misolas is being charged specifically for the qualified offense of illegal
possession of firearms and ammunition under PD 1866.

Baylosis vs. Chavez (1991)

Baylosis, de Vera and Marco Palo, all known high ranking officers of the CPP-NPA, were charged with a
illegal possession of firearms in furtherance of, or incident to, or in connection with the crimes of rebellion
or subversion. Charging the qualified offense of Illegal possession of firearms under PD 1866 does not
charge the complex crime of subversion with illegal possession of firearms, and hence does not run
counter to Hernandez, et al., is good and correct rule and is applicable in CAB.

People vs. Tiozon (1991)

 Section 1 of P.D. No. 1866 imposes the penalty of reclusion temporal in its maximum period to
reclusion perpetua "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." It goes further by providing that "if
homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed."
 It may be loosely said that homicide or murder qualifies the offense 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 offense; otherwise, an anomalous absurdity results whereby
a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory
offense, which is just a malum prohibitum. The rationale for the qualification, as implied from the
exordium of the decree, is to effectively deter violations of the laws on firearms and to stop the
"upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally
possessed and manufactured firearms, . . . " 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.
 However, to justify the imposition of the increased penalty under Section 1 of P.D. No. 1866 because
of the resulting crime of homicide or murder, the prosecution must allege in the information and
prove by the quantum of evidence required for conviction violation of said section and, more
specifically, the use of an unlicensed firearm and the commission of homicide or murder.
 Undoubtedly, there is unlawful possession under the foregoing section if one does not have the
license to possess the firearm. Even if he has the license, he cannot carry the firearm outside his
residence without legal authority therefor. It follows then that the lack or absence of a license is an
essential ingredient of the offense which the prosecution must allege and prove. Every element of
the crime must be alleged and proved.
 People vs. De Gracia (1994)

 The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the thing to one's control and
management. This has to be so if the manifest intent of the law is to be effective. The same evils, the
same perils to public security, which the law penalizes exist whether the unlicensed holder of a
prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary
concept of the possession can have no bearing whatsoever.
 But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess to constitute a violation of the law? This
query assumes significance since the offense of illegal possession of firearms is a malum prohibitum
punished by a special law, in which case good faith and absence of criminal intent are not valid
defenses.
 When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It
is sufficient that the offender has the intent to perpetrate the act prohibited by the special law.
Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by
the very nature of things, the crime itself. In the first (intent to commit the crime), there must be
criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done
freely and consciously.
 A distinction should be made between criminal intent and intent to possess. While mere possession,
without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the part of the accused. Such
intent to possess is, however, without regard to any other criminal or felonious intent which the
accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of
the accused to commit an offense with the use of an unlicensed firearm. This is not important in
convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty
of a violation of the decree, it is sufficient that the accused had no authority or license to possess a
firearm, and that he intended to possess the same, even if such possession was made in good faith
and without criminal intent.
 Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm
cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such
as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as
long as the animus possidendi is absent, there is no offense committed.

People vs. Garcia (2002)

Under R.A. 8294, if an unlicensed firearm is used in the commission of any crime, there can be no separate
offense of simple illegal possession of firearms. The language of the new law demonstrates the legislative
intent to favor the accused. The law is clear: the accused can be convicted of simple illegal possession of
firearms, provided that "no other crime was committed by the person arrested." If the intention of the
law in the second paragraph were to refer only to homicide and murder, it should have expressly said so,
as it did in the third paragraph. Where the law does not distinguish, neither should we.
 People vs. Castillo (2000)

Wilhelmina was kidnapped by persons pretending to be interested buyers of real estate. She was brought
to a safehouse in Quezon City, where the accused Gonzales was assigned to watch over her at all times.
Gonzales carried an unlicensed firearm while watching over Wilhelmina. When the police discovered the
safehouse, Gonzales immediately threw his firearm away from him. The police found more unlicensed
firearms in another room in the house. Gonzales was convicted of Illegal Possession of Firearms, with
penalty derived from P.D. 1866.

HELD: The penalty imposed on him by the trial court exceeded that prescribed by law. Under Republic
Act No. 8294, amending P. D. No. 1866, the penalty for illegal possession of firearm classified as high
powered is prision mayor minimum or six (6) years and one (1) day to eight (8) years and a fine of thirty
thousand (P30,000.00) pesos. Here, the offense was committed on November 27, 1992. Since the
amendatory law is favorable to the accused, it shall be given retroactive application.

