hour." Also, appellant often visits FFF because they were close friends.
He bore no grudge against
[G.R. No. 182239, March 16 : 2011]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HERMIE M. JACINTO, ACCUSED-
APPELLANT.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the
victim's positive identification of the accused as the perpetrator of the crime. [1] For it to prosper, the
court must be convinced that there was physical impossibility on the part of the accused to have
been at the locus criminis at the time of the commission of the crime.[2]
Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and
executory only after his disqualification from availing of the benefits of suspended sentence on the
ground that he/she has exceeded the age limit of twenty-one (21) years, shall still be entitled to the
right to restoration, rehabilitation, and reintegration in accordance with Republic Act No. 9344,
otherwise known as "An Act Establishing a Comprehensive Juvenile Justice and Welfare System,
Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating
Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA,[3] appellant Hermie M. Jacinto seeks before this Court
the reversal of the judgment of his conviction.[4]
The Facts
In an Information dated 20 March 2003[5] filed with the Regional Trial Court and docketed as
Criminal Case No. 1679-13-141[1],[6] appellant was accused of the crime of RAPE allegedly
committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 o'clock in the evening more or less, at
barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable
Court, [Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully and feloniously
had carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being
only five years old.[7]
On 15 July 2003, appellant entered a plea of not guilty.[8]
During pre-trial,[9]
the defense admitted
the existence of the following documents: (1) birth certificate of AAA, showing that she was born on
3 December 1997; (2) police blotter entry on the rape incident; and (3) medical certificate, upon
presentation of the original or upon identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their respective
versions of the story.
Evidence for the Prosecution
The testimonies of AAA,[10] her father FFF,[11] and rebuttal witness Julito Apiki [Julito][12] may be
summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFF's house is along the road. That of
appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to
pass by FFF's house, the frequency of which the latter describes to be "every minute [and] every
appellant prior to the incident.[13]
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time - playing at
the basketball court near her house, fetching water, and passing by her house on his way to the
road. She and appellant used to be friends until the incident.[14]
At about past 6 o'clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter CCC
to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned without AAA,
FFF was not alarmed. He thought she was watching television at the house of her aunt Rita Lingcay
[Rita].[15]
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum. [16] At
the store, he saw appellant place AAA on his lap.[17] He was wearing sleeveless shirt and a pair of
short pants.[18] All of them left the store at the same time.[19] Julito proceeded to the house of Rita to
watch television, while appellant, who held the hand of AAA, went towards the direction of the
"lower area or place."[20]
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants[21] when he held
her hand while on the road near the store.[22] They walked towards the rice field near the house of
spouses Alejandro and Gloria Perocho [the Perochos].[23] There he made her lie down on harrowed
ground, removed her panty and boxed her on the chest.[24] Already half-naked from waist
down,[25] he mounted her, and, while her legs were pushed apart, pushed his penis into her vagina
and made a push and pull movement.[26] She felt pain and cried.[27] Afterwards, appellant left and
proceeded to the Perochos.[28] She, in turn, went straight home crying.[29]
FFF heard AAA crying and calling his name from downstairs.[30] She was without slippers.[31] He
found her face greasy.[32] There was mud on her head and blood was oozing from the back of her
head.[33] He checked for any injury and found on her neck a contusion that was already turning
black.[34] She had no underwear on and he saw white substance and mud on her vagina.[35] AAA told
him that appellant brought her from the store[36] to the grassy area at the back of the house of the
Perochos;[37] that he threw away her pair of slippers, removed her panty, choked her and boxed her
breast;[38] and that he proceeded thereafter to the Perochos. [39]
True enough, FFF found appellant at the house of the Perochos.[40] He asked the appellant what he
did to AAA.[41] Appellant replied that he was asked to buy rum at the store and that AAA followed
him.[42] FFF went home to check on his daughter,[43] afterwhich, he went back to appellant, asked
again,[44] and boxed him.[45]
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the
house of Rita.[46] AAA and her mother MMM arrived.[47] AAA was crying.[48] Julito pitied her,
embraced her, and asked what happened to her, to which she replied that appellant raped
her.[49] Julito left and found appellant at the Perochos.[50] Julito asked appellant, "Bads, did you
really rape the child, the daughter of [MMM]?" but the latter ignored his question. [51] Appellant's
aunt, Gloria, told appellant that the policemen were coming to which the appellant responded, "Wait
a minute because I will wash the dirt of my elbow (sic) and my knees."[52] Julito did found the elbows
and knees of appellant with dirt.[53]
On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.[54] FFF also had AAA undergo a physical check up at the municipal health center.[55] Dr.
Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate [56] dated 29 January
2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o'clock and 9 o'clock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,[57] AAA submitted herself to another examination at the
provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the
provincial hospital, attended to her and issued a medico-legal certificate dated 29 January
2003,[58] the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no
bleeding in this time of examination. (sic)[59]
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his
testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he
was at the Perochos at the time of the commission of the crime.[60] Luzvilla even went further to
state that she actually saw Julito, not appellant, pick up AAA on the road. [61] In addition, Antonia
Perocho [Antonia], sister-in-law of appellant's aunt, Gloria,[62] testified on the behavior of Julito after
the rape incident was revealed.[63]
Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of
FFF's house.[64] He denied that there was a need to pass by the house of FFF in order to access the
road or to fetch water.[65] He, however, admitted that he occasionally worked for FFF, [66] and
whenever he was asked to buy something from the store, AAA always approached him. [67]
At about 8 o'clock in the morning of 28 January 2003, appellant went to the Perochos to attend a
birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle
Alejandro Perocho [Alejandro], were gathered together in a drinking session, appellant's uncle sent
him to the store to buy Tanduay Rum. Since the store is only about 20 meters from the house, he
was able to return after three (3) minutes. He was certain of the time because he had a watch . [68]
Appellant's aunt, Gloria, the lady of the house, confirmed that he was in her house attending the
birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle of
Tanduay from the store. She recalled that appellant was back around five (5) minutes later. She also
observed that appellant's white shorts and white sleeveless shirt were clean. [69]
At 6:30 in the evening,[70] Luzvilla, who was also at the party, saw appellant at the kitchen having a
drink with his uncle Alejandro and the rest of the visitors. [71] She went out to relieve herself at the
side of the tree beside the road next to the house of the Perochos.[72] From where she was, she saw
Julito, who was wearing black short pants and black T-shirt, carry AAA.[73] AAA's face was covered
and she was wiggling.[74] This did not alarm her because she thought it was just a
game.[75] Meanwhile, appellant was still in the kitchen when she returned.[76] Around three (3)
minutes later, Luzvilla saw Julito, now in a white T-shirt,[77] running towards the house of
Rita.[78] AAA was slowly following behind.[79] Luzvilla followed them.[80] Just outside the house,
Julito embraced AAA and asked what the appellant did to her. [81] The child did not answer.[82]
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that
appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant,
boxed him, and left. FFF came in the second time and again boxed appellant. This time, he had a
bolo pointed at appellant. Appellant's uncle Alejandro, a barangay councilor, and another Civilian
Voluntary Organization (CVO) member admonished FFF.[83]
On sur-rebuttal, Antonia testified that, at 7 o'clock in the evening, she was watching the television
along with other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of
black short pants without a shirt on, entered the house drunk. He paced back and forth. After 10
minutes, AAA came in crying. Julito tightly embraced AAA and asked her what happened. AAA did
not answer. Upon Antonia's advice, Julito released her and went out of the house.[84]
Appellant further testified that at past 7 o'clock in the evening, FFF arrived, pointed a finger at him,
brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o'clock in
the evening. This time, he boxed appellant and asked again why he molested his daughter. [85]
On 26 March 2004, the Regional Trial Court rendered its decision,[86] the dispositive portion of
which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape committed
upon a 5-year old girl, the court sentences him to death and orders him to pay [AAA] P75,000.000 as
rape indemnity and P50,000.00 as moral damages. With costs[87]
The defense moved to reopen trial for reception of newly discovered evidence stating that appellant
was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the
crime was committed on 28 January 2003.[88] The trial court appreciated the evidence and reduced
the penalty from death to reclusion perpetua.[89] Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended in
order to consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon
the accused, therefore[,] is reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of
the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate
review by the Court of Appeals of cases where the penalty imposed is death, reclusion perpetua, or
life imprisonment.[90]
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following
MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1)
day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months
of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim
in the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as
exemplary damages and to pay the costs.[91]
On 19 November 2007, the Court of Appeals gave due course to the appellant's Notice of
Appeal.[92] This Court required the parties to simultaneously file their respective supplemental
briefs.[93] Both parties manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.[94]
Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"[95] by invoking the principle that "if the inculpatory facts and circumstances are capable of
two or more reasonable explanations, one of which is consistent with the innocence of the accused
and the other with his guilt, then the evidence does not pass the test of moral certainty and will not
suffice to support a conviction."[96]
 Our Ruling A My vagina.
Q Did you cry?
We sustain the judgment of conviction. A Yes.[103]

In the determination of the innocence or guilt of a person accused of rape, we consider the three
well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the
accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in
which only two persons are usually involved, the testimony of the complainant must be scrutinized
with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits,
and cannot be allowed to draw strength from the weakness of the evidence for the defense. [97]
Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to
convict the accused.[98] More so, when the testimony is supported by the medico-legal findings of
the examining physician.[99]
Further, the defense of alibi cannot prevail over the victim's positive identification of the
perpetrator of the crime,[100] except when it is established that it was physically impossible for the
accused to have been at the locus criminis at the time of the commission of the crime.[101]
I of the crime are now in dispute.
The straightforward and consistent answers to the questions, which were phrased and re-phrased
in order to test that AAA well understood the information elicited from her, said it all - she had been
raped. When a woman, more so a minor, says so, she says in effect all that is essential to show that
rape was committed.[104] Significantly, youth and immaturity are normally badges of truth and
honesty.[105]
Further, the medical findings and the testimony of Dr. Micabalo [106] revealed that the hymenal
lacerations at 5 o'clock and 9 o'clock positions could have been caused by the penetration of an
object; that the redness of the introitus could have been "the result of the repeated battering of the
object;" and that such object could have been an erect male organ.[107]
The credible testimony of AAA corroborated by the physician's finding of penetration conclusively
established the essential requisite of carnal knowledge.[108]
II
The real identity of the assailant and the whereabouts of the appellant at the time of the commission

A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in The defense would want us to believe that it was Julito who defiled AAA, and that appellant was
the absence of any of the following circumstances: (a) through force, threat or intimidation; elsewhere when the crime was committed.[109]
(b) when the offended party is deprived of reason or otherwise unconscious; or (c) by means of
fraudulent machination or grave abuse of authority.[102] We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a good look at
That the crime of rape has been committed is certain. The vivid narration of the acts culminating in him during the commission of the crime.[110] AAA had known appellant all her life. Moreover,
the insertion of appellant's organ into the vagina of five-year-old AAA and the medical findings of appellant and AAA even walked together from the road near the store to the situs criminus[111] that it
the physicians sufficiently proved such fact. would be impossible for the child not to recognize the man who held her hand and led her all the
way to the rice field.
AAA testified:
We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
PROS. OMANDAM:
xxxx The certainty of the child, unusually intelligent for one so young, that it was accused, whom she
Q You said Hermie laid you on the ground, removed your panty and boxed you, what else did he called "kuya" and who used to play basketball and fetch water near their house, and who was
do to you? wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive. The
A He mounted me. defense attempted to impute the crime to someone else - one Julito Apiki, but the child, on rebuttal,
Q When Hermie mounted you, was he facing you? was steadfast and did not equivocate, asserting that it was accused who is younger, and not Julito,
A Yes. who is older, who molested her.[112]
Q When he mounted you what did he do, did he move?
A He moved his ass, he made a push and pull movement. In a long line of cases, this Court has consistently ruled that the determination by the trial court of
Q When he made a push and pull movement, how were your legs positioned? the credibility of the witnesses deserves full weight and respect considering that it has "the
A They were apart. opportunity to observe the witnesses' manner of testifying, their furtive glances, calmness, sighs
Q Who pushed them apart? and the scant or full realization of their oath,"[113] unless it is shown that material facts and
A Hermie. circumstances have been "ignored, overlooked, misconstrued, or misinterpreted."[114]
Q Did Hermie push anything at you?
A Yes. Further, as correctly observed by the trial court:
Q What was that?
A His penis. xxx His and his witness' attempt to throw the court off the track by imputing the crime to someone
Q Where did he push his penis? else is xxx a vain exercise in view of the private complainant's positive identification of accused and
A To my vagina. other corroborative circumstances. Accused also admitted that on the same evening, Julito Apiki,
Q Was it painful? the supposed real culprit, asked him "What is this incident, Pare?", thus corroborating the latter's
A Yes. testimony that he confronted accused after hearing of the incident from the child."[115]
Q What was painful?

On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial
and alibi weak despite the presentation of witnesses to corroborate his testimony. Glaring
inconsistencies were all over their respective testimonies that even destroyed the credibility of the
appellant's very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay;
that he gave the bottle to his uncle; and that they had already been drinking long before he bought
Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-
examination, she revealed that her husband was not around before, during, and after the rape
incident because he was then at work.[116] He arrived from work only after FFF came to their house
for the second time and boxed appellant.[117] It was actually the fish vendor, not her husband, who
asked appellant to buy Tanduay.[118] Further, the drinking session started only after the appellant's
errand to the store.[119]
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to
Gloria's statement that her husband was at work.
Luzvilla's testimony is likewise inconsistent with that of sur-rebuttal witness Antonia
Perocho. Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla's claim that
Julito wore a white shirt on his way to the house of Rita. In addition, while both the prosecution, as
testified to by AAA and Julito, and the defense, as testified to by Gloria, were consistent in saying
that appellant wore a sleeveless shirt, Luzvilla's recollection differ in that Julito wore a T-shirt
(colored black and later changed to white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvilla's story that she saw AAA walking towards Rita's house three (3) minutes
after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the
house of Rita at 7:30. In this respect, we find the trial court's appreciation in order. Thus:
xxx. The child declared that after being raped, she went straight home, crying, to tell her father that
Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among strangers
who were watching TV, as Luzvilla Balucan would have the court believe. When the child was seen
at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after she had been
brought there by her mother Brenda so that Lita Lingkay could take a look at her ? just as Julito
Apiki said.[120]
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having
been offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses
cannot qualify as such, "they being related or were one way or another linked to each other." [121]
Even assuming for the sake of argument that we consider the corroborations on his whereabouts,
still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically
impossible for the accused to have been at the locus criminis at the time of the commission of the
crime.[122]
Physical impossibility refers to distance and the facility of access between the situs criminisand the
location of the accused when the crime was committed. He must demonstrate that he was so far
away and could not have been physically present at the scene of the crime and its immediate vicinity
when the crime was committed.[123]
In People v. Paraiso,[124] the distance of two thousand meters from the place of the commission of the
crime was considered not physically impossible to reach in less than an hour even by
foot.[125] Inasmuch as it would take the accused not more than five minutes to rape the victim, this
Court disregarded the testimony of the defense witness attesting that the accused was fast asleep
when she left to gather bamboo trees and returned several hours after. She could have merely
presumed that the accused slept all throughout.[126]
In People v. Antivola,[127] the testimonies of relatives and friends corroborating that of the appellant
that he was in their company at the time of the commission of the crime were likewise disregarded
by this Court in the following manner:
Ruben Nicolas, the appellant's part-time employer, and Marites Capalad, the appellant's sister-in-
law and co-worker, in unison, vouched for the appellant's physical presence in the fishpond at the
time Rachel was raped. It is, however, an established fact that the appellant's house where the
rape occurred, was a stone's throw away from the fishpond. Their claim that the appellant
never left their sight the entire afternoon of December 4, 1997 is unacceptable. It was
impossible for Marites to have kept an eye on the appellant for almost four hours, since she testified
that she, too, was very much occupied with her task of counting and recording the fishes being
harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not
have focused his entire attention solely on the appellant. It is, therefore, not farfetched that the
appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her
inside his house and ravished her, then returned to the fishpond as if he never
left.[128] (Emphasis supplied.)
As in the cases above cited, the claim of the defense witnesses that appellant never left their sight,
save from the 5-minute errand to the store, is contrary to ordinary human experience. Moreover,
considering that the farmland where the crime was committed is just behind the house of the
Perochos, it would take appellant only a few minutes to bring AAA from the road near the store next
to the Perochos down the farmland and consummate the crime. As correctly pointed out by the
Court of Appeals, appellant could have committed the rape after buying the bottle of Tanduay and
immediately returned to his uncle's house.[129] Unfortunately, the testimonies of his corroborating
witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the
crime.[130]
Clearly, the defense failed to prove that it was physically impossible for appellant to have been at
the time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the guilt of the appellant
beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered Republic
Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three (3)
years before it was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v. Sarcia:[131]
[Sec. 68 of Republic Act No. 9344][132] allows the retroactive application of the Act to those who have
been convicted and are serving sentence at the time of the effectivity of this said Act, and who were
below the age of 18 years at the time of the commission of the offense. With more reason, the Act
should apply to this case wherein the conviction by the lower court is still under
review.[133] (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18)
years of age from criminal liability, unless the child is found to have acted with discernment, in
which case, "the appropriate proceedings" in accordance with the Act shall be observed. [134]
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful
act.[135] Such capacity may be known and should be determined by taking into consideration all the
facts and circumstances afforded by the records in each case.[136]
xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and
that it was wrong.[137] Such circumstance includes the gruesome nature of the crime and the minor's
cunning and shrewdness.[138]
In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark
place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her
defense" are indicative of then seventeen (17) year-old appellant's mental capacity to fully
understand the consequences of his unlawful action.[139]
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA[140] shows that she was born on 3 December 1997. Considering that she
was only five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the
death penalty when rape is committed against a child below seven (7) years old[141] applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346; [142] and (2) the
privileged mitigating circumstance of minority of the appellant, which has the effect of reducing the
penalty one degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal
Code.[143]
Relying on People v. Bon,[144] the Court of Appeals excluded death from the graduation of penalties
provided in Article 71 of the Revised Penal Code.[145] Consequently, in its appreciation of the
privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree
from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years
and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four
(4) months of reclusion temporal, in its medium period, as maximum.[146]
We differ.
In a more recent case,[147] the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de
Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper penalty because of the privileged
mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned
with. Thus, the proper imposable penalty for the accused-appellant is reclusion
perpetua.[148] (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime
committed, which would have warranted the imposition of the death penalty, regardless of whether
the penalty actually imposed is reduced to reclusion perpetua.[149]
Likewise, the fact that the offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her family.[150] The respective
awards of civil indemnity and moral damages in the amount of P75,000.00 each are, therefore,
proper.[151]
Accordingly, despite the presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of
Appeals in the amount of P75,000.00 as civil indemnity and P75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,[152] the amount of exemplary damages should be increased
from P25,000.00 to P30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period of
Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of conviction
is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age
at the time of the commission of the offense is found guilty of the offense charged, the court shall
determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in
conflict with the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already eighteen (18)
years of age or more at the time of the pronouncement of his/her guilt. (Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,[153] which was promulgated on 18 August 2006, the Court of
Appeals held that, consistent with Article 192 of Presidential Decree No. 603, as amended, [154] the
aforestated provision does not apply to one who has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment.[155]
Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia,[156] overturning
the ruling in Gubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme Court
(SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict with
the law if, among others, he/she has been convicted of an offense punishable by death, reclusion
perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the
basic principle of statutory construction that when the law does not distinguish, we should not
distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been convicted of a
capital offense and another who has been convicted of a lesser offense, the Court should also not
distinguish and should apply the automatic suspension of sentence to a child in conflict with the law
who has been found guilty of a heinous crime.[157]
The legislative intent reflected in the Senate deliberations[158] on Senate Bill No. 1402 (Juvenile
Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this Court
to cover heinous crimes in the application of the provision on the automatic suspension of sentence
of a child in conflict with the law. The pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have
committed a serious offense, and may have acted with discernment, then the child could be
recommended by the Department of Social Welfare and Development (DSWD), by the Local Council
for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago's] proposed Office of
Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests,
and restoration of the child should still be a primordial or primary consideration. Even in heinous
crimes, the intention should still be the child's restoration, rehabilitation and reintegration. xxx (Italics
supplied in Sarcia.)[159]

On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict with
the Law, which reflected the same position.[160]

These developments notwithstanding, we find that the benefits of a suspended sentence can no
longer apply to appellant. The suspension of sentence lasts only until the child in conflict with the
law reaches the maximum age of twenty-one (21) years.[161] Section 40[162] of the law and Section
48[163] of the Rule are clear on the matter. Unfortunately, appellant is now twenty-five (25) years
old.

Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of
a child in conflict with the law should extend even to one who has exceeded the age limit of twenty-
one (21) years, so long as he/she committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and reintegration in accordance with the
Act in order that he/she is given the chance to live a normal life and become a productive member
of the community. The age of the child in conflict with the law at the time of the promulgation of the
judgment of conviction is not material. What matters is that the offender committed the offense
when he/she was still of tender age.

Thus, appellant may be confined in an agricultural camp or any other training facility in accordance
with Sec. 51 of Republic Act No. 9344.[164]

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. - A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

Following the pronouncement in Sarcia,[165] the case shall be remanded to the court of origin to
effect appellant's confinement in an agricultrual camp or other training facility.

WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No.
00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape
is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant
is reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. The case is
hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51 of
Republic Act No. 9344.

SO ORDERED.

G.R. No. 200157, August 31, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOERY DELIOLA Y BARRIDO, A.K.A. "JAKE
DELIOLA," Accused-Appellant.
DECISION
PEREZ, J.:
On appeal is the 29 June 2011 Decision1 of the Court of Appeals in CA-G.R. CEB CR-HC NO. 00435,
affirming the 22 December 2005 Decision2 of the Regional Trial Court, Branch 69, Silay City, Negros
Occidental, in Criminal Case Nos. 5214-69 and 5215-69, which found accused-appellant Joery
Deliola y Barrido guilty beyond reasonable doubt of two (2) counts of Statutory Rape, and
sentencing him to suffer the penalty of reclusion perpetua in both cases.
Accused-appellant was charged with two (2) counts of Statutory Rape. The accusatory portions of
the Informations narrate:ChanRoblesVirtualawlibrary
Criminal Case No. 5214-69
That sometime in the month of June, 2002, in the Municipality of Manapla, Province of Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, 15 years old, with the use of a bladed weapon, through force, threat and intimidation, with
the attendant qualifying aggravating circumstances of relationship and minority, the accused being
the uncle of herein victim who was less than eighteen (18) years of age, did then and there, willfully,
unlawfully and feloniously have carnal knowledge of one [MMM],3 a minor, 11 years old, against her
will, to the damage and prejudice.4chanrobleslaw
Criminal Case No. 5215-69
That on or about the 1st day of July, 2002, in the Municipality of Manapla, Province of Negros
Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, 15 years old, with the use of a bladed weapon, through force, threat and intimidation, with
the attendant qualifying aggravating circumstances of relationship and minority, the accused being
the uncle of herein victim who was less than eighteen (18) years of age, did then and there, willfully,
unlawfully and feloniously have carnal knowledge of one [MMM], a minor, 11 years old, against her
will, to the damage and prejudice.5chanroblesvirtuallawlibrary
On arraignment, accused-appellant entered a plea of NOT GUILTY.6 At the joint pre-trial7 of the
cases, the following stipulation of facts were admitted: (1) that the court has jurisdiction over the
case (2) the identity of accused-appellant as the accused in the two criminal cases; (3) that accused-
appellant is the uncle of MMM; (4) that MMM, was 11 years old when the incidents giving rise to the
present criminal actions were allegedly committed; (5) that at the time of the incidents on June and
1 July 2002, accused-appellant and MMM were neighbors; (6) that MMM was then a grade school
pupil; and (7) that accused-appellant was not attending school at the time of the submitted
incidents giving rise to these criminal actions. Trial on the merits ensued afterwards.
The Facts
The facts culled from the records and as summarized by the Court of Appeals, are as follows:
chanRoblesvirtualLawlibraryWhen the crime was committed, MMM was 11 years old, 8 while the
accused-appellant, MMM's uncle,9was 15 years old.10 The prosecution submits that sometime in the
first week of June 2002, at about three o'clock in the afternoon, MMM went to the nipa plantation to
defecate but before she was able to do so, accused-appellant, armed with a knife, suddenly
appeared. He approached MMM, poked a knife at her neck, ordered h bend over, and took off her
shorts and underwear. Fearing for her life, MMM obeyed the orders of accused-appellant. MMM
tried to resist but accused-appellant was still able to force his penis inside MMM's vaginal MMM felt
pain and cried. After satisfying his lust, accused-appellant put on his briefs and shorts then left.
When she got home, MMM immediately took a bath and noticed bloodstain on her underwear.
Afraid of accused-appellant's threats of killing her, MMM kept mum and did not disclose to anyone
the tragedy that happened to her that day.11chanrobleslaw
On or about the 1st day of July 2002, MMM was at the nipa plantation again when accused-appellant
suddenly arrived. He poked MMM's back with a knife and threatened to stab her unless she followed
accused appellant's orders. MMM was fearful and was left with no choice but to submit to accused-
appellant's commands. She was directed to bend over and to lower down her shorts and underwear.
While MMM was bending over and half naked, accused-appellant held the victim's waist and
inserted his penis into MMM's private part. MMM could not do anything but cry. Before leaving, he
again threatened to kill MMM if she would reveal happened between them. 12chanrobleslaw
MMM still remained silent about her ordeal. However, about two weeks after the second rape,
MMM's grandmother noticed that there was something unusual in the way MMM was walking. This
prompted her to confront MMM.13 Upon learning of what happened to MMM, the vie aunt, brought
the former to the Municipal Health Office of Manapla, Negros Occidental for examination, 14 and
thereafter to the police authorities, before whom the victim executed her sworn
statement.15chanrobleslaw
Dr. Edbert Jayme (Dr. Jayme), the Municipal Health Officer who conducted a physical and internal
examination upon MMM, testified as an expert witness for the prosecution. Dr. Jayme's internal
findings showed that the victim had positive hyperemia of the vulva or congestion, redness, and
swelling around the area, which may have been caused by a blunt object such as the finger of the
human being or an erect penis. The victim was also found to have a positive incomplete hymenal
laceration at 3:00 and 7:00 positions, which was similarly caused by a blunt object such as the finger
of the human being or an erect penis.16 According to Dr. Jayme, the lacerations may have been
inflicted within two weeks prior to the examination since the lacerations were fresh. 17 Dr. Jayme
also found that the victim's vagina could admit two (2) fingers with ease, which is unusual for an 11-
year old.18 A Medical Certificate19 dated 12 July 2002 was issued by the Municipal Health Center of
Manapla.
As lone witness for the defense, accused-appellant denied raping the victim and claimed that he was
fishing with his grandfather during the times MMM was raped.20 He testified that he is MMM's uncle
and that he was only fifteen years old when the alleged crime occurred.
Ruling of the Regional Trial Court
On 22 December 2005, the RTC rendered a Decision finding accused-appellant guilty of two counts
of Statutory Rape. The dispositive portion of the decision reads:ChanRoblesVirtualawlibrary
WHEREFORE, PREMISES CONSIDERED, in Criminal Cases Nos. 5214-69 and 5215-69, this Court
finds accused, JOERY DELIOLA Y BARRIDO, A.K.A. "JAKE DELIOLA", Guilty of the crimes of Rape, as
defined in Article 266-A in relation to Article 266-B, paragraph 5, sub-paragraph 1, of Republic Act
No. 8353, as his guilts had been established by the prosecution beyond any reasonable doubt.
Taking into consideration the privilege mitigating circumstance of minority, this Court, in Criminal
Case No. 5214-69, sentences accused, Joery Deliola y Barrido, a.k.a. Jake Deliola, to suffer the penalty
of Reclusion Perpetua, the same to be served by him at the National Penitentiary, Muntinlupa City,
Province of Rizal, Philippines. Accused, Joery Deliola y Barrido, a.k.a. Jake Deliola, is, further, ordered
by this Court to pay minor, [MMM], the sum of FIFTY THOUSAND PESOS (P50,000.00) as Moral
Damages, and the sum of FIFTY THOUSAND PESOS (P50,000.00), all in Philippine Currency, as
Exemplary Damages.

In Criminal Case No. 5215-69, this Court likewise sentences accused, Joery Deliola y Barrido, a.k.a.
Jake Deliola, to suffer the penalty of Reclusion Perpetua, the same to be served by him at the
National Penitentiary, Muntinlupa City, Province of Rizal, Philippines. Accused, Joery Deliola y
Barrido, a.k.a. Jake Deliola, is, likewise, ordered by this Court to pay minor, [MMM], the sum of FIFTY
THOUSAND PESOS (P50,000.00) as Moral Damages, and the sum of FIFTY THOUSAND PESOS
(P50,000.00), all in Philippine Currency, as Exemplary Damages.
Accused, Joery Deliola y Barrido, a.k.a. Jake Deliola, is remanded to the custody of the Jail Warden of
the Provincial Jail of Negros Occidental, until he is finally committed to the National Penitentiary at
Muntinlupa City, Rizal.
In the service of the sentences imposed on him by this Court, accused named shall be given full
credit for the entire period of his detention pending trial.21chanroblesvirtuallawlibrary
Ruling of the Court of Appeals
The Court of Appeals, in its assailed Decision dated 29 June 2011, affirmed the judgment of
conviction of the RTC. The dispositive portion of the decision reads:ChanRoblesVirtualawlibrary
WHEREFORE, the appealed decision insofar as the finding of guilt beyond reasonable doubt of
accused-appellant Joery B. Deliola of the two crimes of rape in Criminal Cases No. 5214-69 and
5215-69 is AFFIRMED. However, as accused-appellant Joery Deliola y Barrido is a child in conflict
with the law, the pronouncement of his sentence is hereby SUSPENDED and the case is REMANDED
to the Regional Trial Court, 6th Judicial Region, Branch 69, Silay City, Negros Occidental, for
appropriate disposition in accordance with Section 38 of Republic Act No. 9344. Accused-appellant
is CONDEMNED to pay the victim MMM: 1) In Criminal Case No. 5214-69, the amounts of
P75,000.00 as civil indemnity, P75,000.00 for moral damages, and P30,000.00 for exemplary
damages; and 2) In Criminal Case No. 5215-69, the amounts of P75,000.00 as civil indemnity,
P75,000 for moral damages and P30,000.00 for exemplary damages.22chanroblesvirtuallawlibrary
Accused-appellant timely filed a Notice of Appeal. In a Resolution23 dated 27 February 2012, we
required the parties to submit their respective supplemental briefs. However, both parties
manifested24 that they dispensing with the filing of supplemental briefs and, instead, adopting
respective briefs as supplemental briefs in this case.
Our Ruling
We find no reason to deviate from the findings and conclusions of the trial court, as affirmed by the
Court of Appeals. His defenses of denial and alibi are bereft of merit.
Statutory Rape
Articles 266-A and 266-B of the Revised Penal Code, as amended by Republic Act (R.A.) No.
8353,25cralawreddefine and punish Statutory Rape as follows:ChanRoblesVirtualawlibrary
Art. 266-A. Rape, When and How Committed.- Rape is committed-
1) by a man who shall have carnal knowledge of a woman x x x:
chanRoblesvirtualLawlibraryx x x x
d) when the offended party is under twelve (12) years of age or is demented, even though none of
the circumstances mentioned above be present.
Art. 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:
chanRoblesvirtualLawlibrary1) When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the parent of the victim;
xxxx
Statutory rape is committed when the prosecution proves that: (1) the offended party is under 12
years of age and (2) the accused had carnal knowledge of the victim, regardless of whether there
was force, threat or intimidation; whether the offended party was deprived of reason or
consciousness; or whether it was done through fraudulent machination or grave abuse of authority.
It is enough that the age of the victim is proven: and that there was sexual
intercourse.26chanrobleslaw
The two elements were proven in the present case. The age of MMM was uncontested. In her Birth
Certificate,27 presented and admitted in open court,28 it was indicated that she was born on 5 March
1991 and, thus, only eleven years old when the crime was committed. The only controversy left
before us is whether or not accused-appellant had carnal knowledge of the victim.
Credibility of Witness
Accused-appellant tried to dispute MMM's credibility by pointing out several inconsistencies in her
testimony. He argued that the victim testified that on the alleged second incident of rape, on 1 July
2002, she felt no and her vagina did not bleed. Accused-appellant maintains that such statement is
inconsistent with MMM's grandmother's claim that MMM was walking with great difficulty and pain.
Accused-appellant likewise argues that given the tender age of the victim, she could have felt pain, if
not suffered bleeding, even on the second incident of rape.
We disagree. It is carnal knowledge, not pain nor bleeding, which is essential to consummate
rape.29 It is also possible for physiological manifestations of rape, such as pain, to appear only after
the incident, more importantly, the testimony of MMM's grandmother was just an observation on
the victim's manner of walking. It is baseless and unreasonable to put the victim's and the
grandmother's testimonies side by side and claim them to be inconsistent. Moreover, as consistently
held by this Court, discrepancies and inconsistencies in the testimony of a witness referring to
minor details and not in actuality touching upon the central fact of the crime, do not impair her
credibility. If at all, they serve as proof that the witness is not coached or rehearsed.30chanrobleslaw
Accused-appellant also points out that Dr. Jayme's findings are not conclusive and that the non-
intact hymen of the victim could be congenital.
This argument is bereft of merit. The prime consideration in the prosecution of rape is the victim's
testimony, not necessarily the medical findings. Assuming arguendo that the non-intact hymen of
the victim is congenital, this Court has consistently held that the absence of laceration in the hymen
does not negate rape.31 Apart from the findings of Dr. Jayme, MMM was steadfast in testifying that
accused-appellant raped her twice. When a rape victim's testimony is straightforward and
consistent despite grueling examination, it deserves full faith and confidence. 32 The victim's
testimony alone, if credible, is sufficient to convict. 33chanrobleslaw
Accused-appellant likewise argues that the victim's claim that she was penetrated from behind is
contrary to human experience. We are not persuaded. As correctly cited by the Court of Appeals, the
animal in man may come out when he commits rape such that it is not unlikely that in the process of
his immersion and transformation into another character, he would prefer to mate in the way lower
creatures do.34chanrobleslaw
Accused-appellant further questions the fact that the victim did not attempt to escape from her
captor or even shout or call for help, and that she did not report the alleged rape to anyone after its
occurrence. However, as held in the case of People v. Rosales:35
At any rate, it is an oft-repeated principle that not every witness to or victim of a crime can be
expected to act reasonably and conformably to the usual expectations of everyone. People may react
differently to the same situation. One person's spontaneous, or unthinking or even instinctive,
response to a horrible and repulsive stimulus may be aggression, while another's may be cold
indifference. Yet, it can never be successfully argued that the latter are any less sexual victims than
the former.36chanroblesvirtuallawlibrary
Given the nature of the crime of rape, the credible, natural, and convincing testimony of the victim
alone may be sufficient to convict the accused, more so, when the testimony is supported by the
medico-legal findings of the examining physician.37chanrobleslaw
MMM's testimony, positively identifying accused-appellant as the person who raped her is
believable. We uphold the ruling of the trial court on the credibility of MMM and the truthfulness of
her testimonies, to wit:ChanRoblesVirtualawlibrary
[MMM], though a minor, thirteen (13) years old at the time she took the stand, demonstrated to this
Court her capacity of observation, recollection, and communication. She showed that she can
perceive, and perceiving, can make known her perception to this Court as she clearly and capably
related the details of her sad and horrible experiences at the hands of the accused. She withstood a
thorough and exhaustive examination. There is no doubt that she is a competent witness. (Republic
vs. Court of Appeals, 349 SCRA 451, G.R. No. 116372 January 18, 2001; People vs. Rama, 350 SCRA
266, G.R. No. 136304, January 25, 2001). [MMM] gave a clear, straightforward, spontaneous, frank
and consistent narrative. It was a positive and credible account she presented before this Court.
There was not a motive ascribed or, in the very least, suggested by the defense that might have
raised doubt on her credibility and on the credibility of the statements she made before this
Court.38chanroblesvirtuallawlibrary
We find no reason to disturb the trial court's appreciation of MMM's testimony. Deeply entrenched
in our jurisprudence is the rule that the assessment of the credibility of witnesses is a domain best
left to the trial court judge because of his unique opportunity to observe their deportment and
demeanor on the witness stand, a vantage point denied appellate courts; and when his findings have
been affirmed by the Court of Appeals, these are generally binding and conclusive upon this
Court.39chanrobleslaw
Furthermore, testimonies of child victims are given full weight and credit, for when a woman or a
girl-child says that she has been raped, she says in effect all that is necessary to show that rape was
indeed committed. Youth and immaturity are generally badges of truth and sincerity.40 No young
woman would admit that she was raped, make public the offense and allow the examination of her
private parts, undergo the troubles and humiliation of a public trial and endure the ordeal of
testifying to all the gory details, if she had not in fact been raped.41chanrobleslaw
Denial and Alibi as Inherently Weak Defenses
In contrast to MMM's direct, positive and categorical testimony identification of her assailant,
accused-appellant's bare denial and alibi could not prevail. This Court has consistently held that:
"denial is an intrinsically weak defense which must be supported by strong evidence of non-
culpability to merit credibility. No jurisprudence in criminal law is more settled than that alibi is the
weakest of all defenses, for it is easy to contrive and difficult to disprove and for which reason it is
generally rejected. For the alibi to prosper, it is imperative that the accused establishes two
elements: (1) he was not at the locus delictiat the time the offense was committed; and (2) it was
physically impossible for him to be at the scene at the time of its commission. 42" Accused-appellant
failed to establish these elements. His claim that at the time of the alleged crime, he was at sea
fishing with his grandfather was uncorroborated. For some reason, he did not even present his
grandfather Clemente Gabayeron to testify in court. As. opposed to MMM's convincing recital of
facts, accused-appellant's denial and alibi will not stand.
Time of commission not an essential element to establish rape
Lastly, accused-appellant argues that the Information43 stating that the first crime of rape was
committed "sometime in the month of June 2002" is not sufficiently explicit and certain as to inform
him of the date on which the criminal act was alleged to have been committed.
Accused-appellant is mistaken. This Court has repeatedly held that it is not incumbent upon the
victim to establish the date when she was raped for purposes of convicting the perpetrator. 44 The
date of commission is not an essential element of the crime of rape; what is material is its
occurrence. Thus, there is no need to prove the exact date of commission; an approximation thereof
will suffice.45chanrobleslaw
Moreover, the Court of Appeals correctly ruled that accused-appellant's belated objection to the
Information cannot prosper, to wit:ChanRoblesVirtualawlibrary
Moreover, accused-appellant's counsel took active part in the trial by cross-examining the
prosecution witnesses on the particular dates and circumstances of the two offenses of rape as
alleged in the informations without prior objection to the validity or propriety of the informations. It
is now too late in the day for the accused-appellant to claim that any of the Informations was
defective. Objections relating to the form of the complaint or information cannot be made for the
first time on appeal. If the appellant had found the Information insufficient, he should have moved
before arraignment either for a bill of particulars, for him to be properly informed of the exact date
of the alleged rape, or for the quashal of the Information, on the ground that it did not conform with
the prescribed form.46chanroblesvirtuallawlibrary
Penalty and Damages
To determine the appropriate penalty, we refer to the pertinent law on the matter. According to R.A.
No. 9344,47 as amended:48
SEC. 6. Minimum Age of Criminal Responsibility. — x x x
A child is deemed to be fifteen (15) years of age on the day of the fifteenth anniversary of his/her
birthdate.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.
The exemption from criminal liability herein established does not include exemption from civil
liability, which shall be enforced in accordance with existing laws.
To reiterate, the law says that a minor is fifteen (15) years of age on the day of the fifteenth
anniversary of his/her birth date. In A.M. No. 02-1-18-SC49 dated November 24, 2009, the Supreme
Court likewise defined the: age of criminal responsibility as the age when a child, fifteen (15) years
and; one, (1) day old or above but below eighteen (18) years of age, commits an offense with
discernment.
Accused-appellant testified that he was born on 14 April 1987,50 making him 15 years and 2 months
old when the crime was committed. We are now left with the question of whether or not accused-
appellant acted with discernment. In People v. Jacinto,51 we explained that discernment is the mental
capacity of a minor to fully grasp the consequences of his act, known and determined by taking into
account all the facts and circumstances presented by the records in each case.
That the accused-appellant acted with discernment when he raped the victim is demonstrated by
the following surrounding circumstances: (1) the victim was a helpless minor; (2) accused-appellant
secured the consummation of the offense with a weapon; (3) he satisfied his lust by penetrating the
victim from behind; and (4) he threatened the victim not to report what happened. Taking all these
facts into consideration, accused-appellant clearly knew that what he did was wrong.
Considering that the qualifying circumstances of minority and relationship were alleged and proven
during trial,52 accused-appellant shall be criminally liable for the crime of Qualified Statutory Rape.
However, given that accused-appellant was only 15 years old and 2 months when the crime was
committed, the privileged mitigating circumstance of minority should be appreciated; thus, the
penalty next lower in degree than that prescribed by law shall be imposed. 53 In accordance with the
controlling jurisprudence on the matter,54 for purposes of determining the proper penalty because
of the privileged mitigating circumstance of minority, the penalty of death is still the penalty to be
reckoned with. Thus, we affirm the ruling of the lower courts and impose upon accused-appellant
the penalty of reclusion perpetua.

Although it is acknowledged that accused-appellant was qualified for suspension of sentence when
he committed the crime, Section 40 of R.A. 934455 provides that the same extends only until the
child in conflict with the law reaches the maximum age of twenty-one (21) years old. Nevertheless,
in extending the application of RA No. 9344 to give meaning to the legislative intent of the said law,
we ruled in People v. Jacinto,56 as cited in People v. Ancajas,57 that the promotion of the welfare of a
child in conflict with the law should extend even to one who has exceeded the age lirr it of twenty-
one (21) years, so long as he/she committed the crime when he/she was still a child. The offender
shall be entitled to the right to restoration, rehabilitation and reintegration in order that he/she
may be given the chance to live a normal life and become a productive member of the
community.58 Thus, accused-appellant is ordered to serve his sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other training facilities, in accordance with
Section 5159 of R.A. 9344.

Pursuant to prevailing jurisprudence,60 we modify the award of damages of the lower courts.
Accused-appellant is hereby ordered to indemnify MMM, the amounts of P75,000.00 as civil
indemnity for each count of rape, P75,000.00 as moral damages for each count of rape, and
P75,000.00 as exemplary damages for each count of rape. The damages awarded shall earn interest
at the legal rate of six percent (6%) per annum from the date of finality of this judgment until fully
paid.61chanrobleslaw

WHEREFORE, the 29 June 2011 Decision of the Court of Appeals in CA-G.R. CEB CR-HC NO. 00435
is AFFIRMED with MODIFICATION. Appellant JOERY DELIOLA Y BARRIDO, A.K.A. "JAKE DELIOLA,"
is found GUILTY beyond reasonable doubt of two (2) counts of Qualified Statutory Rape and is
sentenced to suffer the penalty of reclusion perpetua for each count of rape. Appellant
is ORDERED to indemnify MMM the amounts of P75,000.00 as civil indemnity for each count of
rape, P75,000.00 as exemplary damages for each count of rape. All monetary awards for damages
shall earn interest at the legal rate of six percent (6%) per annum from the date of finality of this
judgment until fully paid.

The case is hereby REMANDED to the Regional Trial Court, Silay City, Branch 69 for its appropriate
action in accordance with Section 51 of Republic Act No. 9344.