People vs. Nepomuceno (1999)

RA8294 was passed which said that if a homicide or murder is committed with the use of an unlicensed
firearm, the latter cannot be tried separately but will just be treated as an aggravating circumstance.

People vs. Evangelista (1996)

Accused here was charged with murder and simple illegal possession of firearms. Accused here killed
someone with a homemade gun. However the court found the accused guilty of murder and aggravated
illegal possession of firearms (weapon used for murder) and sentenced him to death.
Held:

1) Accused cannot be found guilty of aggravated illegal possession as the information simply charged
simple illegal possession. That an unlicensed firearm was used in the commission of murder or
homicide is a qualifying circumstance. Consequently, it must be specifically alleged in the information,
otherwise the accused cannot be sentenced to death without violating his right to be informed of the
charge against him.
2) He cannot even be convicted of simple illegal possession as there was no proof that the gun was
unlicensed. The fact that the gun used was homemade does not mean that it cannot be licensed and
therefore it is right for the court to automatically assume that it is unlicensed. Even if a homemade
gun is used, it does not dispense with the required proof that the gun was indeed unlicensed.
Note: In this case, the amendatory law AR8294 had not yet been passed, therefore it was still allowed to
separately charge murder and illegal possession of firearms.

28. Memorize Distinctions between Public Officer, Person in Authority and Agent of a Person in
Authority

Art. 203. Who are public officers

 Public officers are any person who, by direct provision of the law, popular election or
appointment by competent authority, shall take part in the performance of public functions in
the Government of the Philippine Islands, of shall perform in said Government or in any of its
 branches public duties as an employee, agent or subordinate official, of any rank or class, shall
be deemed to be a public officer.

Article 152. Persons in authority and Agents of persons in authority

 A person in authority is one directly vested with jurisdiction, whether as an individual or as a member
of some court or government corporation, board or commission.
 Vested with jurisdiction – the power and authority to govern and execute the laws.
 Examples of person in authority: division superintendent of schools, president of sanitary division (in
a municipality), teachers, mayor, justice of peace, barangay captain and barangay chairman

 An agent of a person in authority is one who, by direct provision of law or by appointment by

competent authority, is charged with (1) the maintenance of public order and (2) the protection and
security of life and property.
 Examples: barrio councilman, barrio policeman, barangay leader, any person who comes to the aid of
persons in authority, sheriff, postmaster, agents of BIR, municipal treasurer, policemen

 Teachers, professors and persons charged with the supervision of public or duly recognized private
schools, colleges and universities, and lawyers in the actual performance of their professional duties
or on the occasion of such performance, shall be deemed persons in authority for purposes of Articles
148 (direct assault) and 151 (disobedience). By implication, Article 149 (indirect assault) is also
included.

29. Cases on Direct Assault, Qualified direct assault and Indirect assault

SUGGESTED ANSWERS:

People vs. Beltran

Mayor Quirolgico and patrolman Tolentino went to the Puzon compound to talk to Beltran and his
companions to surrender in connection with an incident where Beltran shouted “vulva of your mother”
to Alvarado and Urbi. Mayor and patrolman suffered gunshot wounds and the mayor’s son died due to a
simultaneous discharge of gunfire by the accused.

HELD: The accused are guilty of murder and double attempted murder with direct assault (under the 2nd
form of direct assault). The accused attacked and employed force against the mayor and police while the
latter were engaged in the actual performance of duty and the accused knew that they were assaulting
persons in authority.

People vs. Dollantes

Barangay Captain was delivering a speech to start a dance when Dollantes went to the middle of the
dancing floor making a dance movement, brandishing a knife and challenging everyone. The Barangay
Captain approached him and told him to stop and keep quiet. Dollantes and his companions stabbed and
eventually killed the Barangay Captain.

HELD: The accused were guilty of Assault upon a person in authority, resulting in Murder. The Barangay
captain was in the act of trying to pacify Dollantes who was making trouble in the dance hall when he was
stabbed to death. Hence, he was killed while in the performance of duties. A Barangay Captain is a person
in authority.

(Refer to record book na lang)