SO ORDERED.chanRoblesvirtualLawlibrary
 [G.R. NO. 182941 : July 3, 2009]
ROBERT SIERRA y CANEDA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
Before us is the petition of Robert Sierra y Caneda (Petitioner) for the review on certiorari 1 of the
Decision2 and Resolution3 of the Court of Appeals4 (CA) that affirmed with modification his
conviction for the crime of qualified rape rendered by the Regional Trial Court (RTC), Branch 159,
Pasig City, in its decision of April 5, 2006.
THE ANTECEDENT FACTS
In August 2000, thirteen-year-old AAA5 was playing with her friend BBB in the second floor of her
family's house in Palatiw, Pasig. The petitioner arrived holding a knife and told AAA and BBB that he
wanted to play with them. The petitioner then undressed BBB and had sexual intercourse with her.
Afterwards, he turned to AAA, undressed her, and also had sexual intercourse with her by inserting
his male organ into hers. The petitioner warned AAA not to tell anybody of what they did.
AAA subsequently disclosed the incident to Elena Gallano (her teacher) and to Dolores Mangantula
(the parent of a classmate), who both accompanied AAA to the barangay office. AAA was later
subjected to physical examination that revealed a laceration on her hymen consistent with her claim
of sexual abuse. On the basis of the complaint and the physical findings, the petitioner was charged
with rape under the following Information:
On or about August 5, 2000, in Pasig City and within the jurisdiction of this Honorable Court, the
accused, a minor, 15 years old, with lewd designs and by means of force, violence and intimidation,
did then and there willfully, unlawfully and feloniously have sexual intercourse with his (accused)
sister, AAA, thirteen years of age, against the latter's will and consent.
Contrary to law.6
The petitioner pleaded not guilty to the charge and raised the defenses of denial and alibi. He
claimed that he was selling cigarettes at the time of the alleged rape. He also claimed that AAA only
invented her story because she bore him a grudge for the beatings he gave her. The parties' mother
(CCC) supported the petitioner's story; she also stated that AAA was a troublemaker. Both CCC and
son testified that the petitioner was fifteen (15) years old when the alleged incident happened. 7
The defense also presented BBB who denied that the petitioner raped her; she confirmed the
petitioner's claim that AAA bore her brother a grudge.
On April 5, 2006, the RTC convicted the petitioner of qualified rape as follows:
WHEREFORE, in view of the foregoing, this Court finds the accused ROBERT SIERRA y CANEDA
GUILTY beyond reasonable doubt of the crime of rape (Violation of R.A. 8353 in relation to SC A.M.
99-1-13) and hereby sentences the said juvenile in conflict with law to suffer the penalty of
imprisonment of reclusion perpetua; and to indemnify the victim the amount of P75,000 as civil
indemnity, P50,000 as moral damages, and P25,000 as exemplary damages.
SO ORDERED.8
The petitioner elevated this RTC decision to the CA by attacking AAA's credibility. He also invoked
paragraph 1, Section 6 of R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006)9 to exempt him
from criminal liability considering that he was only 15 years old at the time the crime was
committed.
The CA nevertheless affirmed the petitioner's conviction with modification as to penalty as follows:
WHEREFORE, finding that the trial court did not err in convicting Robert Sierra, the assailed
Decision is hereby AFFIRMED with MODIFICATION that Robert Sierra has to suffer the penalty of
imprisonment of RECLUSION TEMPORAL MAXIMUM. The award of damages are likewise affirmed.
SO ORDERED.10
In ruling that the petitioner was not exempt from criminal liability, the CA held:
As to the penalty, We agree with the Office of the Solicitor General that Robert is not exempt from
liability. First, it was not clearly established and proved by the defense that Robert was 15 years old
or below at the time of the commission of the crime. It was incumbent for the defense to present
Robert's birth certificate if it was to invoke Section 64 of Republic Act No. 9344. Neither is the
suspension of sentence available to Robert as the Supreme Court, in one case, clarified that:
We note that, in the meantime, Rep. Act No. 9344 took effect on May 20, 2006. Section 38 of the law
reads:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age
at the time of the commission of the offense is found guilty of the offense charged, the court shall
determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in
conflict with the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years
of age or more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court on Juveniles in
Conflict with the Law.
The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that the
suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or more
at the time of the pronouncement of his/her guilt. The other disqualifications in Article 192 of P.D.
No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 38
of Republic Act No. 9344. Evidently, the intention of Congress was to maintain the other
disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No.
02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which
is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified
from having their sentences suspended.11
The CA denied the petitioner's subsequent motion for reconsideration; hence, the present petition.
THE ISSUES
The petitioner no longer assails the prosecution's evidence on his guilt of the crime charged; what
he now assails is the failure of the CA to apply paragraph 1, Section 612 of R.A. No. 9344 under the
following issues:
(1) Whether or not the CA erred in not applying the provisions of R.A. No. 9344 on the petitioner's
exemption from criminal liability;
(2) Whether or not the CA erred in ruling that it was incumbent for the defense to present the
petitioner's birth certificate to invoke Section 64 of R.A. No. 9344 when the burden of proving his
age lies with the prosecution by express provisions of R.A. No. 9344; andcralawlibrary
(3) Whether or not the CA erred in applying the ruling in Declarador v. Hon. Gubaton 13 thereby
denying the petitioner the benefit of exemption from criminal liability under R.A. No. 9344.
The threshold issue in this case is the determination of who bears the burden of proof for purposes
of determining exemption from criminal liability based on the age of the petitioner at the time the
crime was committed.
The petitioner posits that the burden of proof should be on the prosecution as the party who stands
to lose the case if no evidence is presented to show that the petitioner was not a 15-year old minor
entitled to the exempting benefit provided under Section 6 of R.A. No. 9344.14 He additionally claims
that Sections 3,15 7,16 and 6817 of the law also provide a presumption of minority in favor of a child in
conflict with the law, so that any doubt regarding his age should be resolved in his favor.
The petitioner further submits that the undisputed facts and evidence on record - specifically: the
allegation of the Information, the testimonies of the petitioner and CCC that the prosecution never
objected to, and the findings of the RTC - established that he was not more than 15 years old at the
time of the commission of the crime.
The People's Comment, through the Office of the Solicitor General (OSG), counters that the burden
belongs to the petitioner who should have presented his birth certificate or other documentary
evidence proving that his age was 15 years or below. The OSG also stressed that while petitioner is
presumed to be a minor, he is disqualified to have his sentence suspended following the ruling in
Declarador v. Hon. Gubaton.18
THE COURT'S RULING
We grant the petition.
We examine at the outset the prosecution's evidence and the findings of the lower courts on the
petitioner's guilt, since the petition opens the whole case for review and the issues before us are
predicated on the petitioner's guilt of the crime charged. A determination of guilt is likewise
relevant under the terms of R.A. No. 9344 since its exempting effect is only on the criminal, not on
the civil, liability.
We see no compelling reason, after examination of the CA decision and the records of the case, to
deviate from the lower courts' findings of guilt. The records show that the prosecution established
all the elements of the crime charged through the credible testimony of AAA and the other
corroborating evidence; sexual intercourse did indeed take place as the information charged. 19 As
against AAA's testimony, the petitioner could only raise the defenses of denial and alibi - defenses
that, in a long line of cases, we have held to be inherently weak unless supported by clear and
convincing evidence; the petitioner failed to present this required evidentiary support.20 We have
held, too, that as negative defenses, denial and alibi cannot prevail over the credible and positive
testimony of the complainant.21 We sustain the lower courts on the issue of credibility, as we see no
compelling reason to doubt the validity of their conclusions in this regard.
While the defense, on appeal, raises a new ground - i.e., exemption from criminal liability under R.A.
No. 9344 - that implies an admission of guilt, this consideration in no way swayed the conclusion we
made above, as the defense is entitled to present all alternative defenses available to it, even
inconsistent ones. We note, too, that the defense's claim of exemption from liability was made for
the first time in its appeal to the CA. While this may initially imply an essential change of theory that
is usually disallowed on appeal for reasons of fairness, 22 no essential change is really involved as
the claim for exemption from liability is not incompatible with the evidence submitted below and
with the lower courts' conclusion that the petitioner is guilty of the crime charged. An exempting
circumstance, by its nature, admits that criminal and civil liabilities exist, but the accused is freed
from criminal liability; in other words, the accused committed a crime, but he cannot be held
criminally liable therefor because of an exemption granted by law. In admitting this type of defense
on appeal, we are not unmindful, too, that the appeal of a criminal case (even one made under Rule
45) opens the whole case for review, even on questions that the parties did not raise. 23 By mandate
of the Constitution, no less, we are bound to look into every circumstance and resolve every doubt
in favor of the accused.24 It is with these considerations in mind and in obedience to the direct and
more specific commands of R.A. No. 9344 on how the cases of children in conflict with the law
should be handled that we rule in this Rule 45 petition.
We find a review of the facts of the present case and of the applicable law on exemption from
liability compelling because of the patent errors the CA committed in these regards. Specifically, the
CA's findings of fact on the issues of age and minority, premised on the supposed absence of
evidence, are contradicted by the evidence on record; it also manifestly overlooked certain relevant
facts not disputed by the parties that, if properly considered, would justify a different conclusion. 25
In tackling the issues of age and minority, we stress at the outset that the ages of both the petitioner
and the complaining victim are material and are at issue. The age of the petitioner is critical for
purposes of his entitlement to exemption from criminal liability under R.A. No. 9344, while the age
of the latter is material in characterizing the crime committed and in considering the resulting civil
liability that R.A. No. 9344 does not remove.
Minority as an Exempting Circumstance
R.A. No. 9344 was enacted into law on April 28, 2006 and took effect on May 20, 2006. Its intent is to
promote and protect the rights of a child in conflict with the law or a child at risk by providing a
system that would ensure that children are dealt with in a manner appropriate to their well-being
through a variety of disposition measures such as care, guidance and supervision orders,
counseling, probation, foster care, education and vocational training programs and other
alternatives to institutional care.26More importantly in the context of this case, this law modifies as
well the minimum age limit of criminal irresponsibility for minor offenders; it changed what
paragraphs 2 and 3 of Article 12 of the Revised Penal Code (RPC), as amended, previously provided -
i.e., from "under nine years of age" and "above nine years of age and under fifteen" (who acted
without discernment) - to "fifteen years old or under" and "above fifteen but below 18" (who acted
without discernment) in determining exemption from criminal liability. In providing exemption, the
new law - as the old paragraphs 2 and 3, Article 12 of the RPC did - presumes that the minor
offenders completely lack the intelligence to distinguish right from wrong, so that their acts are
deemed involuntary ones for which they cannot be held accountable. 27 The current law also drew its
changes from the principle of restorative justice that it espouses; it considers the ages 9 to 15 years
as formative years and gives minors of these ages a chance to right their wrong through diversion
and intervention measures.28
In the present case, the petitioner claims total exemption from criminal liability because he was not (c) Any other pertinent documents such as but not limited to the child's school records, dental
more than 15 years old at the time the rape took place. The CA disbelieved this claim for the records, or travel papers.
petitioner's failure to present his birth certificate as required by Section 64 of R.A. No. 9344. 29The
CA also found him disqualified to avail of a suspension of sentence because the imposable penalty
(2) x x x
for the crime of rape is reclusion perpetuato death.

(3) When the above documents cannot be obtained or pending receipt of such documents, the law
Burden of Proof
enforcement officer shall exhaust other measures to determine age by:

Burden of proof, under Section 1, Rule 131 of the Rules on Evidence, refers to the duty of a party to
(a) Interviewing the child and obtaining information that indicate age (e.g. date of birthday, grade
present evidence on the facts in issue in order to establish his or her claim or defense. In a criminal
level in school);
case, the burden of proof to establish the guilt of the accused falls upon the prosecution which has
the duty to prove all the essential ingredients of the crime. The prosecution completes its case as
soon as it has presented the evidence it believes is sufficient to prove the required elements. At this (b) Interviewing persons who may have knowledge that indicate[s] age of the child (e.g. relatives,
point, the burden of evidence shifts to the defense to disprove what the prosecution has shown by neighbors, teachers, classmates);
evidence, or to prove by evidence the circumstances showing that the accused did not commit the
crime charged or cannot otherwise be held liable therefor. In the present case, the prosecution
(c) Evaluating the physical appearance (e.g. height, built) of the child; andcralawlibrary
completed its evidence and had done everything that the law requires it to do. The burden of
evidence has now shifted to the defense which now claims, by an affirmative defense, that the
accused, even if guilty, should be exempt from criminal liability because of his age when he (d) Obtaining other relevant evidence of age.
committed the crime. The defense, therefore, not the prosecution, has the burden of showing by
evidence that the petitioner was 15 years old or less when he committed the rape charged. 30
xxx

This conclusion can also be reached by considering that minority and age are not elements of the
crime of rape; the prosecution therefore has no duty to prove these circumstances. To impose the
burden of proof on the prosecution would make minority and age integral elements of the crime
when clearly they are not.31 If the prosecution has a burden related to age, this burden relates to
proof of the age of the victim as a circumstance that qualifies the crime of rape. 32
Testimonial Evidence is Competent Evidence
to Prove the Accused's Minority and Age
The CA seriously erred when it rejected testimonial evidence showing that the petitioner was only
15 years old at the time he committed the crime. Section 7 of R.A. No. 9344 expressly states how the
age of a child in conflict with the law may be determined:
SEC. 7. Determination of Age. - x x x The age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these
documents, age may be based on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor. [Emphasis supplied]
Rule 30-A of the Rules and Regulations Implementing R.A. No. 9344 provides the implementing
details of this provision by enumerating the measures that may be undertaken by a law
enforcement officer to ascertain the child's age:
(1) Obtain documents that show proof of the child's age, such as
(a) Child's birth certificate;
(b) Child's baptismal certificate;or
Section 7, R.A. No. 9344, while a relatively new law (having been passed only in 2006), does not
depart from the jurisprudence existing at that time on the evidence that may be admitted as
satisfactory proof of the accused's minority and age.
In the 1903 case of U.S. v. Bergantino,33 we accepted testimonial evidence to prove the minority and
age of the accused in the absence of any document or other satisfactory evidence showing the date
of birth. This was followed by U.S. v. Roxas34 where the defendant's statement about his age was
considered sufficient, even without corroborative evidence, to establish that he was a minor of 16
years at the time he committed the offense charged. Subsequently, in People v. Tismo, 35 the Court
appreciated the minority and age of the accused on the basis of his claim that he was 17 years old at
the time of the commission of the offense in the absence of any contradictory evidence or objection
on the part of the prosecution. Then, in People v. Villagracia, 36 we found the testimony of the
accused that he was less than 15 years old sufficient to establish his minority. We reiterated these
dicta in the cases of People v. Morial37 and David v. Court of Appeals,38 and ruled that the allegations
of minority and age by the accused will be accepted as facts upon the prosecution's failure to
disprove the claim by contrary evidence.
In these cases, we gave evidentiary weight to testimonial evidence on the accused's minority and
age upon the concurrence of the following conditions: (1) the absence of any other satisfactory
evidence such as the birth certificate, baptismal certificate, or similar documents that would prove
the date of birth of the accused; (2) the presence of testimony from accused and/or a relative on the
age and minority of the accused at the time of the complained incident without any objection on the
part of the prosecution; and (3) lack of any contrary evidence showing that the accused's and/or his
relatives' testimonies are untrue.
All these conditions are present in this case. First, the petitioner and CCC both testified regarding his
minority and age when the rape was committed.39 Second, the records before us show that these
pieces of testimonial evidence were never objected to by the prosecution. And lastly, the
prosecution did not present any contrary evidence to prove that the petitioner was above 15 years
old when the crime was committed.
We also stress that the last paragraph of Section 7 of R.A. No. 9344 provides that any doubt on the
age of the child must be resolved in his favor.40 Hence, any doubt in this case regarding the
petitioner's age at the time he committed the rape should be resolved in his favor. In other words,
the testimony that the petitioner as 15 years old when the crime took place should be read to mean
that he was not more than 15 years old as this is the more favorable reading that R.A. No. 9344
directs.
Given the express mandate of R.A. No. 9344, its implementing rules, and established jurisprudence
in accord with the latest statutory developments, the CA therefore cannot but be in error in not
appreciating and giving evidentiary value to the petitioner's and CCC's testimonies relating to the
former's age.
Retroactive Application of R.A. No. 9344
That the petitioner committed the rape before R.A. No. 9344 took effect and that he is no longer a
minor (he was already 20 years old when he took the stand) will not bar him from enjoying the
benefit of total exemption that Section 6 of R.A. No. 9344 grants. 41 As we explained in discussing
Sections 64 and 68 of R.A. No. 934442 in the recent case of Ortega v. People:43
Section 64 of the law categorically provides that cases of children 15 years old and below, at the
time of the commission of the crime, shall immediately be dismissed and the child shall be referred
to the appropriate local social welfare and development officers (LSWDO). What is controlling,
therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL's age at
the time of the promulgation of judgment but the CICL's age at the time of the commission of the
offense. In short, by virtue of R.A. No. 9344, the age of criminal irresponsibility has been raised from
9 to 15 years old. [Emphasis supplied]
The retroactive application of R.A. No. 9344 is also justified under Article 22 of the RPC, as amended,
which provides that penal laws are to be given retroactive effect insofar as they favor the accused
who is not found to be a habitual criminal. Nothing in the records of this case indicates that the
petitioner is a habitual criminal.
Civil Liability
The last paragraph of Section 6 of R.A. No. 9344 provides that the accused shall continue to be civilly
liable despite his exemption from criminal liability; hence, the petitioner is civilly liable to AAA
despite his exemption from criminal liability. The extent of his civil liability depends on the crime he
would have been liable for had he not been found to be exempt from criminal liability.
The RTC and CA found, based on item (1) of Article 266-B of the RPC, as amended, that the
petitioner is guilty of qualified rape because of his relationship with AAA within the second civil
degree of consanguinity and the latter's minority.44 Both courts accordingly imposed the civil
liability corresponding to qualified rape.
The relationship between the petitioner and AAA, as siblings, does not appear to be a disputed
matter. Their mother, CCC, declared in her testimony that AAA and the petitioner are her children.
The prosecution and the defense likewise stipulated in the proceedings below that the relationship
exists. We find, however, that AAA's minority, though alleged in the Information, had not been
sufficiently proven.45 People v. Pruna46laid down these guidelines in appreciating the age of the
complainant:
In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the
following guidelines in appreciating age, either as an element of the crime or as a qualifying
circumstance.
1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of
the family either by affinity or consanguinity who is qualified to testify on matters respecting
pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule
130 of the Rules on Evidence shall be sufficient under the following circumstances:
A. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is
less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less
than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is
less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's
mother or relatives concerning the victim's age, the complainant's testimony will suffice provided
that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The failure of
the accused to object to the testimonial evidence regarding age shall not be taken against him.
[Emphasis supplied]
The records fail to show any evidence proving the age of AAA. They do not likewise show that the
petitioner ever expressly and clearly admitted AAA's age at the time of the rape. Pursuant to Pruna,
neither can his failure to object to AAA's testimony be taken against him.
Thus, the required concurrence of circumstances that would upgrade the crime to qualified rape -
i.e., relationship within the third degree of consanguinity and minority of the victim - does not exist.
The crime for which the petitioner should have been found criminally liable should therefore only
be simple rape pursuant to par. 1, Article 266-A of the RPC, not qualified rape. The civil liability that
can be imposed on the petitioner follows the characterization of the crime and the attendant
circumstances.
Accordingly, we uphold the grant of moral damages of P50,000.00 but increase the awarded
exemplary damages P30,000.00, both pursuant to prevailing jurisprudence. 47 Moral damages are
automatically awarded to rape victims without the necessity of proof; the law assumes that the
victim suffered moral injuries entitling her to this award.48 Article 2230 of the Civil Code justifies the
award of exemplary damages because of the presence of the aggravating circumstances of
relationship between AAA and petitioner and dwelling.49 As discussed above, the relationship
(between the parties) is not disputed. We appreciate dwelling as an aggravating circumstance based
on AAA's testimony that the rape was committed in their house. 50 While dwelling as an aggravating
circumstance was not alleged in the Information, established jurisprudence holds that it may
nevertheless be appreciated as basis for the award of exemplary
damages.51 ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

We modify the awarded civil indemnity of P75,000.00 to P50,000.00, the latter being the civil
indemnity appropriate for simple rape52 on the finding that rape had been committed.53

In light of the above discussion and our conclusions, we see no need to discuss the petition's third
assignment of error.

WHEREFORE, premises considered, the instant petition is GRANTED. The Decision dated February
29, 2008 and Resolution dated May 22, 2008 of the Court of Appeals in CA-G.R.-CR.-H.C. No. 02218
are REVERSED and SET ASIDE.

Pursuant to Section 64 of R.A. No. 9344, Criminal Case No. 120292-H for rape filed against petitioner
Robert Sierra y Caneda is hereby DISMISSED. Petitioner is REFERRED to the appropriate local social
welfare and development officer who shall proceed in accordance with the provisions of R.A. No.
9344. Petitioner is ORDERED to pay the victim, AAA, P50,000.00 as civil indemnity, P50,000.00 as
moral damages, and P30,000.00 as exemplary damages.

Unless there are other valid causes for petitioner's continued detention, we hereby ORDER his
IMMEDIATE RELEASE under the above terms.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections in Muntinlupa City
for its immediate implementation. The Director of the Bureau of Corrections is directed to report to
this Court within five days from receipt of this Decision the action he has taken.

Let a copy of this Decision be likewise furnished the Juvenile Justice and Welfare Council.

SO ORDERED.
 [G.R. No. 186227 : July 20, 2011]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALLEN UDTOJAN MANTALABA,
ACCUSED-APPELLANT.
DECISION
PERALTA, J.:
For this Court's consideration is the Decision [1] dated July 31, 2008 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment [2] dated September 14, 2005, of
the Regional Trial Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No.
10251, finding appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of
Sections 5 and 11, Article II of Republic Act (RA) 9165.
The facts, as culled from the records, are the following:
The Task Force Regional Anti-Crime Emergency Response (RACER) in Butuan City received a report
from an informer that a certain Allen Mantalaba, who was seventeen (17) years old at the time, was
selling shabu at Purok 4, Barangay 3, Agao District, Butuan City. Thus, a buy-bust team was
organized, composed of PO1 Randy Pajo, PO1 Eric Simon and two (2) poseur-buyers who were
provided with two (2) pieces of P100 marked bills to be used in the purchase.
Around 7 o'clock in the evening of October 1, 2003, the team, armed with the marked money,
proceeded to Purok 4, Barangay 3, Agao District, Butuan City for the buy-bust operation. The two
poseur-buyers approached Allen who was sitting at a corner and said to be in the act of selling
shabu. PO1 Pajo saw the poseur-buyers and appellant talking to each other. Afterwards, the
appellant handed a sachet of shabu to one of the poseur-buyers and the latter gave the marked
money to the appellant. The poseur-buyers went back to the police officers and told them that the
transaction has been completed. Police officers Pajo and Simon rushed to the place and handcuffed
the appellant as he was leaving the place.
The police officers, still in the area of operation and in the presence of barangay officials Richard S.
Tandoy and Gresilda B. Tumala, searched the appellant and found a big sachet of shabu. PO1 Simon
also pointed to the barangay officials the marked money, two pieces of P100 bill, thrown by the
appellant on the ground.
After the operation, and in the presence of the same barangay officials, the police officers made an
inventory of the items recovered from the appellant which are: (1) one big sachet of shabu which
they marked as RMP-1-10-01-03; (2) one small sachet of shabu which they marked as RMP 2-10-01-
03; and (3) two (2) pieces of one hundred pesos marked money and a fifty peso (P50) bill.
Thereafter, a letter-request was prepared by Inspector Ferdinand B. Dacillo for the laboratory
examination of the two (2) sachets containing a crystalline substance, ultra-violet examination on
the person of the appellant as well as the two (2) pieces of one hundred pesos marked money. The
request was brought by PO1 Pajo and personally received by Police Inspector Virginia Sison-Gucor,
Forensic Chemical Officer of the Regional Crime Laboratory Office XII Butuan City, who immediately
conducted the examination. The laboratory examination revealed that the appellant tested positive
for the presence of bright orange ultra-violet fluorescent powder; and the crystalline substance
contained in two sachets, separately marked as RMP-1-10-01-03 and RMP-2-10-01-03, were
positively identified as methamphetamine hydrochloride.
Thereafter, two separate Informations were filed before the RTC of Butuan City against appellant for
violation of Sections 5 and 11 of RA 9165, stating the following:
Criminal Case No. 10250
That on or about the evening of October 1, 1003 at Purok 4, Barangay 3, Agao, Butuan City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without
authority of law, did then and there willfully, unlawfully, and feloniously sell zero point zero four
one two (0.0412) grams of methamphetamine hydrochloride, otherwise known as shabu which is a
dangerous drug.
CONTRARY TO LAW : (Violation of Sec. 5, Art. II of R.A. No. 9165). [3]
Criminal Case No. 10251
That on or about the evening of October 1, 2003 at Purok 4, Barangay 3, Agao, Butuan City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without
authority of law, did then and there willfully, unlawfully and feloniously possess zero point six one
three one (0.6131) grams of methamphetamine hydrochloride, otherwise known as shabu, which is
a dangerous drug.
CONTRARY TO LAW: (Violation of Section 11, Art. II of R.A. No. 9165). [4]
Eventually, the cases were consolidated and tried jointly.
Appellant pleaded NOT GUILTY to the charges against him. Thereafter, trial on the merits ensued.
In its Omnibus Judgment [5] dated September 14, 2005, the RTC found the appellant guilty beyond
reasonable doubt of the offense charged, the dispositive portion of which, reads:
WHEREFORE, the Court hereby finds accused Allen Mantalaba y Udtojan GUILTY beyond reasonable
doubt in Criminal Case No. 10250 for selling shabu, a dangerous drug, as defined and penalized
under Section 5, Article II of Republic Act No. 9165. As provided for in Sec. 98 of R.A. 9165, where
the offender is a minor, the penalty for acts punishable by life imprisonment to death shall
be reclusion perpetua to death. As such, Allen Mantalaba y Udtojan is hereby sentenced
to RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).
In Criminal Case No. 10251, the Court likewise finds accused Allen Mantalaba y Udtojan GUILTY
beyond reasonable doubt for illegally possessing shabu, a dangerous drug, weighing 0.6131 gram as
defined and penalized under Section 11, Article II of Republic Act No. 9165 and accused being a
minor at the time of the commission of the offense, after applying the Indeterminate Sentence Law,
he is accordingly sentenced to six (6) years and one (1) day, as minimum, to eight (8) years, as
maximum of prision mayor and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).
SO ORDERED. [6]
The CA affirmed in toto the decision of the RTC. It disposed of the case as follows:
WHEREFORE, the Decision of the Regional Trial Court, Branch 1, Butuan City dated September 14,
2005 appealed from finding the accused-appellant Allen Udtojan Mantalaba guilty beyond
reasonable doubt with the crime of Violation of Section 5 and Section 11, Article II of Republic Act
9165, otherwise known as the Comprehensive Dangerous Drugs Act, is AFFIRMED in toto, with costs
against accused-appellant.
SO ORDERED. [7]
Thus, the present appeal.
Appellant states the lone argument that the lower court gravely erred in convicting him of the crime
charged despite failure of the prosecution to prove his guilt beyond reasonable doubt.
According to appellant, there was no evidence of actual sale between him and the poseur-buyer. He
also argues that the chain of custody of the seized shabu was not established. Finally, he asserts that
an accused should be presumed innocent and that the burden of proof is on the prosecution.
The petition is unmeritorious.
Appellant insists that the prosecution did not present any evidence that an actual sale took
place. However, based on the testimony of PO1 Randy Pajo, there is no doubt that the buy-bust
operation was successfully conducted, thus:
PROS. RUIZ:
Q: Will you explain to this Honorable Court why did you conduct and how did you conduct your
buy-bust operation at the time?
A: We conducted a buy-bust operation because of the report from our civilian assets that Allen
Mantalaba was engaged in drug trade and selling shabu. And after we evaluated this Information
we informed Inspector Dacillo that we will operate this accused for possible apprehension.
Q: Before you conducted your buy-bust operation, what procedure did you take?
A: We prepared the operational plan for buy-bust against the suspect. We prepared a request for
powder dusting for our marked moneys to be used for the operation.
Q: Did you use marked moneys in this case?
xxxx
Q: Then armed with these marked moneys, what steps did you take next?
A: After briefing of our team, we proceeded immediately to the area.
Q: You mentioned of poseur-buyer, what would the poseur-buyer do?
A: We made an arrangement with the poseur-buyer that during the buying of shabu there should be
a pre-arranged signal of the poseur-buyer to the police officer.
Q: What happened when your poseur-buyer who, armed with this marked moneys,
approached the guy who was selling shabu at that time?
A: The poseur-buyer during that time gave the marked moneys to the suspect.
Q: Where were you when this poseur-buyer gave the moneys to the suspect?
A: We positioned ourselves about 10 meters away from the area of the poseur-buyer and the
suspect.
Q: You mentioned of the pre-arranged signal, what would this be?
A: This is a case-to-case basis, your Honor, in the pre-arrangement signal because in the pre-
arranged signal we used a cap and a towel. (sic) In the case, of this suspect, there was no
towel there was no cap at the time of giving the shabu and the marked moneys to the suspect
and considering also that that was about 7:00 o'clock in the evening. The poseur-buyer
immediately proceeded to us and informed us that the shabu was already given by the
suspect.
Q: What did you do next after that?
A: After examining the sachet of shabu that it was really the plastic containing white [crystalline]
substance, we immediately approached the suspect.
Q: Who was with a (sic) suspect when you conducted the buy-bust operation[?] Was he alone or did
he had (sic) any companion at that time?
A: He was alone.
Q: When you rushed up to the suspect what did you do?
A: We informed the suspect that we are the police officers and he has this constitutional rights and
we immediately handcuffed him.
Q: Where were the marked moneys?
A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not
immediately searched in. We called the attention of the barangay officials to witness the search of
the suspect.
Q: How many sachets of shabu have you taken from the suspect during the buy-bust operation?
A: We took from the possession of the suspect one big sachet of shabu.
xxxx
Q: What was the result of the searched (sic) for him?
A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of 100 peso bills as
marked moneys. [8]
What determines if there was, indeed, a sale of dangerous drugs in a buy-bust operation is proof of
the concurrence of all the elements of the offense, to wit: (1) the identity of the buyer and the seller,
the object, and the consideration; and (2) the delivery of the thing sold and the payment
therefor. [9] From the above testimony of the prosecution witness, it was well established that the
elements have been satisfactorily met. The seller and the poseur-buyer were properly
identified. The subject dangerous drug, as well as the marked money used, were also satisfactorily
presented. The testimony was also clear as to the manner in which the buy-bust operation was
conducted.
To corroborate the testimony of PO2 Pajo, the prosecution presented the testimony of Police
Inspector Virginia Sison-Gucor, a forensic chemical officer, who confirmed that the plastic
containing white crystalline substance was positive for methamphetamine hydrochloride and that
the petitioner was in possession of the marked money used in the buy-bust operation, thus:
PROS. RUIZ:
Q: What was the result of your examination or what were your findings on the sachets of suspected
shabu?
A: After the preliminary and confirmatory tests were conducted on the stated specimen, the result
was positive for methamphetamine hydrochloride, a dangerous drug.
xxxx
Q: What were your findings when you examined the living person of the accused, as well as the
marked money mentioned in this report?
A: According to my report, the findings for the living person of Allen Udtojan Mantalaba is positive
to the test for the presence of bright orange ultra-violet flourescent powder. x x x [10]
The above only confirms that the buy-bust operation really occurred. Once again, this Court
stresses that a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for
apprehending drug peddlers and distributors. [11] It is often utilized by law enforcers for the purpose
of trapping and capturing lawbreakers in the execution of their nefarious activities. [12] In People v.
Roa, [13] this Court had the opportunity to expound on the nature and importance of a buy-bust
operation, ruling that:
In the first place, coordination with the PDEA is not an indispensable requirement before police
authorities may carry out a buy-bust operation. While it is true that Section 86 [14]of Republic Act No.
9165 requires the National Bureau of Investigation, PNP and the Bureau of Customs to maintain
"close coordination with the PDEA on all drug-related matters," the provision does not, by so saying,
make PDEA's participation a condition sine qua non for every buy-bust operation. After all, a buy-
bust is just a form of an in flagrantearrest sanctioned by Section 5, Rule 113 [15] of the Rules of the
Court, which police authorities may rightfully resort to in apprehending violators of Republic Act
No. 9165 in support of the PDEA. [16] A buy-bust operation is not invalidated by mere non-
coordination with the PDEA.
Neither is the lack of prior surveillance fatal. The case of People v. Lacbanes [17] is quite instructive:
In People v. Ganguso, [18] it has been held that prior surveillance is not a prerequisite for the validity
of an entrapment operation, especially when the buy-bust team members were accompanied to the
scene by their informant. In the instant case, the arresting officers were led to the scene by the
poseur-buyer. Granting that there was no surveillance conducted before the buy-bust operation, this
Court held in People v. Tranca, [19] that there is no rigid or textbook method of conducting buy-bust
operations. Flexibility is a trait of good police work. The police officers may decide that time is of the
essence and dispense with the need for prior surveillance. [20]
The rule is that the findings of the trial court on the credibility of witnesses are entitled to great
respect because trial courts have the advantage of observing the demeanor of the witnesses as they
testify. This is more true if such findings were affirmed by the appellate court. When the trial court's
findings have been affirmed by the appellate court, said findings are generally binding upon this
Court. [21]
In connection therewith, the RTC, as affirmed by the CA, was also correct in finding that the
appellant is equally guilty of violation of Section 11 of RA 9165, or the illegal possession of
dangerous drug. As an incident to the lawful arrest of the appellant after the consummation of the
buy-bust operation, the arresting officers had the authority to search the person of the appellant. In
the said search, the appellant was caught in possession of 0.6131 grams of shabu. In illegal
possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or
object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and
(3) the accused freely and consciously possessed the said drug. [22]
As a defense, appellant denied that he owns the shabu and the marked money confiscated from
him. However, based on his cross-examination, such denial was not convincing enough to merit
reasonable doubt, thus:
PROS. RUIZ:
Q: So it is true now that when these police officers passed you by they recovered from your
possession one sachet of shabu?
A: Yes, sir.
Q: And it is true that after you were arrested and when you were searched they also found
another sachet of shabu also in your pocket?
A: Yes, sir.
Q: And you mentioned in your counter-affidavit marked as Exhibit H for the prosecution that no
money was taken from you because you have none at that time, is it not?
A: None sir, only the P250.00 which Jonald Ybanoso left to me.
Q: This P250.00 which Jonald left to you was also confiscated from your possession?
A: Yes, sir.
Q: Were not P200 of the P250.00 was thrown to the ground during the time you were arrested by
the police?
A: No, sir.
Q: It was taken from your possession?
A: Yes, sir.
Q: And when the policemen brought you to the crime laboratory and had your hands tested for
ultra-violet fluorescent powder, your hands tested positively for the presence of the said powder?
A: Yes, sir. [23]
Incidentally, the defenses of denial and frame-up have been invariably viewed by this Court with
disfavor for it can easily be concocted and is a common and standard defense ploy in prosecutions
for violation of the Dangerous Drugs Act. In order to prosper, the defenses of denial and frame-up
must be proved with strong and convincing evidence. [24]
Another contention raised by the appellant is the failure of the prosecution to show the chain of
custody of the recovered dangerous drug. According to him, while it was Inspector Ferdinand B.
Dacillo who signed the request for laboratory examination, only police officers Pajo and Simon were
present in the buy-bust operation.
Section 21 of RA 9165 reads:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and
any elected public official who shall be required to sign the copies of the inventory and be given a
copy thereof.
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is
justifiable ground therefor, and as long as the integrity and the evidentiary value of the
confiscated/seized items are properly preserved by the apprehending officer/team. [25] Its non-
compliance will not render an accused's arrest illegal or the items seized/confiscated from him
inadmissible. [26] What is of utmost importance is the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the determination of the guilt
or innocence of the accused. [27] In this particular case, it is undisputed that police officers Pajo and
Simon were members of the buy-bust operation team. The fact that it was Inspector Ferdinand B.
Dacillo who signed the letter-request for laboratory examination does not in any way affect the
integrity of the items confiscated. All the requirements for the proper chain of custody had been
observed. As testified to by PO2 Pajo regarding the procedure undertaken after the consummation
of the buy-bust operation:
Prosecutor
Q: What did you do next after that?
A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] in
substance, we immediately approached the suspect.
xxxx
Q: When you rushed up to the suspect, what did you do?
A: We informed the suspect that we are the police officers and he has this [constitutional] rights and
immediately handcuffed him.
Q: Where were the marked moneys?
A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not
immediately searched in. We called the attention of the barangay officials to witness the search of
the suspect.
xxxx
Q: Now, before you searched the suspect you requested the presence of the barangayofficials. Now,
when these barangay officials were present, what did you do on the suspect?
A: We immediately searched the suspect.
Q: What was the result of the searched for him? (sic)
A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of P100.00 peso
bills as marked moneys.
Q: You said the suspect threw the marked moneys when you searched him, where were the marked
moneys?
A: On the ground.
Q: Who picked these marked moneys?
A: I was the one who picked the marked moneys.
Q: And then after you had picked the marked moneys and after you had the 2 pieces of sachets of
shabu; one during the buy-bust and the other one during the search, what did you do [with] these 2
pieces of sachets of shabu and the marked moneys?
A: I recorded those items recovered, sir, during the search to the Certificate of Inventory. [28]
As ruled by this Court, what is crucial in the chain of custody is the marking of the confiscated item
which, in the present case, was complied with, thus:
Crucial in proving chain of custody is the marking [29] of the seized drugs or other related items
immediately after they are seized from the accused. Marking after seizure is the starting point in the
custodial link, thus, it is vital that the seized contraband are immediately marked because
succeeding handlers of the specimens will use the markings as reference. The marking of the
evidence serves to separate the marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until they are disposed of at the end of
criminal proceedings, obviating switching, "planting," or contamination of evidence. [30]
Anent the age of the appellant when he was arrested, this Court finds it appropriate to discuss the
effect of his minority in his suspension of sentence. The appellant was seventeen (17) years old
when the buy-bust operation took place or when the said offense was committed, but was no longer
a minor at the time of the promulgation of the RTC's Decision.
It must be noted that RA 9344 took effect on May 20, 2006, while the RTC promulgated its decision
on this case on September 14, 2005, when said appellant was no longer a minor. The RTC did not
suspend the sentence in accordance with Article 192 of P.D. 603, The Child and Youth Welfare
Code [31] and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law, [32] the
laws that were applicable at the time of the promulgation of judgment, because the imposable
penalty for violation of Section 5 of RA 9165 is life imprisonment to death.
It may be argued that the appellant should have been entitled to a suspension of his sentence under
Sections 38 and 68 of RA 9344 which provide for its retroactive application, thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age
at the time of the commission of the offense is found guilty of the offense charged, the court shall
determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in
conflict with the law under suspended sentence, without need of application: Provided, however,
That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18)
of age or more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court [Rule] on
Juveniles in Conflict with the Law.
xxxx
Sec. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been
convicted and are serving sentence at the time of the effectivity of this Act, and who were below the
age of eighteen (18) years at the time of the commission of the offense for which they were
convicted and are serving sentence, shall likewise benefit from the retroactive application of this
Act. x x x
However, this Court has already ruled in People v. Sarcia [33] that while Section 38 of RA 9344
provides that suspension of sentence can still be applied even if the child in conflict with the law is
already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt,
Section 40 of the same law limits the said suspension of sentence until the child reaches the
maximum age of 21. The provision states:
SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of
the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or
if the child in conflict with the law has willfully failed to comply with the condition of his/her
disposition or rehabilitation program, the child in conflict with the law shall be brought before the
court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period
or until the child reaches the maximum age of twenty-one (21) years.
Hence, the appellant, who is now beyond the age of twenty-one (21) years can no longer avail of the
provisions of Sections 38 and 40 of RA 9344 as to his suspension of sentence, because such is
already moot and academic. It is highly noted that this would not have happened if the CA, when
this case was under its jurisdiction, suspended the sentence of the appellant. The records show that
the appellant filed his notice of appeal at the age of 19 (2005), hence, when RA 9344 became
effective in 2006, appellant was 20 years old, and the case having been elevated to the CA, the latter
should have suspended the sentence of the appellant because he was already entitled to the
provisions of Section 38 of the same law, which now allows the suspension of sentence of minors
regardless of the penalty imposed as opposed to the provisions of Article 192 of P.D. 603. [34]
Nevertheless, the appellant shall be entitled to appropriate disposition under Section 51 of RA No.
9344, which provides for the confinement of convicted children as follows: [35]
SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.
In finding the guilt beyond reasonable doubt of the appellant for violation of Section 5 of RA 9165,
the RTC imposed the penalty of reclusion perpetua as mandated in Section 98 [36] of the same law. A
violation of Section 5 of RA 9165 merits the penalty of life imprisonment to death; however, in
Section 98, it is provided that, where the offender is a minor, the penalty for acts punishable by life
imprisonment to death provided in the same law shall be reclusion perpetua to death. Basically, this
means that the penalty can now be graduated as it has adopted the technical nomenclature of
penalties provided for in the Revised Penal Code. The said principle was enunciated by this Court
in People v. Simon, [37] thus:
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for
offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised
Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws involved provided their own
specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special
laws concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose main
function is to determine the period of the penalty in accordance with the rules in Article 64 of the
Code.
This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws,
as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary application.
should in any event be prision correccional in order not to depreciate the seriousness of drug
offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress. [38]
Consequently, the privileged mitigating circumstance of minority [39] can now be appreciated in
fixing the penalty that should be imposed. The RTC, as affirmed by the CA, imposed the penalty
of reclusion perpetua without considering the minority of the appellant. Thus, applying the rules
stated above, the proper penalty should be one degree lower than reclusion perpetua, which
is reclusion temporal, the privileged mitigating circumstance of minority having been
appreciated. Necessarily, also applying the Indeterminate Sentence Law (ISLAW), the minimum
penalty should be taken from the penalty next lower in degree which is prision mayor and the
maximum penalty shall be taken from the medium period of reclusion temporal, there being no
other mitigating circumstance nor aggravating circumstance. [40] The ISLAW is applicable in the
present case because the penalty which has been originally an indivisible penalty (reclusion
perpetua to death), where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by
virtue of the presence of the privileged mitigating circumstance of minority. Therefore, a penalty of
six (6) years and one (1) day of prision mayor, as minimum, and fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal, as maximum, would be the proper imposable penalty.

The situation, however, is different where although the offense is defined in and ostensibly
punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in
its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would consequently be both illogical and
absurd to posit otherwise.
xxxx
WHEREFORE, the Decision dated July 31, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
00240-MIN, affirming the Omnibus Judgment dated September 14, 2005 of the Regional Trial Court,
Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding appellant
Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II
of RA 9165 is hereby AFFIRMED with the MODIFICATION that the penalty that should be imposed
on appellant's conviction of violation of Section 5 of RA 9165, is six (6) years and one (1) day
of prision mayor, as minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum.

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree SO ORDERED.
of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of
penalties in Article 71, are the stage of execution of the crime and the nature of the participation of
the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary
mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one
degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67
and 68, can reduce the penalty by one or two degrees, or even more. These provisions of
Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under
the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results
which could not have been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this case consists of three discrete penalties in their full extent, that
is, prision correccional, prision mayor and reclusion temporal, then one degree lower would
be arresto menor, destierroand arresto mayor. There could, however, be no further reduction by still
one or two degrees, which must each likewise consist of three penalties, since only the penalties of
fine and public censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty
 G.R. No. 225442, August 08, 2017
SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE SACE LIM, JOHN
ARVIN NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO DELOS REYES, AND CLARISSA
JOYCE VILLEGAS, MINOR, FOR HERSELF AND AS REPRESENTED BY HER FATHER, JULIAN
VILLEGAS, JR., Petitioners, v. QUEZON CITY, AS REPRESENTED BY MAYOR HERBERT BAUTISTA,
CITY OF MANILA, AS REPRESENTED BY MAYOR JOSEPH ESTRADA, AND NAVOTAS CITY, AS
REPRESENTED BY MAYOR JOHN REY TIANGCO, Respondents.
DECISION
PERLAS-BERNABE, J.:
This petition for certiorari and prohibition1 assails the constitutionality of the curfew ordinances
issued by the local governments of Quezon City, Manila, and Navotas. The petition prays that a
temporary restraining order (TRO) be issued ordering respondents Herbert Bautista, Joseph
Estrada, and John Rey Tiangco, as Mayors of their respective local governments, to prohibit, refrain,
and desist from implementing and enforcing these issuances, pending resolution of this case, and
eventually, declare the City of Manila's ordinance as ultra vires for being contrary to Republic Act
No. (RA) 9344,2 or the "Juvenile Justice and Welfare Act," as amended, and all curfew ordinances as
unconstitutional for violating the constitutional right of minors to travel, as well as the right of
parents to rear their children.
The Facts
Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for
minors, several local governments in Metro Manila started to strictly implement their curfew
ordinances on minors through police operations which were publicly known as part of "Oplan
Rody."3
Among those local governments that implemented curfew ordinances were respondents: (a)
Navotas City, through Pambayang Ordinansa Blg. 99-02,4 dated August 26, 1999, entitled
"Nagtatakda ng 'Curfew' ng mga Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa
Bayan ng Navotas, Kalakhang Maynila," as amended by Pambayang Ordinansa Blg. 2002-13,5 dated
June 6, 2002 (Navotas Ordinance); (b) City of Manila, through Ordinance No. 8046 6 entitled "An
Ordinance Declaring the Hours from 10:00 P.M. to 4:00A.M. of the Following Day as 'Barangay
Curfew Hours' for Children and Youths Below Eighteen (18) Years of Age; Prescribing Penalties
Therefor; and for Other Purposes" dated October 14, 2002 (Manila Ordinance); and (c) Quezon City,
through Ordinance No. SP-2301,7 Series of 2014, entitled "An Ordinance Setting for a [sic]
Disciplinary Hours in Quezon City for Minors from 10:00 P.M. to 5:00A.M., Providing Penalties for
Parent/Guardian, for Violation Thereof and for Other Purposes" dated July 31, 2014 (Quezon City
Ordinance; collectively, Curfew Ordinances).8
Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK)- an association
of young adults and minors that aims to forward a free and just society, in particular the protection
of the rights and welfare of the youth and minors10 - filed this present petition, arguing that the
Curfew Ordinances are unconstitutional because they: (a) result in arbitrary and discriminatory
enforcement, and thus, fall under the void for vagueness doctrine; (b) suffer from overbreadth by
proscribing or impairing legitimate activities of minors during curfew hours; (c) deprive minors of
the right to liberty and the right to travel without substantive due process; and (d) deprive parents
of their natural and primary right in rearing the youth without substantive due process. 11 In
addition, petitioners assert that the Manila Ordinance contravenes RA 9344, as amended by RA
10630.12
More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and
discriminatory enforcement as there are no clear provisions or detailed standards on how law
enforcers should apprehend and properly determine the age of the alleged curfew violators. 13 They
further argue that the law enforcer's apprehension depends only on his physical assessment, and,
thus, subjective and based only on the law enforcer's visual assessment of the alleged curfew
violator.14
While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities
exempted from the operation of the imposed curfews, i.e., exemption of working students or
students with evening class, they contend that the lists of exemptions do not cover the range and
breadth of legitimate activities or reasons as to why minors would be out at night, and, hence,
proscribe or impair the legitimate activities of minors during curfew hours. 15
Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive
minors of the right to liberty and the right to travel without substantive due process; 16 and (b) fail to
pass the strict scrutiny test, for not being narrowly tailored and for employing means that bear no
reasonable relation to their purpose.17 They argue that the prohibition of minors on streets during
curfew hours will not per se protect and promote the social and moral welfare of children of the
community.18
Furthermore, petitioners claim that the Manila Ordinance, particularly Section 4 19 thereof,
contravenes Section 57-A20 of RA 9344, as amended, given that the cited curfew provision imposes
on minors the penalties of imprisonment, reprimand, and admonition. They contend that the
imposition of penalties contravenes RA 9344's express command that no penalty shall be imposed
on minors for curfew violations.21
Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to
the parents' prerogative to impose them in the exercise of their natural and primary right in the
rearing of the youth, and that even if a compelling interest exists, less restrictive means are available
to achieve the same. In this regard, they suggest massive street lighting programs, installation of
CCTVs (closed-circuit televisions) in public streets, and regular visible patrols by law enforcers as
other viable means of protecting children and preventing crimes at night. They further opine that
the government can impose more reasonable sanctions, i.e., mandatory parental counseling and
education seminars informing the parents of the reasons behind the curfew, and that imprisonment
is too harsh a penalty for parents who allowed their children to be out during curfew hours. 22
The Issue Before the Court
The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances
are unconstitutional.
The Court's Ruling
The petition is partly granted.
I.
At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the
dismissal of the petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65
of the Rules of Court to assail the constitutionality of the Curfew Ordinances; (b) petitioners' direct
resort to the Court, contrary to the hierarchy of courts doctrine; and (c) the lack of actual
controversy and standing to warrant judicial review.23
A. Propriety of the Petition for Certiorari and Prohibition.
Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to
settle actual controversies involving rights which are legally demandable and enforceable," but also
"to determine whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government." 24 Section 1, Article
VIII of the 1987 Constitution reads:
ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentalitv of the Government. (Emphasis and underscoring supplied)
Case law explains that the present Constitution has "expanded the concept of judicial power, which
up to then was confined to its traditional ambit of settling actual controversies involving rights that
were legally demandable and enforceable."25
In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed before the
Court "are the remedies by which the grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government may be determined
under the Constitution."27 It was explained that "[w]ith respect to the Court, x x x the remedies
of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal,
corporation, board or officer exercising judicial, quasi-judicial or ministerial functions, but also to
set right, undo[,] and restrain any act of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the Government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1, [Article VIII of the 1987 Constitution
cited above]."28
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers
Association, Inc.,29 it was expounded that "[m]eanwhile that no specific procedural rule has been
promulgated to enforce [the] 'expanded' constitutional definition of judicial power and because of
the commonality of 'grave abuse of discretion' as a ground for review under Rule 65 and the courts'
expanded jurisdiction, the Supreme Court - based on its power to relax its rules - allowed Rule 65 to
be used as the medium for petitions invoking the courts' expanded jurisdiction[.]" 30
In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of
Quezon City, Manila, and Navotas in the exercise of their delegated legislative powers on the ground
that these ordinances violate the Constitution, specifically, the provisions pertaining to the right to
travel of minors, and the right of parents to rear their children. They also claim that the Manila
Ordinance, by imposing penalties against minors, conflicts with RA 9344, as amended, which
prohibits the imposition of penalties on minors for status offenses. It has been held that "[t]here is
grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or
jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or
personal bias."31 In light of the foregoing, petitioners correctly availed of the remedies
of certiorari and prohibition, although these governmental actions were not made pursuant to any
judicial or quasi-judicial function.
B. Direct Resort to the Court.
Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality
of legislative and executive enactments, the next question to be resolved is whether or not
petitioners' direct resort to this Court is justified.
The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked
court exercising concurrent jurisdiction with a higher court. The Supreme Court has original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
While this jurisdiction is shared with the Court of Appeals [(CA)] and the [Regional Trial Courts], a
direct invocation of this Court's jurisdiction is allowed when there are special and important
reasons therefor, clearly and especially set out in the petition[.]"32 This Court is tasked to
resolve "the issue of constitutionality of a law or regulation at the first instance [if it] is of
paramount importance and immediately affects the social, economic, and moral well-being of
the people,"33 as in this case. Hence, petitioners' direct resort to the Court is justified.
C. Requisites of Judicial Review.
"The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry, namely: (a) there must be anactual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality
must be the very lis mota of the case."34 In this case, respondents assail the existence of the first two
(2) requisites.
1. Actual Case or Controversy.
"Basic in the exercise of judicial power — whether under the traditional or in the expanded setting
— is the presence of an actual case or controversy."35 "[A]n actual case or controversy is one which
'involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute.' In other words,
'there must be a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence."'36 According to recent jurisprudence, in the Court's exercise of
its expanded jurisdiction under the 1987 Constitution, this requirement is simplified "by merely
requiring a prima facie showing of grave abuse of discretion in the assailed governmental
act."37
"Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A
question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite
that something has then been accomplished or performed by either branch before a court
may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act
complained of."38
Applying these precepts, this Court finds that there exists an actual justiciable controversy in this
case given the evident clash of the parties' legal claims, particularly on whether the Curfew
Ordinances impair the minors' and parents' constitutional rights, and whether the Manila Ordinance
goes against the provisions of RA 9344. Based on their asseverations, petitioners have - as will be
gleaned from the substantive discussions below - conveyed a prima facie case of grave abuse of
discretion, which perforce impels this Court to exercise its expanded jurisdiction. The case is
likewise ripe for adjudication, considering that the Curfew Ordinances were being implemented
until the Court issued the TRO39enjoining their enforcement. The purported threat or incidence of
injury is, therefore, not merely speculative or hypothetical but rather, real and apparent.
2. Legal Standing.
"The question of locus standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the matter to the court for
adjudication. [Petitioners] must show that they have a personal and substantial interest in the
case, such that they have sustained or are in immediate danger of sustaining, some direct
injury as a consequence of the enforcement of the challenged governmental act."40 "'[I]nterest'
in the question involved must be material — an interest that is in issue and will be affected by the
official act — as distinguished from being merely incidental or general."41
"The gist of the question of [legal] standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions. Unless a person is injuriously affected in any of his constitutional rights
by the operation of statute or ordinance, he has no standing." 42
As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights,
namely: (1) the right of minors to freely travel within their respective localities; and (2) the primary
right of parents to rear their children. Related to the first is the purported conflict between RA 9344,
as amended, and the penal provisions of the Manila Ordinance.
Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to
raise the issue affecting the minor's right to travel,43 because: (a) she was still a minor at the time
the petition was filed before this Court,44 and, hence, a proper subject of the Curfew Ordinances; and
(b) as alleged, she travels from Manila to Quezon City at night after school and is, thus, in imminent
danger of apprehension by virtue of the Curfew Ordinances. On the other hand, petitioners Joanne
Rose Sace Lim, John Arvin Navarro Buenaagua, Ronel Baccutan (Ronel), and Mark Leo Delos Reyes
(Mark Leo) admitted in the petition that they are all of legal age, and therefore, beyond the
ordinances' coverage. Thus, they are not proper subjects of the Curfew Ordinances, for which they
could base any direct injury as a consequence thereof.
None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate the
parents' right to rear their children as they have not shown that they stand before this Court as
parent/s and/or guardian/s whose constitutional parental right has been infringed. It should be
noted that Clarissa is represented by her father, Julian Villegas, Jr. (Mr. Villegas), who could have
properly filed the petition for himself for the alleged violation of his parental right. But Mr. Villegas
did not question the Curfew Ordinances based on his primary right as a parent as he only stands as
the representative of his minor child, Clarissa, whose right to travel was supposedly infringed.
As for SPARK, it is an unincorporated association and, consequently, has no legal personality to
bring an action in court.45 Even assuming that it has the capacity to sue, SPARK still has no standing
as it failed to allege that it was authorized by its members who were affected by the Curfew
Ordinances, i.e., the minors, to file this case on their behalf.
Hence, save for Clarissa, petitioners do not have the required personal interest in the controversy.
More particularly, Clarissa has standing only on the issue of the alleged violation of the minors' right
to travel, but not on the alleged violation of the parents' right.
These notwithstanding, this Court finds it proper to relax the standing requirement insofar as all the
petitioners are concerned, in view of the transcendental importance of the issues involved in this
case. "In a number of cases, this Court has taken a liberal stance towards the requirement of legal
standing, especially when paramount interest is involved. Indeed, when those who challenge the
official act are able to craft an issue of transcendental significance to the people, the Court
may exercise its sound discretion and take cognizance of the suit. It may do so in spite of the
inability of the petitioners to show that they have been personally injured by the operation of a law
or any other government act."46
This is a case of first impression in which the constitutionality of juvenile curfew ordinances is
placed under judicial review. Not only is this Court asked to determine the impact of these issuances
on the right of parents to rear their children and the right of minors to travel, it is also requested to
determine the extent of the State's authority to regulate these rights in the interest of general
welfare. Accordingly, this case is of overarching significance to the public, which, therefore, impels a
relaxation of procedural rules, including, among others, the standing requirement.
That being said, this Court now proceeds to the substantive aspect of this case.
II.
A. Void for Vagueness.
Before resolving the issues pertaining to the rights of minors to travel and of parents to rear their
children, this Court must first tackle petitioners' contention that the Curfew Ordinances are void for
vagueness.
In particular, petitioners submit that the Curfew Ordinances are void for not containing sufficient
enforcement parameters, which leaves the enforcing authorities with unbridled discretion to carry
out their provisions. They claim that the lack of procedural guidelines in these issuances led to the
questioning of petitioners Ronel and Mark Leo, even though they were already of legal age. They
maintain that the enforcing authorities apprehended the suspected curfew offenders based only on
their physical appearances and, thus, acted arbitrarily. Meanwhile, although they conceded that the
Quezon City Ordinance requires enforcers to determine the age of the child, they submit that
nowhere does the said ordinance require the law enforcers to ask for proof or identification of the
child to show his age.47
The arguments are untenable.
"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ as to its application. It
is repugnant to the Constitution in two (2) respects: (1) it violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle."48
In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that
they do not properly identify any provision in any of the Curfew Ordinances, which, because of its
vague terminology, fails to provide fair warning and notice to the public of what is prohibited or
required so that one may act accordingly. 49The void for vagueness doctrine is premised on due Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was perceived to
process considerations, which are absent from this particular claim. In one case, it was opined be a minor violating the curfew, may therefore prove that he is beyond the application of the Curfew
that: Ordinances by simply presenting any competent proof of identification establishing their majority
age. In the absence of such proof, the law authorizes enforcement authorities to conduct a visual
assessment of the suspect, which - needless to state - should be done ethically and judiciously under
[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve
the circumstances. Should law enforcers disregard these rules, the remedy is to pursue the
"procedural due process uncertainty cases" and "substantive due process uncertainty cases."
appropriate action against the erring enforcing authority, and not to have the ordinances
"Procedural due process uncertainty" involves cases where the statutory language was so obscure
invalidated.
that it failed to give adequate warning to those subject to its prohibitions as well as to provide
proper standards for adjudication. Such a definition encompasses the vagueness doctrine. This
perspective rightly integrates the vagueness doctrine with the due process clause, a necessary All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is denied.
interrelation since there is no constitutional provision that explicitly bars statutes that are "void-
for-vagueness."50
B. Right of Parents to Rear their Children.

Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities
Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive parents of
in the proper apprehension of suspected curfew offenders. They do not assert any confusion as to
their natural and primary right in the rearing of the youth without substantive due process. In this
what conduct the subject ordinances prohibit or not prohibit but only point to the
regard, they assert that this right includes the right to determine whether minors will be required to
ordinances' lack of enforcement guidelines. The mechanisms related to the implementation of
go home at a certain time or will be allowed to stay late outdoors. Given that the right to impose
the Curfew Ordinances are, however, matters of policy that are best left for the political branches of
curfews is primarily with parents and not with the State, the latter's interest in imposing curfews
government to resolve. Verily, the objective of curbing unbridled enforcement is not the sole
cannot logically be compelling.57
consideration in a void for vagueness analysis; rather, petitioners must show that this perceived
danger of unbridled enforcement stems from an ambiguous provision in the law that allows
enforcement authorities to second-guess if a particular conduct is prohibited or not prohibited. In Petitioners' stance cannot be sustained.
this regard, that ambiguous provision of law contravenes due process because agents of the
government cannot reasonably decipher what conduct the law permits and/or forbids. In Bykofsky
Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of
v. Borough of Middletown,51 it was ratiocinated that:
parents in the rearing of their children:

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
resolution on ad hoc and subjective basis, and vague standards result in erratic and arbitrary
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
application based on individual impressions and personal predilections. 52
life of the unborn from conception. The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of moral character shall receive
As above-mentioned, petitioners fail to point out any ambiguous standard in any of the provisions of the support of the Government. (Emphasis and underscoring supplied.)
the Curfew Ordinances, but rather, lament the lack of detail on how the age of a suspected minor
would be determined. Thus, without any correlation to any vague legal provision, the Curfew
As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for
Ordinances cannot be stricken down under the void for vagueness doctrine.
civic efficiency and the development of their moral character are characterized not only as parental
rights, but also as parental duties. This means that parents are not only given the privilege of
Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify exercising their authority over their children; they are equally obliged to exercise this authority
suspected curfew violators. While it is true that the Curfew Ordinances do not explicitly state these conscientiously. The duty aspect of this provision is a reflection of the State's independent interest
parameters, law enforcement agents are still bound to follow the prescribed measures found in to ensure that the youth would eventually grow into free, independent, and well-developed citizens
statutory law when implementing ordinances. Specifically, RA 9344, as amended, provides: of this nation. For indeed, it is during childhood that minors are prepared for additional obligations
to society. "[T]he duty to prepare the child for these [obligations] must be read to include the
inculcation of moral standards, religious beliefs, and elements of good citizenship."58 "This
Section 7. Determination of Age. - x x x The age of a child may be determinedfrom the child's birth
affirmative process of teaching, guiding, and inspiring by precept and example is essential to the
certificate, baptismal certificate or any other pertinent documents. In the absence of these
growth of young people into mature, socially responsible citizens."59
documents, age may be based on information from the child himself/herself, testimonies of
other persons, the physical appearance of the child and other relevant evidence. (Emphases
supplied) By history and tradition, "the parental role implies a substantial measure of authority over one's
children."60 In Ginsberg v. New York,61 the Supreme Court of the United States (US) remarked that
"constitutional interpretation has consistently recognized that the parents' claim to authority in
This provision should be read in conjunction with the Curfew Ordinances because RA 10630 (the
their own household to direct the rearing of their children is basic in the structure of our
law that amended RA 9344) repeals all ordinances inconsistent with statutory law. 53 Pursuant to
society."62 As in our Constitution, the right and duty of parents to rear their children is not only
Section 57-A of RA 9344, as amended by RA 10630,54minors caught in violation of curfew
described as "natural," but also as "primary." The qualifier "primary" connotes the parents'
ordinances are children at risk and, therefore, covered by its provisions.55 It is a long-standing
superior right over the State in the upbringing of their children.63 The rationale for the State's
principle that "[c]onformity with law is one of the essential requisites for the validity of a
deference to parental control over their children was explained by the US Supreme Court in Bellotti
municipal ordinance."56 Hence, by necessary implication, ordinances should be read and
v. Baird (Bellotti),64 as follows:
implemented in conjunction with related statutory law.
[T]he guiding role of parents in their upbringing of their children justifies limitations on the
freedoms of minors. The State commonly protects its youth from adverse governmental action and
from their own immaturity by requiring parental consent to or involvement in important decisions
by minors. But an additional and more important justification for state deference to parental
control over children is that "the child is not [a] mere creature of the State; those who
nurture him and direct his destiny have the right, coupled with the high duty, to recognize
and prepare him for additional obligations."65 (Emphasis and underscoring supplied)
While parents have the primary role in child-rearing, it should be stressed that "when actions
concerning the child have a relation to the public welfare or the well-being of the child, the
[S]tate may act to promote these legitimate interests."66 Thus, "[i]n cases in which harm to the
physical or mental health of the child or to public safety, peace, order, or welfare is
demonstrated, these legitimate state interests may override the parents' qualified right to
control the upbringing of their children."67
As our Constitution itself provides, the State is mandated to support parents in the exercise of these
rights and duties. State authority is therefore, not exclusive of, but rather, complementary to
parental supervision. In Nery v. Lorenzo,68 this Court acknowledged the State's role as parens
patriaein protecting minors, viz.:
[W]here minors are involved, the State acts as parens patriae. To it is cast the duty of
protecting the rights of persons or individual who because of age or incapacity are in an
unfavorable position, vis-a vis other parties. Unable as they are to take due care of what concerns
them, they have the political community to look after their welfare. This obligation the state must
live up to. It cannot be recreant to such a trust. As was set forth in an opinion of the United States
Supreme Court: "This prerogative of parens patriae is inherent in the supreme power of every
State, x x x."69 (Emphases and underscoring supplied)
As parens patriae, the State has the inherent right and duty to aid parents in the moral
development of their children,70 and, thus, assumes a supporting role for parents to fulfill their
parental obligations. In Bellotti, it was held that "[l]egal restriction on minors, especially those
supportive of the parental role, may be important to the child's chances for the full growth and
maturity that make eventual participation in a free society meaningful and rewarding. Under the
Constitution, the State can properly conclude that parents and others, teachers for example,
who have the primary responsibility for children's well-being are entitled to the support of
the laws designed to aid discharge of that responsibility."71
The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of
promoting their children's well-being. As will be later discussed at greater length, these ordinances
further compelling State interests (particularly, the promotion of juvenile safety and the prevention
of juvenile crime), which necessarily entail limitations on the primary right of parents to rear their
children. Minors, because of their peculiar vulnerability and lack of experience, are not only more
exposed to potential physical harm by criminal elements that operate during the night; their moral
well-being is likewise imperiled as minor children are prone to making detrimental decisions during
this time.72
At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors
are not - whether actually or constructively (as will be later discussed) - accompanied by their
parents. This serves as an explicit recognition of the State's deference to the primary nature of
parental authority and the importance of parents' role in child-rearing. Parents are effectively given
unfettered authority over their children's conduct during curfew hours when they are able to
supervise them. Thus, in all actuality,the only aspect of parenting that the Curfew Ordinances
affects is the parents' prerogative to allow minors to remain in public places without
parental accompaniment during the curfew hours.73 In this respect, the ordinances neither
dictate an over-all plan of discipline for the parents to apply to their minors nor force
parents to abdicate their authority to influence or control their minors' activities.74 As such,
the Curfew Ordinances only amount to a minimal - albeit reasonable - infringement upon a parent's
right to bring up his or her child.
Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend
more time at home. Consequently, this situation provides parents with better opportunities to take
a more active role in their children's upbringing. In Schleifer v. City of Charlottesvillle
(Schleifer),75 the US court observed that the city government "was entitled to believe x x x that a
nocturnal curfew would promote parental involvement in a child's upbringing. A curfew aids the
efforts of parents who desire to protect their children from the perils of the street but are unable to
control the nocturnal behavior of those children."76 Curfews may also aid the "efforts of parents who
prefer their children to spend time on their studies than on the streets." 77 Reason dictates that these
realities observed in Schleifer are no less applicable to our local context. Hence, these are additional
reasons which justify the impact of the nocturnal curfews on parental rights.
In fine, the Curfew Ordinances should not be declared unconstitutional for violating the parents'
right to rear their children.
C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors' right
to travel. They claim that the liberty to travel is a fundamental right, which, therefore, necessitates
the application of the strict scrutiny test. Further, they submit that even if there exists a compelling
State interest, such as the prevention of juvenile crime and the protection of minors from crime,
there are other less restrictive means for achieving the government's interest. 78 In addition, they
posit that the Curfew Ordinances suffer from overbreadth by proscribing or impairing legitimate
activities of minors during curfew hours.79
Petitioner's submissions are partly meritorious.
At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine, considering that
petitioners have not claimed any transgression of their rights to free speech or any inhibition of
speech-related conduct. In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council
(Southern Hemisphere),80 this Court explained that "the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable
only to free speech cases,"81viz.:
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation
in order to plot areas of protected speech, inevitably almost always under situations not before
the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated,
a statute cannot be properly analyzed for being substantially overbroad if the court confines itself
only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of
the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only
assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely
"as applied for" so that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute
on third parties not courageous enough to bring suit. The Court assumes that an overbroad
law's "very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.82 (Emphases and underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to free
speech claims, the Court, in at least two [(2)] cases, observed that the US Supreme Court has not
recognized an overbreadth doctrine outside the limited context of the First Amendment, 83 and that
claims of facial overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words. In Virginia v. Hicks,84 it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is not specifically addressed to
speech or speech-related conduct. Attacks on overly broad statutes are justified by the
'transcendent value to all society of constitutionally protected expression."' 85
In the more recent case of Spouses Imbong v. Ochoa, Jr.,86 it was opined that "[f]acial challenges can
only be raised on the basis of overbreadth and not on vagueness. Southern Hemisphere
demonstrated how vagueness relates to violations of due process rights, whereas facial challenges
are raised on the basis of overbreadth and limited to the realm of freedom of expression."87
That being said, this Court finds it improper to undertake an overbreadth analysis in this case, there
being no claimed curtailment of free speech. On the contrary, however, this Court finds proper to
examine the assailed regulations under the strict scrutiny test.
The right to travel is recognized and guaranteed as a fundamental right 88 under Section 6, Article III
of the 1987 Constitution, to wit:
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety, or public health, as may be
provided by law. (Emphases and underscoring supplied)
Jurisprudence provides that this right refers to the right to move freely from the Philippines to other
countries or within the Philippines.89 It is a right embraced within the general concept of
liberty.90Liberty - a birthright of every person - includes the power of locomotion91 and the right of
citizens to be free to use their faculties in lawful ways and to live and work where they desire or
where they can best pursue the ends of life.92
The right to travel is essential as it enables individuals to access and exercise their other rights, such
as the rights to education, free expression, assembly, association, and religion. 93 The inter-relation
of the right to travel with other fundamental rights was briefly rationalized in City of Maquoketa v.
Russell,94 as follows:
Whenever the First Amendment rights of freedom of religion, speech, assembly, and association
require one to move about, such movement must necessarily be protected under the First
Amendment. Restricting movement in those circumstances to the extent that First Amendment
Rights cannot be exercised without violating the law is equivalent to a denial of those rights.
One court has eloquently pointed this out:
We would not deny the relatedness of the rights guaranteed by the First Amendment to
freedom of travel and movement. If, for any reason, people cannot walk or drive to their church,
their freedom to worship is impaired. If, for any reason, people cannot walk or drive to the meeting
hall, freedom of assembly is effectively blocked. If, for any reason, people cannot safely walk the
sidewalks or drive the streets of a community, opportunities for freedom of speech are sharply
limited. Freedom of movement is inextricably involved with freedoms set forth in the First
Amendment. (Emphases supplied)
Nevertheless, grave and overriding considerations of public interest justify restrictions even if made
against fundamental rights. Specifically on the freedom to move from one place to another,
jurisprudence provides that this right is not absolute.95 As the 1987 Constitution itself reads, the
State96 may impose limitations on the exercise of this right, provided that they: (1) serve the
interest of national security, public safety, or public health; and (2) are provided by law.97
The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and
prevention of juvenile crime, inarguably serve the interest of public safety. The restriction on the
minor's movement and activities within the confines of their residences and their immediate
vicinity during the curfew period is perceived to reduce the probability of the minor becoming
victims of or getting involved in crimes and criminal activities. As to the second requirement, i.e.,
that the limitation "be provided by law," our legal system is replete with laws emphasizing the
State's duty to afford special protection to children, i.e., RA 7610,98 as amended, RA 9775,99 RA
9262,100 RA 9851, 101 RA 9344,102 RA 10364,103RA 9211,104 RA 8980,105 RA 9288,106 and Presidential
Decree (PD) 603,107 as amended.
Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local
government units, through their city or municipal councils, to set curfew hours for children. It reads:
Article 139. Curfew Hours for Children. - City or municipal councils may prescribe such curfew
hours for children as may be warranted by local conditions. The duty to enforce curfew
ordinances shall devolve upon the parents or guardians and the local authorities.
x x x x (Emphasis and underscoring supplied)
As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents
have done in this case) and enforce the same through their local officials. In other words, PD 603
provides sufficient statutory basis - as required by the Constitution - to restrict the minors' exercise
of the right to travel.
The restrictions set by the Curfew Ordinances that apply solely to minors are likewise
constitutionally permissible. In this relation, this Court recognizes that minors do possess and enjoy
constitutional rights,108but the exercise of these rights is not co-extensive as those of
adults.109 They are always subject to the authority or custody of another, such as their parent/s
and/or guardian/s, and the State.110 As parens patriae, the State regulates and, to a certain extent,
restricts the minors' exercise of their rights, such as in their affairs concerning the right to
vote,111 the right to execute contracts,112 and the right to engage in gainful employment.113 With
respect to the right to travel, minors are required by law to obtain a clearance from the Department
of Social Welfare and Development before they can travel to a foreign country by themselves or with
a person other than their parents.114 These limitations demonstrate that the State has broader
authority over the minors' activities than over similar actions of adults, 115 and overall, reflect the
State's general interest in the well-being of minors.116 Thus, the State may impose limitations on the
minors' exercise of rights even though these limitations do not generally apply to adults.
In Bellotti,117 the US Supreme Court identified three (3) justifications for the differential treatment of
the minors' constitutional rights. These are:first, the peculiar vulnerability of
children; second, their inability to make critical decisions in an informed and mature
manner; and third, the importance of the parental role in child rearing:118
[On the first reason,] our cases show that although children generally are protected by the same
constitutional guarantees against governmental deprivations as are adults, the State is entitled to
adjust its legal system to account for children's vulnerabilityand their needs for 'concern,
...sympathy, and ... paternal attention. x x x.
[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the
formative years of childhood and adolescence, minors often lack the experience, perspective,
and judgment to recognize and avoid choices that could be detrimental to them. x x x.
xxxx
[On the third reason,] the guiding role of parents in the upbringing of their children justifies
limitations on the freedoms of minors. The State commonly protects its youth from adverse
governmental action and from their own immaturity by requiring parental consent to or
involvement in important decisions by minors. x x x.
xxxx
x x x Legal restrictions on minors, especially those supportive of the parental role, may be
important to the child's chances for the full growth and maturity that make eventual
participation in a free society meaningful and rewarding.119 (Emphases and underscoring supplied)
Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the heightened
dangers on the streets to minors, as compared to adults:
A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young
people into full maturity as citizens, with all that implies. It may secure this against impeding
restraints and dangers within a broad range of selection. Among evils most appropriate for such
action are the crippling effects of child employment, more especially in public places, and
the possible harms arising from other activities subject to all the diverse influences of the
[streets]. It is too late now to doubt that legislation appropriately designed to reach such evils is
within the state's police power, whether against the parent's claim to control of the child or one that
religious scruples dictate contrary action.
It is true children have rights, in common with older people, in the primary use of highways. But
even in such use streets afford dangers for them not affecting adults. And in other uses,
whether in work or in other things, this difference may be magnified.121 (Emphases and
underscoring supplied)
For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel
rights, provided, they are singled out on reasonable grounds.
Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications.122 The strict scrutiny test applies when a classification either (i)
interferes with the exercise of fundamental rights, including the basic liberties guaranteed under
the Constitution, or (ii) burdens suspect classes.123 The intermediate scrutiny test applies when a
classification does not involve suspect classes or fundamental rights, but requires heightened
scrutiny, such as in classifications based on gender and legitimacy.124 Lastly, the rational basis test
applies to all other subjects not covered by the first two tests. 125
Considering that the right to travel is a fundamental right in our legal system guaranteed no less by
our Constitution, the strict scrutiny test126 is the applicable test.127 At this juncture, it should be
emphasized that minors enjoy the same constitutional rights as adults; the fact that the State has
broader authority over minors than over adults does not trigger the application of a lower level of
scrutiny.128 In Nunez v. City of San Diego (Nunez),129 the US court illumined that:
Although many federal courts have recognized that juvenile curfews implicate the fundamental
rights of minors, the parties dispute whether strict scrutiny review is necessary. The Supreme
Court teaches that rights are no less "fundamental" for minors than adults, but that the
analysis of those rights may differ:
Constitutional rights do not mature and come into being magically only when one attains the state-
defined age of majority. Minors, as well as adults, are protected by the Constitution and
possess constitutional rights. The Court[,] indeed, however, [has long] recognized that the State
has somewhat broader authority to regulate the activities of children than of adults. x x x. Thus,
minors' rights are not coextensive with the rights of adults because the state has a greater range
of interests that justify the infringement of minors' rights.
The Supreme Court has articulated three specific factors that, when applicable, warrant differential
analysis of the constitutional rights of minors and adults: x x x. The Bellottitest [however] does
not establish a lower level of scrutiny for the constitutional rights of minors in the context of
a juvenile curfew. Rather, the Bellotti framework enables courts to determine whether the state
has a compelling state interest justifying greater restrictions on minors than on adults. x x x.
x x x Although the state may have a compelling interest in regulating minors differently than
adults, we do not believe that [a] lesser degree of scrutiny is appropriate to review burdens
on minors' fundamental rights. x x x.
Accordingly, we apply strict scrutiny to our review of the ordinance. x x x. 130 (Emphases supplied)
The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances
of minors as enumerated in Bellotti vis-a-vis the State's duty as parens patriae to protect and
preserve their well-being with the compelling State interests justifying the assailed government act.
Under the strict scrutiny test, a legislative classification that interferes with the exercise of a
fundamental right or operates to the disadvantage of a suspect class is presumed
unconstitutional.131 Thus, the government has the burden of proving that the classification (i)
is necessary to achieve a compelling State interest, and (ii) is the least restrictive means to
protect such interest or the means chosen is narrowly tailored to accomplish the interest.132
a. Compelling State Interest.
Jurisprudence holds that compelling State interests include constitutionally declared
policies.133This Court has ruled that children's welfare and the State's mandate to protect and
care for them as parens patriae constitute compelling interests to justify regulations by the
State.134 It is akin to the paramount interest of the state for which some individual liberties must
give way.135 As explained in Nunez, the Bellotti framework shows that the State has a compelling
interest in imposing greater restrictions on minors than on adults. The limitations on minors under
Philippine laws also highlight this compelling interest of the State to protect and care for their
welfare.
In this case, respondents have sufficiently established that the ultimate objective of the Curfew
Ordinances is to keep unsupervised minors during the late hours of night time off of public areas, so
as to reduce - if not totally eliminate - their exposure to potential harm, and to insulate them against
criminal pressure and influences which may even include themselves. As denoted in the "whereas
clauses" of the Quezon City Ordinance, the State, in imposing nocturnal curfews on minors, criminal influences,the City was directly advancing its first objective of reducing juvenile
recognizes that: violence and crime.138 (Emphases and underscoring supplied; citations omitted)

[b] x x x children, particularly the minors, appear to be neglected of their proper care and guidance, Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and Manila
education, and moral development, which [lead] them into exploitation, drug addiction, and become presented statistical data in their respective pleadings showing the alarming prevalence of crimes
vulnerable to and at the risk of committing criminal offenses; involving juveniles, either as victims or perpetrators, in their respective localities. 139

xxxx Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant
to their police power under the general welfare clause.140 In this light, the Court thus finds that the
local governments have not only conveyed but, in fact, attempted to substantiate legitimate
[d] as a consequence, most of minor children become out-of-school youth, unproductive by-
concerns on public welfare, especially with respect to minors. As such, a compelling State
standers, street children, and member of notorious gangs who stay, roam around or meander in
interest exists for the enactment and enforcement of the Curfew Ordinances.
public or private roads, streets or other public places, whether singly or in groups without lawful
purpose or justification;
With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine
if the restrictions set forth in the Curfew Ordinances are narrowly tailored or provide the least
xxxx
restrictive means to address the cited compelling State interest - the second requirement of the
strict scrutiny test.
[f] reports of barangay officials and law enforcement agencies reveal that minor children roaming
around, loitering or wandering in the evening are the frequent personalities involved in various
b. Least Restrictive Means/ Narrowly Drawn.
infractions of city ordinances and national laws;

The second requirement of the strict scrutiny test stems from the fundamental premise that citizens
[g] it is necessary in the interest of public order and safety to regulate the movement of minor
should not be hampered from pursuing legitimate activities in the exercise of their constitutional
children during night time by setting disciplinary hours, protect them from neglect, abuse or cruelty
rights. While rights may be restricted, the restrictions must be minimal or only to the extent
and exploitation, and other conditions prejudicial or detrimental to their development;
necessary to achieve the purpose or to address the State's compelling interest. When it is possible
for governmental regulations to be more narrowly drawn to avoid conflicts with
[h] to strengthen and support parental control on these minor children, there is a need to put a constitutional rights, then they must be so narrowly drawn.141
restraint on the tendency of growing number of youth spending their nocturnal activities wastefully,
especially in the face of the unabated rise of criminality and to ensure that the dissident elements of
Although treated differently from adults, the foregoing standard applies to regulations on minors as
society are not provided with potent avenues for furthering their nefarious activities[.] 136
they are still accorded the freedom to participate in any legitimate activity, whether it be social,
religious, or civic.142 Thus, in the present case, each of the ordinances must be narrowly tailored as
The US court's judicial demeanor in Schleifer,137 as regards the information gathered by the City to ensure minimal constraint not only on the minors' right to travel but also on their other
Council to support its passage of the curfew ordinance subject of that case, may serve as a guidepost constitutional rights.143
to our own treatment of the present case. Significantly, in Schleifer, the US court recognized the
entitlement of elected bodies to implement policies for a safer community, in relation to the
In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for not being
proclivity of children to make dangerous and potentially life-shaping decisions when left
narrowly drawn, resulting in unnecessary curtailment of minors' rights to freely exercise their
unsupervised during the late hours of night:
religion and to free speech.145 It observed that:

Charlottesville was constitutionally justified in believing that its curfew would materially assist its
The ordinance prohibits the older minor from attending alone Christmas Eve Midnight Mass
first stated interest—that of reducing juvenile violence and crime. The City Council acted on the
at the local Roman Catholic Church or Christmas Eve services at the various local Protestant
basis of information from many sources, including records from Charlottesville's police department,
Churches. It would likewise prohibit them from attending the New [Year's] Eve watch services at
a survey of public opinion, news reports, data from the United States Department of Justice, national
the various churches. Likewise it would prohibit grandparents, uncles, aunts or adult brothers and
crime reports, and police reports from other localities. On the basis of such evidence, elected
sisters from taking their minor relatives of any age to the above mentioned services. x x x.
bodies are entitled to conclude that keeping unsupervised juveniles off the streets late at
night will make for a safer community. The same streets may have a more volatile and less
wholesome character at night than during the day. Alone on the streets at night children face xxxx
a series of dangerous and potentially life-shaping decisions. Drug dealers may lure them to use
narcotics or aid in their sale. Gangs may pressure them into membership or participation in
Under the ordinance, during nine months of the year a minor could not even attend the city
violence. "[D]uring the formative years of childhood and adolescence, minors often lack the
council meetings if they ran past 10:30 (which they frequently do) to express his views on the
experience, perspective, and judgment to recognize and avoid choices that could be detrimental to
necessity to repeal the curfew ordinance, clearly a deprivation of his First Amendment right to
them." Those who succumb to these criminal influences at an early age may persist in their
freedom of speech.
criminal conduct as adults. Whether we as judges subscribe to these theories is beside the point.
Those elected officials with their finger on the pulse of their home community clearly did. In
attempting to reduce through its curfew the opportunities for children to come into contact with xxxx
[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a] very
narrowly drawn ordinance of many pages with eleven exceptions and was very carefully drafted in
an attempt to pass constitutional muster. It specifically excepted [the] exercise of First
Amendment rights, travel in a motor vehicle and returning home by a direct route from
religious, school, or voluntary association activities.(Emphases supplied)
After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the
Quezon City Ordinance meets the above-discussed requirement, while the Manila and Navotas
Ordinances do not.
The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew, namely: (a)
minors accompanied by their parents, family members of legal age, or guardian; (b) those running
lawful errands such as buying of medicines, using of telecommunication facilities for emergency
purposes and the like; (c) night school students and those who, by virtue of their employment, are
required in the streets or outside their residence after 10:00 p.m.; and (d) those working at night.146
For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night classes;
(b) those working at night; (c) those who attended a school or church activity, in coordination with a
specific barangay office; (d) those traveling towards home during the curfew hours; (e) those
running errands under the supervision of their parents, guardians, or persons of legal age having
authority over them; (f) those involved in accidents, calamities, and the like. It also exempts minors
from the curfew during these specific occasions: Christmas eve, Christmas day, New Year's eve, New
Year's day, the night before the barangay fiesta, the day of the fiesta, All Saints' and All Souls' Day,
Holy Thursday, Good Friday, Black Saturday, and Easter Sunday.147
This Court observes that these two ordinances are not narrowly drawn in that their exceptions are
inadequate and therefore, run the risk of overly restricting the minors' fundamental freedoms. To be
fair, both ordinances protect the rights to education, to gainful employment, and to travel at night
from school or work.148 However, even with those safeguards, the Navotas Ordinance and, to a
greater extent, the Manila Ordinance still do not account for the reasonable exercise of the minors'
rights of association, free exercise of religion, rights to peaceably assemble, and of free expression,
among others.
The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon
protected liberties. The Navotas Ordinance is apparently more protective of constitutional rights
than the Manila Ordinance; nonetheless, it still provides insufficient safeguards as discussed in
detail below:
First, although it allows minors to engage in school or church activities, it hinders them from
engaging in legitimate non-school or non-church activities in the streets or going to and from such
activities; thus, their freedom of association is effectively curtailed. It bears stressing that
participation in legitimate activities of organizations, other than school or church, also contributes
to the minors' social, emotional, and intellectual development, yet, such participation is not
exempted under the Navotas Ordinance.
Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and
Christmas day, it effectively prohibits minors from attending traditional religious activities (such
as simbang gabi) at night without accompanying adults, similar to the scenario depicted
in Mosier.149 This legitimate activity done pursuant to the minors' right to freely exercise their
religion is therefore effectively curtailed.
Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political
rallies or attend city council meetings to voice out their concerns in line with their right to
peaceably assemble and to free expression.
Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside
curfew hours, but the Court finds no reason to prohibit them from participating in these legitimate
activities during curfew hours. Such proscription does not advance the State's compelling interest to
protect minors from the dangers of the streets at night, such as becoming prey or instruments of
criminal activity. These legitimate activities are merely hindered without any reasonable relation to
the State's interest; hence, the Navotas Ordinance is not narrowly drawn. More so, the Manila
Ordinance, with its limited exceptions, is also not narrowly drawn.
In sum, the Manila and Navotas Ordinances should be completely stricken down since their
exceptions, which are essentially determinative of the scope and breadth of the curfew regulations,
are inadequate to ensure protection of the above-mentioned fundamental rights. While some
provisions may be valid, the same are merely ancillary thereto; as such, they cannot subsist
independently despite the presence150 of any separability clause.151
The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it sufficiently
safeguards the minors' constitutional rights. It provides the following exceptions:
Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by
the provisions of this ordinance;
(a) Those accompanied by their parents or guardian;
(b) Those on their way to or from a party, graduation ceremony, religious mass, and/or
other extra-curricular activities of their school or organization wherein their
attendance are required or otherwise indispensable, or when such minors are out and
unable to go home early due to circumstances beyond their control as verified by the
proper authorities concerned; and
(c) Those attending to, or in experience of, an emergency situation such as conflagration,
earthquake, hospitalization, road accident, law enforcers encounter, and similar incidents[;]
(d) When the minor is engaged in an authorized employment activity, or going to or returning
home from the same place of employment activity without any detour or stop;
(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in no
violation of this Ordinance;
(f) When the minor is involved in an emergency;
(g) When the minor is out of his/her residence attending an official school, religious,
recreational, educational, social, communitv or other similar private activity
sponsored by the city, barangay, school, or other similar private civic/religious
organization/group (recognized by the community) that supervises the activity or
when the minor is going to or returning home from such activity, without any detour
or stop; and

(h) When the minor can present papers certifying that he/she is a student and was dismissed
from his/her class/es in the evening or that he/she is a working student. 152 (Emphases and
underscoring supplied)
As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance
is more narrowly drawn to sufficiently protect the minors' rights of association, free exercise of
religion, travel, to peaceably assemble, and of free expression.
Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the protection of
these aforementioned rights. These items uphold the right of association by enabling minors to
attend both official and extra-curricular activities not only of their school or church but also
of other legitimate organizations. The rights to peaceably assemble and of free expression
are also covered by these items given that the minors' attendance in the official activities of
civic or religious organizations are allowed during the curfew hours. Unlike in the Navotas
Ordinance, the right to the free exercise of religion is sufficiently safeguarded in the Quezon City
Ordinance by exempting attendance at religious masses even during curfew hours. In relation
to their right to travel, the ordinance allows the minor-participants to move to and from the
places where these activities are held. Thus, with these numerous exceptions, the Quezon City
Ordinance, in truth, only prohibits unsupervised activities that hardly contribute to the well-
being of minors who publicly loaf and loiter within the locality at a time where danger is
perceivably more prominent.
To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run
lawful errands or engage in legitimate activities during the night, notwithstanding curfew hours. As
astutely observed by Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F.
Leonen during the deliberations on this case, parental permission is implicitly considered as an
exception found in Section 4, item (a) of the Quezon City Ordinance, i.e., "[t]hose accompanied by
their parents or guardian", as accompaniment should be understood not only in its actual but also in
its constructive sense. As the Court sees it, this should be the reasonable construction of this
exception so as to reconcile the juvenile curfew measure with the basic premise that State
interference is not superior but only complementary to parental supervision. After all, as the
Constitution itself prescribes, the parents' right to rear their children is not only natural but
primary.
Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is
dealing with the welfare of minors who are presumed by law to be incapable of giving proper
consent due to their incapability to fully understand the import and consequences of their actions.
In one case it was observed that:
A child cannot give consent to a contract under our civil laws. This is on the rationale that she can
easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or
import of her actions. The State, as parens patriae, is under the obligation to minimize the risk of
harm to those who, because of their minority, are as yet unable to take care of themselves fully.
Those of tender years deserve its protection.153
Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and
balancing the same against the State's compelling interest to promote juvenile safety and prevent
juvenile crime, this Court finds that the curfew imposed under the Quezon City Ordinance is
reasonably justified with its narrowly drawn exceptions and hence, constitutional. Needless to say,
these exceptions are in no way limited or restricted, as the State, in accordance with the lawful
exercise of its police power, is not precluded from crafting, adding, or modifying exceptions in
similar laws/ordinances for as long as the regulation, overall, passes the parameters of scrutiny as
applied in this case.
D. Penal Provisions of the Manila Ordinance.
Going back to the Manila Ordinance, this Court deems it proper - as it was raised- to further discuss
the validity of its penal provisions in relation to RA 9344, as amended.
To recount, the Quezon City Ordinance, while penalizing the parentis or guardian under Section 8
thereof,154 does not impose any penalty on the minors. For its part, the Navotas Ordinance requires
the minor, along with his or her parent/s or guardian/s, to render social civic duty and community
service either in lieu of - should the parent/s or guardian/s of the minor be unable to pay the fine
imposed - or in addition to the fine imposed therein. 155Meanwhile, the Manila Ordinance
imposed various sanctions to the minor based on the age and frequency of violations, to wit:
SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance shall be
sanctioned/punished as follows:
(a) If the offender is Fifteen (15) years of age and below, the sanction shall consist of a
REPRIMAND for the youth offender and ADMONITION to the offender's parent, guardian or
person exercising parental authority.
(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of age, the
sanction/penalty shall be:
1. For the FIRST OFFENSE, Reprimand and Admonition;
2. For the SECOND OFFENSE, Reprimand and Admonition, and a
warning about the legal impostitions in case of a third and
subsequent violation; and
3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of
one (1) day to ten (10) days, or a Fine of TWO THOUSAND
PESOS (Php2,000.00), or both at the discretion of the
Court, PROVIDED, That the complaint shall be filed by the Punong
Barangay with the office of the City Prosecutor.156 (Emphases and
underscoring supplied).
Thus springs the question of whether local governments could validly impose on minors these
sanctions - i.e., (a) community service; (b) reprimand and admonition; (c) fine; and (d)
imprisonment. Pertinently, Sections 57 and 57-A of RA 9344, as amended, prohibit the
imposition of penalties on minors for status offenses such as curfew violations, viz.:
SEC. 57. Status Offenses. — Any conduct not considered an offense or not penalized if
committed by an adult shall not be considered an offense and shall not be punished if
committed by a child.
SEC. 57-A. Violations of Local Ordinances. — Ordinances enacted by local governments
concerning juvenile status offenses such as, but not limited to, curfew violations, truancy,
parental disobedience, anti-smoking and anti-drinking laws, as well as light offenses and
misdemeanors against public order or safety such as, but not limited to, disorderly conduct, public
scandal, harassment, drunkenness, public intoxication, criminal nuisance, vandalism, gambling,
mendicancy, littering, public urination, and trespassing, shall be for the protection of children. No
penalty shall be imposed on children for said violations, and they shall instead be brought to
their residence or to any barangay official at the barangay hall to be released to the custody of their
parents. Appropriate intervention programs shall be provided for in such ordinances. The
child shall also be recorded as a "child at risk" and not as a "child in conflict with the law." The
ordinance shall also provide for intervention programs, such as counseling, attendance in group
activities for children, and for the parents, attendance in parenting education seminars. (Emphases
and underscoring supplied.)
To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of
minors, when the similar conduct of adults are not considered as an offense or penalized (i.e., status
offenses). Instead, what they prohibit is the imposition of penalties on minors for violations of these
regulations. Consequently, the enactment of curfew ordinances on minors, without penalizing them
for violations thereof, is not violative of Section 57-A.
"Penalty" 157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of
imprisonment or fine";158 "[p]unishment imposed by lawful authority upon a person who commits a
deliberate or negligent act."159 Punishment, in turn, is defined as "[a] sanction - such as fine, penalty,
confinement, or loss of property, right, or privilege - assessed against a person who has violated the
law."160
The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor
in violation of the regulations are without legal consequences. Section 57-A thereof empowers local
governments to adopt appropriate intervention programs, such as community-based
programs161recognized under Section 54162 of the same law.
In this regard, requiring the minor to perform community service is a valid form of intervention
program that a local government (such as Navotas City in this case) could appropriately adopt in an
ordinance to promote the welfare of minors. For one, the community service programs provide
minors an alternative mode of rehabilitation as they promote accountability for their delinquent
acts without the moral and social stigma caused by jail detention. In the same light, these programs
help inculcate discipline and compliance with the law and legal orders. More importantly, they give
them the opportunity to become productive members of society and thereby promote their
integration to and solidarity with their community.
The sanction of admonition imposed by the City of Manila is likewise consistent with Sections 57
and 57-A of RA 9344 as it is merely a formal way of giving warnings and expressing disapproval to
the minor's misdemeanor. Admonition is generally defined as a "gentle or friendly reproof' or
"counsel or warning against fault or oversight."163 The Black's Law Dictionary defines admonition as
"[a]n authoritatively issued warning or censure";164 while the Philippine Law Dictionary defines it as
a "gentle or friendly reproof, a mild rebuke, warning or reminder, [counseling], on a fault, error or
oversight, an expression of authoritative advice or warning."165 Notably, the Revised Rules on
Administrative Cases in the Civil Service (RRACCS) and our jurisprudence in administrative cases
explicitly declare that "a warning or admonition shall not be considered a penalty." 166
In other words, the disciplinary measures of community-based programs and admonition are
clearly not penalties - as they are not punitive in nature - and are generally less intrusive on the
rights and conduct of the minor. To be clear, their objectives are to formally inform and educate the
minor, and for the latter to understand, what actions must be avoided so as to aid him in his future
conduct.
A different conclusion, however, is reached with regard to reprimand and fines and/or
imprisonment imposed by the City of Manila on the minor. Reprimand is generally defined as "a
severe or formal reproof."167 The Black's Law Dictionary defines it as "a mild form of lawyer
discipline that does not restrict the lawyer's ability to practice law";168 while the Philippine Law
Dictionary defines it as a "public and formal censure or severe reproof, administered to a person in
fault by his superior officer or body to which he belongs. It is more than just a warning or
admonition."169 In other words, reprimand is a formal and public pronouncement made to denounce
the error or violation committed, to sharply criticize and rebuke the erring individual, and to sternly
warn the erring individual including the public against repeating or committing the same, and thus,
may unwittingly subject the erring individual or violator to unwarranted censure or sharp
disapproval from others. In fact, the RRACCS and our jurisprudence explicitly indicate that
reprimand is a penalty,170 hence, prohibited by Section 57-A of RA 9344, as amended.
Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in
our various criminal and administrative laws and jurisprudence - that Section 57-A of RA 9344, as
amended, evidently prohibits.
As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states that
"[n]o penalty shall be imposed on children for x x x violations [of] juvenile status offenses]."
Thus, for imposing the sanctions of reprimand, fine, and/or imprisonment on minors for curfew
violations, portions of Section 4 of the Manila Ordinance directly and irreconcilably conflict with the
clear language of Section 57-A of RA 9344, as amended, and hence, invalid. On the other hand, the
impositions of community service programs and admonition on the minors are allowed as they do
not constitute penalties.
CONCLUSION
In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the
strict scrutiny test - that is, that the State has sufficiently shown a compelling interest to promote
juvenile safety and prevent juvenile crime in the concerned localities, only the Quezon City
Ordinance has passed the second prong of the strict scrutiny test, as it is the only issuance out of the
three which provides for the least restrictive means to achieve this interest. In particular, the
Quezon City Ordinance provides for adequate exceptions that enable minors to freely exercise their
fundamental rights during the prescribed curfew hours, and therefore, narrowly drawn to achieve
the State's purpose. Section 4 (a) of the said ordinance, i.e., "[t]hose accompanied by their parents or
guardian", has also been construed to include parental permission as a constructive form of
accompaniment and hence, an allowable exception to the curfew measure; the manner of
enforcement, however, is left to the discretion of the local government unit.
In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void,
while the Quezon City Ordinance is declared as constitutional and thus, valid in accordance with this
Decision.
For another, the Court has determined that the Manila Ordinance's penal provisions imposing
reprimand and fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended.
Hence, following the rule that ordinances should always conform with the law, these provisions
must be struck down as invalid.
WHEREFORE, the petition is PARTLY GRANTED. The Court hereby declares Ordinance No. 8046,
issued by the local government of the City of Manila, and Pambayang Ordinansa Blg. No. 99-02, as
amended by Pambayang Ordinansa Blg. 2002-13 issued by the local government of Navotas
City, UNCONSTITUTIONAL and, thus, NULL and VOID; while Ordinance No. SP-2301, Series of
2014, issued by the local government of the Quezon City is declared CONSTITUTIONAL and,
thus,VALID in accordance with this Decision.
SO ORDERED.
 G.R. No. 93028 July 29, 1994 conducted the custodial investigation of appellant wherein the latter was apprised of his rights to
remain silent, to information and to counsel. Appellant, however, orally waived his right to
counsel. 6chanrobles virtual law library
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARTIN SIMON y SUNGA, Respondent.

Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated"
The Solicitor General for plaintiff-appellee.chanrobles virtual law library
which appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves
in his possession. Pejoro likewise informed the court below that, originally, what he placed on the
Ricardo M.Sampang for accused-appellant. receipt was that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez
and Villaruz corrected his entry by telling him to put "two", instead of "one" and "40", instead of
"20". He agreed to the correction since they were the ones who were personally and directly
REGALADO, J.:
involved in the purchase of the marijuana and the arrest of appellant. 7chanrobles virtual law library

Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after
violation of Section 4, Article II of Republic Act
the latter's apprehension, and the results were practically normal except for his relatively high
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment
blood pressure. The doctor also did not find any trace of physical injury on the person of appellant.
alleging that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four
The next day, he again examined appellant due to the latter's complaint of
tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in consideration of the sum
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a
of P40.00, which tea bags, when subjected to laboratory examination, were found positive for
history of peptic ulcer, which causes him to experience abdominal pain and consequently vomit
marijuana. 1chanrobles virtual law library
blood. In the afternoon, appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal. 8chanrobles virtual law library
Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following
his escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained, 2he
As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day
pleaded not guilty. He voluntarily waived his right to a pre-trial conference, 3after which trial on the
in question, at around 4:30 p.m., he was watching television with the members of his family in their
merits ensued and was duly concluded.
house when three persons, whom he had never met before suddenly arrived. Relying on the
assurance that they would just inquire about something from him at their detachment, appellant
Ichanrobles virtual law library boarded a jeep with them. He was told that they were going to Camp Olivas, but he later noticed that
they were taking a different route. While on board, he was told that he was a pusher so he
attempted to alight from the jeep but he was handcuffed instead. When they finally reached the
The evidence on record shows that a confidential informant, later identified as a NARCOM operative,
camp, he was ordered to sign some papers and, when he refused, he was boxed in the stomach eight
informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a
or nine times by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding
documents presented to him. He denied knowledge of the P20.00 or the dried marijuana leaves, and
Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of
insisted that the twenty-peso bill came from the pocket of Pejoro. Moreover, the reason why he
Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and
vomited blood was because of the blows he suffered at the hands of Pejoro. He admitted having
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante,
escaped from the NARCOM office but claimed that he did so since he could no longer endure the
the team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the
maltreatment to which he was being subjected. After escaping, he proceeded to the house of his
police authorities and barangay officers thereof. When they reached the place, the confidential
uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30 or 7:30 p.m.
informer pointed out appellant to Lopez who consequently approached appellant and asked him if
There, he consulted a quack doctor and, later, he was accompanied by his sister to the Romana
he had marijuana. Appellant answered in the affirmative and Lopez offered to buy two tea bags.
Pangan District Hospital at Floridablanca, Pampanga where he was confined for three
Appellant then left and, upon returning shortly thereafter, handed to Lopez two marijuana tea bags
days. 9chanrobles virtual law library
and Lopez gave him the marked money amounting to P40.00 as payment. Lopez then scratched his
head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at
the team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested Floridablanca, Pampanga after undergoing abdominal pain and vomiting of blood. He likewise
appellant. The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp confirmed that appellant had been suffering from peptic ulcer even before the latter's arrest. 10Also,
Olivas on board a jeep and he was placed under custodial investigation, with Sgt. Pejoro as the Dr. Evelyn Gomez-Aguas, a resident physician of Romana Pangan District Hospital, declared that she
investigator. 4chanrobles virtual law library treated appellant for three days due to abdominal pain, but her examination revealed that the cause
for this ailment was appellant's peptic ulcer. She did not see any sign of slight or serious external
injury, abrasion or contusion on his body. 11chanrobles virtual law library
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between
Lopez and the appellant. He also averred that he was the one who confiscated the marijuana and
took the marked money from appellant. 5chanrobles virtual law library On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and
sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos
Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
and to pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated
stationed farthest from the rest of the other members, that is, around two hundred meters away
in favor of the Government. 12chanrobles virtual law library
from his companions. He did not actually see the sale that transpired between Lopez and appellant
but he saw his teammates accosting appellant after the latter's arrest. He was likewise the one who
Appellant now prays the Court to reverse the aforementioned judgment of the lower court,
contending in his assignment of errors that the latter erred in (1) not upholding his defense of
"frame-up", (2) not declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in
evidence, and (3) convicting him of a violation of the Dangerous Drugs Act. 13chanrobles virtual law
library
At the outset, it should be noted that while the People's real theory and evidence is to the effect the
appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags
were merely confiscated subsequently from his possession, 14the latter not being in any way
connected with the sale, the information alleges that he sold and delivered four tea bags of
marijuana dried leaves. 15In view thereof, the issue presented for resolution in this appeal is merely
the act of selling the two tea bags allegedly committed by appellant, and does not include the
disparate and distinct issue of illegal possession of the other two tea bags which separate offense is
not charged herein. 16chanrobles virtual law library
To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
established. 17To sell means to give, whether for money or any other material consideration. 18It
must, therefore, be established beyond doubt that appellant actually sold and delivered two tea bags
of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-
peso bills.chanroblesvirtualawlibrarychanrobles virtual law library
After an assiduous review and calibration of the evidence adduced by both parties, we are morally
certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs.
The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988,
did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as
to how the sale took place and his testimony was amply corroborated by his teammates. As between
the straightforward, positive and corroborated testimony of Lopez and the bare denials and
negative testimony of appellant, the former undeniably deserves greater weight and is more entitled
to credence.chanroblesvirtualawlibrarychanrobles virtual law library
We are aware that the practice of entrapping drug traffickers through the utilization of poseur-
buyers is susceptible to mistake, harassment, extortion and abuse. 19Nonetheless, such causes for
judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest
were not effected in a haphazard way, for a surveillance was conducted by the team before the
buy-bust operation was effected. 20No ill motive was or could be attributed to them, aside from the
fact that they are presumed to have regularly performed their official duty. 21Such lack of dubious
motive coupled with the presumption of regularity in the performance of official duty, as well as the
findings of the trial court on the credibility of witnesses, should prevail over the self-serving and
uncorroborated claim of appellant of having been framed, 22erected as it is upon the mere shifting
sands of an alibi. To top it all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to
controvert the charge, he does not appear to have plausibly done
so.chanroblesvirtualawlibrarychanrobles virtual law library
When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
Salangad, a forensic chemist therein, 23confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had a total weight of
3.8 grams of marijuana. 24Thus, the corpus delicti of the crime had been fully proved with certainty
and conclusiveness. 25chanrobles virtual law library
Appellant would want to make capital of the alleged inconsistencies and improbabilities in the
testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really
confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had
nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property
Seized/Confiscated," he signed it as the one who seized the same. 26chanrobles virtual law library
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really
matter since such is not an element of the offense with which appellant is charged. What is
unmistakably clear is that the marijuana was confiscated from the possession of appellant. Even,
assuming arguendo that the prosecution committed an error on who actually seized the marijuana
from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither
impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses'
honesty. 27Besides, there was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in thephysical taking of the drug from the person of appellant, but he
participated in the legal seizure or confiscation thereof as the investigator of their
unit.chanroblesvirtualawlibrarychanrobles virtual law library
Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him
were not powdered for finger-printing purposes contrary to the normal procedure in buy-bust
operations. 28This omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his
testimony, as follows:
Q: Is it the standard operating procedure of your unit that in conducting such operation you do not
anymore provide a powder (sic) on the object so as to determine the thumbmark or identity of the
persons taking hold of the object?chanrobles virtual law library
A: We were not able to put powder on these denominations because we are lacking that kind of
material in our office since that item can be purchased only in Manila and only few are producing
that, sir.
xxx xxx xxx
Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as the office of
NICA?chanrobles virtual law library
A: Our office is only adjacent to those offices but we cannot make a request for that powder because
they, themselves, are using that in their own work, sir. 29
The foregoing explanation aside, we agree that the failure to mark the money bills used for
entrapment purposes can under no mode of rationalization be fatal to the case of the prosecution
because the Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions." 30The dusting of said bills with
phosphorescent powder is only an evidentiary technique for identification purposes, which
identification can be supplied by other species of evidence.chanroblesvirtualawlibrarychanrobles
virtual law library
Again, appellant contends that there was neither a relative of his nor any barangay official or civilian
to witness the seizure. He decries the lack of pictures taken before, during and after his arrest.
Moreover, he was not reported to or booked in the custody of any barangay official or police
authorities. 31These are absurd disputations. No law or jurisprudence requires that an arrest or
seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be
accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant
inflagrante delicto, they were not only authorized but were also under the obligation to effect a
warrantless arrest and seizure.chanroblesvirtualawlibrarychanrobles virtual law library
Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
connection with his apprehension. Said Booking Sheet and Arrest Report 32states, inter alia, that
"suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the
confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was
affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore
mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills
from him. 33chanrobles virtual law library
However, we find and hereby declare the aforementioned exhibits inadmissible in evidence.
Appellant's conformance to these documents are declarations against interest and tacit admissions
of the crime charged. They were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the records to show that he
was assisted by counsel. 34Although appellant manifested during the custodial investigation that he
waived his right to counsel, the waiver was not made in writing and in the presence of
counsel, 35hence whatever incriminatory admission or confession may be extracted from him, either
verbally or in writing, is not allowable in evidence. 36Besides, the arrest report is self-serving and
hearsay and can easily be concocted to implicate a suspect.chanroblesvirtualawlibrarychanrobles
virtual law library
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be
extricated from his predicament since his criminal participation in the illegal sale of marijuana has
been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires
merely the consummation of the selling transaction 37which happens the moment the buyer receives
the drug from the seller. 38In the present case, and in light of the preceding discussion, this sale has
been ascertained beyond any peradventure of doubt.chanroblesvirtualawlibrarychanrobles virtual
law library
Appellant then asseverates that it is improbable that he would sell marijuana to a total
stranger. 39We take this opportunity to once again reiterate the doctrinal rule that drug-pushing,
when done on a small scale as in this case, belongs to that class of crimes that may be committed at
any time and in any place. 40It is not contrary to human experience for a drug pusher to sell to a total
stranger, 41for what matters is not an existing familiarity between the buyer and seller but their
agreement and the acts constituting the sale and delivery of the marijuana leaves. 42While there may
be instances where such sale could be improbable, taking into consideration the diverse
circumstances of person, time and place, as well as the incredibility of how the accused supposedly
acted on that occasion, we can safely say that those exceptional particulars are not present in this
case.chanroblesvirtualawlibrarychanrobles virtual law library
Finally, appellant contends that he was subjected to physical and mental torture by the arresting
officers which caused him to escape from Camp Olivas the night he was placed under custody. 43This
he asserts to support his explanation as to how his signatures on the documents earlier discussed
were supposedly obtained by force and coercion.chanroblesvirtualawlibrarychanrobles virtual law
library
The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it
must not only proceed from the mouth of a credible witness but must be credible in itself such as
the common experience and observation of mankind can approve as probable under the
circumstances. 44The evidence on record is bereft of any support for appellant's allegation of
maltreatment. Two doctors, one for the prosecution 45and the other for the defense, 46testified on
the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person
of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which
he had been suffering even before his arrest. 47His own brother even corroborated that fact, saying
that appellant has had a history of bleeding peptic ulcer. 48chanrobles virtual law library
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason
whatsoever for not divulging the same to his brother who went to see him at the camp after his
arrest and during his detention there. 49Significantly, he also did not even report the matter to the
authorities nor file appropriate charges against the alleged malefactors despite the opportunity to
do so 50and with the legal services of counsel being available to him. Such omissions funnel down to
the conclusion that appellant's story is a pure fabrication.chanroblesvirtualawlibrarychanrobles
virtual law library
These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless
and premeditated for the NARCOM agents were determined to arrest him at all
costs. 51Premeditated or not, appellant's arrest was only the culmination, the final act needed for his
isolation from society and it was providential that it came about after he was caught in the very act
of illicit trade of prohibited drugs. Accordingly, this opinion could have concluded on a note of
affirmance of the judgment of the trial court. However, Republic Act No. 6425, as amended, was
further amended by Republic Act No. 7659 effective December 31, 1993, 52which supervenience
necessarily affects the original disposition of this case and entails additional questions of law which
we shall now resolve.
IIchanrobles virtual law library
The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are
to this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, are hereby amended to read as follows:
xxx xxx xxxchanrobles virtual law library
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The
penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos shall be imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited
drug, or shall act as a broker in any of such transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs
Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the
Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A,
15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the
following quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range
fromprision correccional to reclusion perpetua depending upon the quantity.
1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana
with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of
those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic
Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder,
pursuant to Article 22 of the Revised Penal Code.chanroblesvirtualawlibrarychanrobles virtual law
library
Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
substitution of the previous Articles 190 to 194 of the Revised Penal Code, 53it has long been settled
that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and
shall be given retrospective effect to crimes punished by special laws. 54The execution in said article
would not apply to those convicted of drug offenses since habitual delinquency refers to convictions
for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa
or falsification. 55chanrobles virtual law library
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the
present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant.
That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal
laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if
the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the
accused has applied for it, just as would also all provisions relating to the prescription of the crime
and the penalty.
If the judgment which could be affected and modified by the reduced penalties provided in Republic
Act No. 7659 has already become final and executory or the accused is serving sentence thereunder,
then practice, procedure and pragmatic considerations would warrant and necessitate the matter
being brought to the judicial authorities for relief under a writ of habeas corpus. 56chanrobles virtual
law library
2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial
reconciliation and craftsmanship.chanroblesvirtualawlibrarychanrobles virtual law library
As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes
the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00
upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in
transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of
the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana;
otherwise, if the quantity involved is less, the penalty shall range from prision
correccional to reclusion perpetua depending upon the
quantity.chanroblesvirtualawlibrarychanrobles virtual law library
In other words, there is here an overlapping error in the provisions on the penalty of reclusion
perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the
marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana
involved is 750 grams or more. The same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting
provisions in order to give effect to the whole law, 57we hereby hold that the penalty to be imposed
where the quantity of the drugs involved is less than the quantities stated in the first paragraph
shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also
concordant with the fundamental rule in criminal law that all doubts should be construed in a
manner favorable to the accused.chanroblesvirtualawlibrarychanrobles virtual law library
3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the
imposable range of penalties under the second paragraph of Section 20, as now modified, the law
provides that the penalty shall be taken from said range "depending upon the quantity" of the drug
involved in the case. The penalty in said second paragraph constitutes a complex one composed of
three distinct penalties, that is,prision correccional, prision mayor, and reclusion temporal. In such a
situation, the Code provides that each one shall form a period, with the lightest of them being the
minimum, the next as the medium, and the most severe as the maximum period. 58chanrobles virtual
law library
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is
its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the
drug subject of the criminal transaction. 59Accordingly, by way of exception to Article 77 of the Code
and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid
component penalties shall be considered as a principal imposable penalty depending on the
quantity of the drug involved. Thereby, the modifying circumstances will not altogether be
disregarded. Since each component penalty of the total complex penalty will have to be imposed
separately as determined by the quantity of the drug involved, then the modifying circumstances
can be used to fix the proper period of that component penalty, as shall hereafter be
explained.chanroblesvirtualawlibrarychanrobles virtual law library
It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid
disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the
drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and
double or treble the same, to be respectively the bases for allocating the penalty proportionately
among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved
is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499
grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the
penalty is reclusion perpetua to death. 60chanrobles virtual law library
Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty
of prision correccional is consequently indicated but, again, another preliminary and cognate issue
has first to be resolved.chanroblesvirtualawlibrarychanrobles virtual law library
4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of and illustrated in the table provided by Article 76
of the Code. The question is whether or not in determining the penalty to be imposed, which is here
to be taken from the penalty of prision correccional, the presence or absence of mitigating,
aggravating or other circumstances modifying criminal liability should be taken into
account.chanroblesvirtualawlibrarychanrobles virtual law library
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for
offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised
Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws involved provided their own
specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special
laws concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose main
function is to determine the period of the penalty in accordance with the rules in Article 64 of the
Code.chanroblesvirtualawlibrarychanrobles virtual law library
This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws,
as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary
application.chanroblesvirtualawlibrarychanrobles virtual law library
The situation, however, is different where although the offense is defined in and ostensibly
punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in
its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would consequently be both illogical and
absurd to posit otherwise. More on this later.chanroblesvirtualawlibrarychanrobles virtual law
library
For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425,
as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period
thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.chanroblesvirtualawlibrarychanrobles virtual law library
5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed
for offenses under special laws would be necessary.chanroblesvirtualawlibrarychanrobles virtual
law library
Originally, those special laws, just as was the conventional practice in the United States but
differently from the penalties provided in our Revised Penal Code and its Spanish origins, provided
for one specific penalty or a range of penalties with definitive durations, such as imprisonment for
one year or for one to five years but without division into periods or any technical statutory
cognomen. This is the special law contemplated in and referred to at the time laws like the
Indeterminate Sentence Law 61were passed during the American
regime.chanroblesvirtualawlibrarychanrobles virtual law library
Subsequently, a different pattern emerged whereby a special law would direct that an offense
thereunder shall be punished under the Revised Penal Code and in the same manner provided
therein. Inceptively, for instance, Commonwealth Act No. 303 62penalizing non-payment of salaries
and wages with the periodicity prescribed therein, provided:
Sec. 4. Failure of the employer to pay his employee or laborer as required by section one of this Act,
shall prima facie be considered a fraud committed by such employer against his employee or laborer
by means of false pretenses similar to those mentioned in article three hundred and fifteen,
paragraph four, sub-paragraph two (a) of the Revised Penal Code and shall bepunished in the same
manner as therein provided. 63chanrobles virtual law library
Thereafter, special laws were enacted where the offenses defined therein were specifically punished
by the penalties as technically named and understood in the Revised Penal Code. These are
exemplified by Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged
from arresto mayor to
death; 64Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto
mayor to prision mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor
may involve prision mayor, reclusion temporal, reclusion perpetua or
death.chanroblesvirtualawlibrarychanrobles virtual law library
Another variant worth mentioning is Republic Act No. 6539
(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8
months and not more than 17 years and 4 months, when committed without violence or
intimidation of persons or force upon things; not less than 17 years and 4 months and not more
than 30 years, when committed with violence against or intimidation of any person, or force upon
things; and life imprisonment to death, when the owner, driver or occupant of the carnapped vehicle
is killed.chanroblesvirtualawlibrarychanrobles virtual law library
With respect to the first example, where the penalties under the special law are different from and
are without reference or relation to those under the Revised Penal Code, there can be no suppletory
effect of the rules for the application of penalties under said Code or by other relevant statutory
provisions based on or applicable only to said rules for felonies under the Code. In this type of
special law, the legislative intendment is clear.chanroblesvirtualawlibrarychanrobles virtual law
library
The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is
true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period
of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty
for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on penalties in the Code,
therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same
formulation.chanroblesvirtualawlibrarychanrobles virtual law library
On the other hand, the rules for the application of penalties and the correlative effects thereof under
the Revised Penal Code, as well as other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are
special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised
Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies
under the Code the corresponding application to said special laws, in the absence of any express or
implicit proscription in these special laws. To hold otherwise would be to sanction an indefensible
judicial truncation of an integrated system of penalties under the Code and its allied legislation,
which could never have been the intendment of Congress.chanroblesvirtualawlibrarychanrobles
virtual law library
In People vs. Macatanda, 65a prosecution under a special law (Presidential Decree No. 533, otherwise
known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64,
paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that -
We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct from and
unrelated to the Revised Penal Code. From the nature of the penalty imposed which is in terms of the
classification and duration of penalties as prescribed in the Revised Penal Code, which is not for
penalties as are ordinarily imposed in special laws, the intent seems clear that P.D. 533 shall be
deemed as an amendment of the Revised Penal Code, with respect to the offense of theft of large
cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such as Article 104 of the
Revised Penal Code . . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis
supplied.)
More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal
Code to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more
recent pronouncement:
. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code shall be
"supplementary" to special laws, this Court held that where the special law expressly grants to the
court discretion in applying the penalty prescribed for the offense, there is no room for the
application of the provisions of the Code . . . .chanroblesvirtualawlibrarychanrobles virtual law
library
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit grant of
discretion to the Court in the application of the penalty prescribed by the law. In such case, the court
must be guided by the rules prescribed by the Revised Penal Code concerning the application of
penalties which distill the "deep legal thought and centuries of experience in the administration of
criminal laws." (Emphasis ours.) 66chanrobles virtual law library
Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties
defined in and constituting integral parts of the three scales of penalties in the Code, 67 with much
more reason should the provisions of said Code on the appreciation and effects of all attendant
modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications
of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they
would result in absurdities as will now be explained.chanroblesvirtualawlibrarychanrobles virtual
law library
While not squarely in issue in this case, but because this aspect is involved in the discussion on the
role of modifying circumstances, we have perforce to lay down the caveat that mitigating
circumstances should be considered and applied only if they affect the periods and the degrees of the
penalties within rational limits.chanroblesvirtualawlibrarychanrobles virtual law library
Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree
of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of
penalties in Article 71, are the stage of execution of the crime and the nature of the participation of
the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary
mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by
one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and
68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5),
67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated
second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could
not have been contemplated by the legislature.chanroblesvirtualawlibrarychanrobles virtual law
library
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or
two degrees, which must each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.chanroblesvirtualawlibrarychanrobles virtual law library
The Court rules, therefore, that while modifying circumstances may be appreciated to determine
the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty
should in any event be prision correccional in order not to depreciate the seriousness of drug
offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be
adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the concern of and is
accordingly addressed to Congress.chanroblesvirtualawlibrarychanrobles virtual law library
6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant committed
any act which would put him within the exceptions to said law and the penalty to be imposed does
not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved
will exceed one year of imprisonment. 68The more important aspect, however, is how the
indeterminate sentence shall be ascertained.chanroblesvirtualawlibrarychanrobles virtual law
library
It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under
the Revised Penal Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." We hold that this quoted portion of the section indubitably refers to an
offense under a special law wherein the penalty imposed was not taken from and is without
reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be
said that the "offense is punished" under that law.chanroblesvirtualawlibrarychanrobles virtual law
library
There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses
under special laws was necessary because of the nature of the former type of penalties under said
laws which were not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to that prescribed by
the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties
in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and
last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is
but an application and is justified under the rule of contemporanea expositio. 69chanrobles virtual
law library
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the maximum of said
sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision
correccional and Article 64 of the Code to impose the same in the medium period. Such offense,
although provided for in a special law, is now in effect punished by and under the Revised Penal Code.
Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1
which directs that "in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be Bellosillo, J., is on leave.
properly imposed under the rules of said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.)chanrobles
chanrobles virtual law library
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chanrobles virtual law library

A divergent pedantic application would not only be out of context but also an admission of the
hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone
only skin-deep in its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Separate Opinions
Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted
of offenses punished with death penalty or life imprisonment," we have held that what is considered
DAVIDE, JR., J., concurring and dissenting:chanrobles virtual law library
is the penalty actually imposed and not the penalty imposable under the law,70and that reclusion
perpetua is likewise embraced therein although what the law states is "life
imprisonment".chanroblesvirtualawlibrarychanrobles virtual law library I am still unable to agree with the view that (a) in appropriate cases where the penalty to be
imposed would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No.
6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the
What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence
Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within
of the principles of literal interpretation, which have been rationalized by comparative decisions of
the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more
this Court; of historical interpretation, as explicated by the antecedents of the law and related
mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating
contemporaneous legislation; and of structural interpretation, considering the interrelation of the
circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking
penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
into account the quantity of the dangerous drugs involved, would be prision correccional.
follows that the minimum of the indeterminate sentence in this case shall be the penalty next
lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in
Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of Ichanrobles virtual law library
interpretation. 71chanrobles virtual law library
The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
The indeterminate Sentence Law is a legal and social measure of compassion, and should be penalties under the Revised Penal Code in their technical terms, hence also their technical
liberally interpreted in favor of the accused.72The "minimum" sentence is merely a period at which, signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve Sentence Law which directs that:
the balance of his sentence outside of his confinement. 73It does not constitute the totality of the
penalty since thereafter he still has to continue serving the rest of his sentence under set conditions.
in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
That minimum is only the period when the convict's eligibility for parole may be considered. In fact,
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term
his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration
of which shall be that which, in view of the attending circumstances, could be properly imposed
may be ordered on legal grounds, even if he has served the minimum
under the rules of the said Code, and the minimum which shall be within the range of the penalty
sentence.chanroblesvirtualawlibrarychanrobles virtual law library
next lower to that prescribed by the Code for the offense.

It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the
benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision
correccional which is the maximum range we have fixed through the application of Articles 61 and
71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at
6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference,
which could thereby even involve only one day, is hardly worth the creation of an overrated tempest
in the judicial teapot.chanroblesvirtualawlibrarychanrobles virtual law library
ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court
a quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION
that he should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months
of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum
thereof.chanroblesvirtualawlibrarychanrobles virtual law library
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.chanroblesvirtualawlibrarychanrobles virtual law library
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses
would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.chanroblesvirtualawlibrarychanrobles virtual law library
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A.
No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into account in the
application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code,
and (2) offenses punished by other laws (or special laws).chanroblesvirtualawlibrarychanrobles
virtual law library
The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof,
which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is
punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of
Book I thereof.chanroblesvirtualawlibrarychanrobles virtual law library
On the other hand, an offense is considered punished under any other law(or special law) if it is not
defined and penalized by the Revised Penal Code but by such other
law.chanroblesvirtualawlibrarychanrobles virtual law library
The Court rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component penalties in the second paragraph
of Section 20 shall each be considered as an independent principal penalty, and that the lowest
penalty should in any event be prision correccional in order to depreciate the seriousness of drug
offenses.

Simply put, this rule would allow the reduction from reclusion
It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
temporal - if it is the penalty to be imposed on the basis of the quantity of the drugs involved - by
penalty therefor are found in the said Code, and it is deemed punished by a special law if its
two degrees, or to prision correccional, if there are two or more mitigating circumstances and no
definition and the penalty therefor are found in the special law. That the latter imports or borrows
aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a
from the Revised Penal Code its nomenclature of penalties does not make an offense in the special
privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under
law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
special law that defines the offense and imposes a penalty therefor, although it adopts the Code's
imposed is prision mayor,regardless of the fact that a reduction by two degrees is proper, it should
nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised
only be reduced by one degree because the rule does not allow a reduction beyond prision
Penal Code can by no means make an offense thereunder an offense "punished or punishable" by
correccional. Finally, if the proper penalty to be imposed isprision correccional, no reduction at all
the Revised Penal Code.chanroblesvirtualawlibrarychanrobles virtual law library
would be allowed.chanroblesvirtualawlibrarychanrobles virtual law library

Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered
second paragraph involving the same range of penalty, we both allow and disallow the application of
as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to
Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the
declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory
because Section 20 of the Dangerous Drugs Act, as amended by R.A.
penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis
(Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among
for the determination of the proper penalty and limiting fine only to cases punishable by reclusion
others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
hard to justify.chanroblesvirtualawlibrarychanrobles virtual law library
dangerous
drugs - say 500 to 749 grams of marijuana, in which case the penalty to be imposed would
I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the be reclusion temporal - may only be sentenced to six (6) months and one (1) day of prision
Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found
by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20 guilty of possession of only one (1) gram of marijuana - in which case the penalty to be imposed
of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law, is prision correccional - would not be entitled to a reduction thereof even if he has the same number
the indeterminate sentence to be meted on the accused should be that whose minimum should not of privileged mitigating circumstances as the former has.chanroblesvirtualawlibrarychanrobles
be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower virtual law library
than six (6) months and one (1) day of prision correccional.
Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is
IIchanrobles virtual law library entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised
Penal Code, which reads:
The majority opinion holds the view that while the penalty provided for in Section 20 of the
Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, Art. 68. Penalty to be imposed upon a person under eighteen years of age. - When the offender is a
prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, minor under eighteen years and his case is one coming under the provisions of the paragraph next
each should form a period, with the lightest of them being the minimum, the next as the medium, to the last of Article 80 of this Code, the following rules shall be observed:
and the most severe as the maximum, yet, considering that under the said second paragraph of
Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then
1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by
by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section
reason of the court having declared that he acted with discernment, a discretionary penalty shall be
20, as amended, each of the aforesaid component penalties shall be considered as a principal
imposed, but always lower by two degrees at least than that prescribed by law for the crime which
penalty depending on the quantity of the drug involved. Thereafter, applying the modifying
he committed.chanroblesvirtualawlibrarychanrobles virtual law library
circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component
penalty shall then be fixed.chanroblesvirtualawlibrarychanrobles virtual law library
2. Upon a person over fifteen and under eighteen years of age the penalty next lover than that
prescribed by law shall be imposed, but always in the proper period.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period.
Yet, the majority opinion puts a limit to such a rule. It declares:
I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended
by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect
and not to apply it in another.
Feliciano and Quiason, JJ., concur.
Separate Opinions
DAVIDE, JR., J., concurring and dissenting:chanrobles virtual law library
I am still unable to agree with the view that (a) in appropriate cases where the penalty to be
imposed would be prision correccional pursuant to the second paragraph of Section 20 of R.A. No.
6425, as amended by Section 17 of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as amended), should be that whose minimum is within
the range of the penalty next lower, i.e., arresto mayor; and (b) the presence of two or more
mitigating circumstances not offset by any mitigating circumstances or of a privileged mitigating
circumstance shall not reduce the penalty by one or two degrees if the penalty to be imposed, taking
into account the quantity of the dangerous drugs involved, would be prision correccional.
Ichanrobles virtual law library
The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence also their technical
signification and effects, then what should govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:
in imposing a prison sentence for an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum term
of which shall be that which, in view of the attending circumstances, could be properly imposed
under the rules of the said Code, and the minimum which shall be within the range of the penalty
next lower to that prescribed by the Code for the offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the
offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses
would now be considered as punished under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.chanroblesvirtualawlibrarychanrobles virtual law library
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No. 4225 and R.A.
No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into account in the
application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code,
and (2) offenses punished by other laws (or special laws).chanroblesvirtualawlibrarychanrobles
virtual law library
The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof,
which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is
deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is
punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of
Book I thereof.chanroblesvirtualawlibrarychanrobles virtual law library
On the other hand, an offense is considered punished under any other law(or special law) if it is not
defined and penalized by the Revised Penal Code but by such other
law.chanroblesvirtualawlibrarychanrobles virtual law library
It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the
penalty therefor are found in the said Code, and it is deemed punished by a special law if its
definition and the penalty therefor are found in the special law. That the latter imports or borrows
from the Revised Penal Code its nomenclature of penalties does not make an offense in the special
law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the
special law that defines the offense and imposes a penalty therefor, although it adopts the Code's
nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised
Penal Code can by no means make an offense thereunder an offense "punished or punishable" by
the Revised Penal Code.chanroblesvirtualawlibrarychanrobles virtual law library
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties prescribed
by the Revised Penal Code in drug cases, offenses related to drugs should now be considered
as punished under the Revised Penal Code. If that were so, then we are also bound, ineluctably, to
declare that such offenses are mala in se and to apply the Articles of the Revised Penal Code
regarding the stages of a felony (Article 6), the nature of participation (Article 16), accessory
penalties (Articles 40-45), application of penalties to principals, accomplices, and accessories
(Article 46 et seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent posture which is extremely
hard to justify.chanroblesvirtualawlibrarychanrobles virtual law library
I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties in the
Revised Penal Code does not make an offense under the Dangerous Drugs Act an offense punished
by the Revised Penal Code. Consequently, where the proper penalty to be imposed under Section 20
of the Dangerous Drugs Act is prision correccional, then, applying the Indeterminate Sentence Law,
the indeterminate sentence to be meted on the accused should be that whose minimum should not
be less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e., not lower
than six (6) months and one (1) day of prision correccional.
IIchanrobles virtual law library
The majority opinion holds the view that while the penalty provided for in Section 20 of the
Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional,
prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code,
each should form a period, with the lightest of them being the minimum, the next as the medium,
and the most severe as the maximum, yet, considering that under the said second paragraph of
Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then
by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section
20, as amended, each of the aforesaid component penalties shall be considered as a principal
penalty depending on the quantity of the drug involved. Thereafter, applying the modifying
circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component
penalty shall then be fixed.chanroblesvirtualawlibrarychanrobles virtual law library
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper
principal penalty should be prision correccional, but there is one mitigating and no aggravating
circumstance, then the penalty to be imposed should be prision correccional in its minimum period.
Yet, the majority opinion puts a limit to such a rule. It declares:
The Court rules, therefore, that while modifying circumstances may be appreciated to determine the I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect
such graduation of penalties reduce the imposable penalty beyond or lower than and not to apply it in another.
prision correccional. It is for this reason that the three component penalties in the second paragraph
of Section 20 shall each be considered as an independent principal penalty, and that the lowest
Feliciano and Quiason, JJ., concur.
penalty should in any event be prision correccional in order to depreciate the seriousness of drug
offenses.

Simply put, this rule would allow the reduction from reclusion
temporal - if it is the penalty to be imposed on the basis of the quantity of the drugs involved - by
two degrees, or to prision correccional, if there are two or more mitigating circumstances and no
aggravating circumstance is present (paragraph 5, Article 64, Revised Penal Code) or if there is a
privileged mitigating circumstances of, say, minority (Article 68, Revised Penal Code), or under
circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be
imposed is prision mayor,regardless of the fact that a reduction by two degrees is proper, it should
only be reduced by one degree because the rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed isprision correccional, no reduction at all
would be allowed.chanroblesvirtualawlibrarychanrobles virtual law library

I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same
second paragraph involving the same range of penalty, we both allow and disallow the application of
Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing
because Section 20 of the Dangerous Drugs Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis
for the determination of the proper penalty and limiting fine only to cases punishable by reclusion
perpetua to death. It is unfair because an accused who is found guilty of possessing MORE
dangerous
drugs - say 500 to 749 grams of marijuana, in which case the penalty to be imposed would
be reclusion temporal - may only be sentenced to six (6) months and one (1) day of prision
correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found
guilty of possession of only one (1) gram of marijuana - in which case the penalty to be imposed
is prision correccional - would not be entitled to a reduction thereof even if he has the same number
of privileged mitigating circumstances as the former has.chanroblesvirtualawlibrarychanrobles
virtual law library

Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is
entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised
Penal Code, which reads:

Art. 68. Penalty to be imposed upon a person under eighteen years of age. - When the offender is a
minor under eighteen years and his case is one coming under the provisions of the paragraph next
to the last of Article 80 of this Code, the following rules shall be observed:

1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by
reason of the court having declared that he acted with discernment, a discretionary penalty shall be
imposed, but always lower by two degrees at least than that prescribed by law for the crime which
he committed.chanroblesvirtualawlibrarychanrobles virtual law library

2. Upon a person over fifteen and under eighteen years of age the penalty next lover than that
prescribed by law shall be imposed, but always in the proper period.
 [G.R. Nos. 115008-09. July 24, 1996.] reasons involving heinous crimes, the Congress hereafter provides for it," that is, authorizes its
imposition. Meanwhile, all laws which provided for the death penalty remained in force and were
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DANIEL QUIJADA Y CIRCULADO, Accused- maintained in the statute books despite that constitutional provision since it did not by itself have
Appellant. the effect of amending, or repealing them. Some of those laws were later expressly repealed or
amended by the President in the exercise of her then legislative powers and, thereafter, some were
repealed or modified by Congress, which even added other heinous crimes with capital penalties.
SYLLABUS However, other laws like Presidential Decree No. 1866, which were not thus repealed or amended,
retain their present provisions and effects, except that the death penalty provided by them would in
the meantime be reduced to reclusion perpetua. Republic Act No. 7659 did not "reimpose" the death
penalty on murder. Article 248 of the Penal Code which provided for the penalty of reclusion
1. CRIMINAL LAW; FELONIES; LESSER OFFENSE MAY ABSORB A GRAVER OFFENSE; DOCTRINE
temporal in its maximum period to death for that crime, was amended by Republic Act No. 7659,
APPLIED TO OFFENSES PUNISHABLE BY RA 1866. — In the scheme of penalties under the Revised
merely to increase the penalty to reclusion perpetua to death, but it remained in full force even
Penal Code, it is accepted that a lesser offense may absorb a graver offense. Neither should the fact
during the interim except for the fact that the penalty of death could not then be imposed. That is
that the aggravated form of illegal possession of an unlicensed firearm is a malum prohibitum
why the title of Republic Act No. 7659 is "An act to Impose the Death Penalty in Certain Heinous
punished by a special law inveigh against the doctrine of absorption we have adopted in Barros. In
Crimes, Amending for that purpose, the Revised Penal Code, . . ." The same is true with respect to the
fact, as hereinbefore quoted, Tac-an recognized that the killing should be taken into account to
aggravated form of illegal possession of firearms, except that the imposition of the death penalty
increase the penalty to death because of the explicit provision of Presidential Decree No. 1866.
thereunder is still proscribed. Even if we were to indulge the majority in its thesis on the effects of
Republic Act No. 7659 on Presidential Decree No. 1866, that is, that by the non-inclusion in the
2. ID.; ID.; DISTINCTION BETWEEN MALA IN SE AND MALA PROHIBITA OFFENSES THAT THE
former of the aggravated form of illegal possession with murder the death penalty cannot justify the
FIRST REFERS TO THOSE OFFENSES IN THE REVISED PENAL CODE NO LONGER APPLIES. — Nor
recourse it has adopted as a judicial dictum. The second paragraph of the aforestated Section 1
should we hold a "judicial prejudice" from the fact that the two forms of illegal possession of
expressly and unequivocally provides for such illegal possession and resultant killing as a single
firearms in Presidential Decree No. 1866 are mala prohibita. On this score, I believe it is time to
integrated offense which is punished as such. The majority not only created two offenses by dividing
disabuse our minds of some superannuated concepts of the difference between mala in se and mala
a single offense into two but, worse, it resorted to the unprecedented and invalid act of treating the
prohibita. I find in these cases a felicitous occasion to pointout this misperception thereon since
original offense as a single integrated crime and then creating another offense by using a component
even now there are instances of incorrect assumptions creeping into some of our decisions that if
crime which is also an element of the former.
the crime is punished by the Revised Penal Code, it is necessarily a malum in se and, if provided for
by a special law, it is a malum prohibitum. It was from hornbook lore that we absorbed the
4. POLITICAL LAW; LEGISLATURE; LEGISLATIVE DOMAIN; NOT FOR THE SUPREME COURT TO
distinctions given by text writers, claiming that: (1) mala in se require criminal intent on the part of
FILL IN GAPS OF OMISSION IN STATUTES. — The fact that the aggravated form of illegal possession
the offender; in mala prohibita, the mere commission of the prohibited act, regardless of intent, is
with murder was not included in Republic Act No. 7659 is a matter for Congress, and not for this
sufficient; and (2) mala in se refer to felonies in the Revised Penal Code, while mala prohibita are
Court, to remedy. A legislative terrain with gaps of omission in the statute is not terra incognita to
offenses punished under special laws. The first distinction is still substantially correct, but the
the courts, familiars as we are with instances thereof. The legislature may have committed such
second is not accurate. In fact, even in the Revised Penal Code there are felonies which are actually
omissions in the law for reasons of its own or through unintended oversight but, unless judicial
and essentially mala prohibita. To illustrate, in time of war, and regardless of his intent, a person
remedy is constitutionally permissible, and in the cases at bar it is not, the courts must await the
who shall have correspondence with a hostile country or territory occupied by enemy troops shall
legislative remedy of amendment or repeal of that law. The disposition in the cases at bar is
be punished therefor. An accountable public officer who voluntarily fails to issue the required
grounded on the omission of non-inclusion of murder through the use of an illegally possessed
receipt for any sum of money officially collected by him, regardless of his intent, is liable for illegal
firearm in heinous crimes subject of Republic Act No. 7659. But, instead of respecting the legislative
exaction. Unauthorized possession of picklocks or similar tools, regardless of the possessor’s intent,
formulation, the majority has contrarily decided to disregard the clear import of Presidential Decree
is punishable as such illegal possession. These are felonies under the Revised Penal Code but
No. 1866 and opted to impose two penalties for what it considers as two offenses through a
criminal intent is not required therein. On the other hand, I need not mention anymore that there
bifurcated interpretation.
are now in our statutes so many offenses punished under special laws but wherein criminal intent is
required as an element, and which offenses are accordingly mala in se although they are not felonies
5. POLITICAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY ARISING FROM PROSECUTIONS FOR THE
provided for in the Code.
SAME OFFENSE; DOCTRINE APPLICABLE TO AGGRAVATED ILLEGAL POSSESSION OF UNLICENSED
FIREARM IN RA 1866. — Prescinding from the substantive aspect and shifting to the procedural and
3. ID.; RA 1866; HOMICIDE OR MURDER WITH THE USE OF UNLICENSED FIREARM; PENALTY TO
constitutional view, I am also bothered by the impact of the majority opinion upon the rule on
BE IMPOSED, SINGLE; REASON. — I cannot agree with the rationalization of the majority that two
double jeopardy. I am referring, of course, to double jeopardy arising from prosecutions for the
separate penalties must be imposed on the same accused because he is supposed to have committed
same offense under two or more laws as contemplated in the Rules of Court, and not to the special
two separate offenses of (1) illegal possession with murder, and (2) the same murder per se. The
situation under the Constitution involving a prosecution for the same act punished under a law and
unusual justification is that in the first offense, the murder is not considered as a separate offense
an ordinance, as clarified in People v. Reloya, etc., Et. Al. In the first kind of double jeopardy for
but only to increase the penalty for the illegal possession, and in the second offense, that same
purposes of this discussion, what is determinative is the identity of the offense, hence the "same-
murder shall now be considered as a separate offense in itself. To make this theory palatable, the
evidence" test applies, that is, that the facts alleged and proven in one charge would, based on the
example is given that if the murder is committed with an unlicensed firearm, the death penalty is
same evidence, suffice to support the second charge, and vice-versa. In the cases now before us, it is
imposable, whereas if it is committed with a licensed firearm, the penalty shall only be reclusion
difficult to assume that the evidence for the murder in the first charge of aggravated illegal
perpetua. This concern is evidently due to the fact that Republic Act No. 7659, which "reimposed"
possession of firearm with murder would be different from the evidence to be adduced in the
the death penalty for certain heinous crimes, does not include the offense that we have termed as
subsequent charge for murder alone. In the second charge, the illegal possession is not in issue,
aggravated form of illegal possession of firearms which is provided for in the second paragraph of
except peripherally and inconsequentially since it is not an element or modifying circumstance in
Section 1, Presidential Decree No. 1866. It has always been my position that the death penalty was
the second charge, hence the evidence therefor is immaterial. But, in both prosecutions, the
not "abolished" by the 1987 Constitution, since I had some participation in formulating the
evidence on murder is essential, in the first charge because without it the crime is only simple illegal
provision involved. It merely provides that the same shall not "be imposed, unless, for compelling
possession, and, in the second charge, because murder is the very subject of the prosecution. It is a
cardinal rule that the protection against double jeopardy may be invoked only for identical offenses
or where an offense necessarily includes or is necessarily included in the other offense. However, it
has also long been held that a single act may offend 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. That is because the two offenses continue to exist
independently of each other, with their respective penalties remaining unaffected by the
commission of or penalty for the other offense. It is true that mere illegal possession has a specific
lower penalty in Presidential Decree No. 1866, and murder or homicide have their own specific
penalties in Articles 248 and 249 of the Code. However, the moment both erstwhile separate
offenses juridically unite, we have what for expediency has been called by this Court an aggravated
form of illegal possession of firearm punishable by the two highest penalties of reclusion perpetua to
death. We cannot speak here, therefore, of the "additional element test" which presupposes and
requires that the two offenses remain distinct from each other, with the discrete penalty for one
being immune from that for the other. What, instead, transpired in Presidential Decree No. 1866 is a
unification or merger in law of both offenses of illegal possession of firearm and murder or
homicide, with each of them becoming a component offense in a new and different composite crime
punished by another and gravely higher penalty.
6. CRIMINAL LAW; RA 1866; DAMAGES AWARDED MAY BE TO HEIRS OF VICTIMS IN AGGRAVATED
ILLEGAL POSSESSION OF UNLICENSED FIREARM. — The trial court may justifiedly assess and
award the corresponding damages to the heirs of the victim. This is not one of the so-called
"victimless crimes" where, by the very nature of the crime, no damages can possibly be sustained by
a private party, such as espionage, violation of neutrality, flight to enemy country or crimes against
popular representation. Where the victim was killed under the circumstances contemplated in
Presidential Decree No. 1866, I see no reason why the case should he excepted from the
fundamental rule that every person criminally liable is civilly liable. Thus, while the crime of
rebellion is directed against the Government, yet in the rebellion cases decided by this Court,
corresponding awards for civil damages were invariably granted so long as the offense which
caused the damage was proved and the victim and the malefactor or the property involved were
duly identified by satisfactory evidence.
HERMOSISIMA, JR., J., concurring opinion:chanrob1es virtual 1aw library
1. POLITICAL LAW; POLICE POWER; EMBRACES ENACTMENT OF LAWS FOR RESTRAINT AND
PUNISHMENT OF CRIMES. — Every law enacted by the legislature for the restraint and punishment
of crimes and for the preservation of the public peace, health and morals comes within the police
power of the State.
2. ID.; LEGISLATIVE; GUIDING PRINCIPLE IN THE EXERCISE OF POWER TO DETERMINE AND
DEFINE CRIMES AND PENALTIES. — In the exercise of its right, duty and power to determine and
define crimes and their corresponding penalties, the lawmaking body is initially and usually guided
by the general condition of penal liability under the legal maxim, "actus non facit reum, nisi mens sit
rea," which, if freely translated, means that "an act is not criminal unless the mind is criminal." On
the basis of this, which is commonly known as the mens rea doctrine, our Revised Penal Code was
enacted to largely penalize unlawful acts accompanied by evil intent which are denominated en
masse as crimes mala in se. The paramount consideration here is the existence of a malicious
intention borne out by the concurrence of freedom, intelligence and intent which altogether make
up the "criminal mind" behind the resultant "criminal act."cralaw virtua1aw library
3. CRIMINAL LAW; FELONIES; CRIMES MALUM PROHIBITUM; HOW DETERMINED. — Whether or
not in a given case the statute is to be construed as forbidding the doing of an act and criminalizing
the same without regard to the intent of the perpetrator of the act, is to be determined by the court
by considering the subject matter of the prohibition as well as the language of the statute, thereby
ascertaining the intention of the lawmaker. The index of whether or not a crime is malum
prohibitum is not its form, that is, whether or not it is found in the Revised Penal Code or in a special
penal statute, but the legislative intent that underlies its continuing existence as part of the law of
the land.
4. ID.; P.D. 1866; MERE POSSESSION OF UNLICENSED FIREARM, ILLEGAL. — We have not just a few
times precisely delineated the malum prohibitum nature of P.D. No. 1866, which is a codification of
the laws on unlawful possession of unlicensed firearms, among others. The aforecited public policy
concern justified the blanket prohibition in P.D. No. 1866 against mere possession of unlicensed
firearms, among others, without regard to the criminal intent of the possessor. Indeed, what is being
punished is the illegal possession, among others, of unlicensed firearms.
5. ID.; ID.; QUALIFYING CIRCUMSTANCES. — The circumstances (1) that homicide or murder is
committed with the use of an unlicensed firearm and (2) that the illegal possession of unlicensed
firearm is committed in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion, only qualify or aggravate the offense of Illegal Possession of Unlicensed
Firearm for purposes of increasing the penalty therefor. These circumstances do not create another
offense or a special kind of illegal possession or another form of illegal possession. When either of
such circumstances is attendant under the premises of a case, such circumstance only authorizes
and justifies the imposition of a higher penalty. It only has the effect of upgrading the penalty and
not of supplying an additional, separate element of a new or another offense.
6. ID.; ID.; ID.; NO SPECIAL COMPLEX CRIME OF ILLEGAL POSSESSION OF UNLICENSED FIREARM
USED IN HOMICIDE. — There is no such thing as a special complex crime of illegal possession of
unlicensed firearm used in homicide, or murder for that matter.
7. ID.; ID.; NOMENCLATURE OF AGGRAVATED ILLEGAL POSSESSION, USED ONLY FOR
EXPEDIENCY. — Neither could we have conceived what we have been calling the aggravated form of
illegal possession or qualified illegal possession, to be a separate, distinct and independent offense
from illegal possession without any qualifying circumstance. Even Justice Regalado concedes in his
Separate Opinion in People v. Barros that "the nomenclature of aggravated illegal possession is used
just for expediency, in the same manner as that of ‘qualified rape’ under Article 335 when the sexual
assault is attended by the circumstances therein which result in increased penalties.
8. ID.; ID.; LAW ON COMPLEX CRIME NOT APPLICABLE WHERE USE OF UNLICENSED FIREARM
CAUSED DEATH OF ANOTHER. — The law on complex crime proper is not applicable here. One of
the reasons often cited in proscribing complexing a crime under the Revised Penal Code and an
offense under a special law is that the latter is not punishable by a penalty divisible into periods.
Now following our ruling in People v. Simon, the suppletory effect of the Revised Penal Code upon
P.D. No. 1866 is now starkingly broadened because though it is a special penal law, the penalties
provided therein are actually taken from the Revised Penal Code in their technical nomenclature,
duration, correlation and legal effects, such that the same treatment as that respecting Revised
Penal Code penalties may now be given to penalties under certain special laws. However,
notwithstanding the import of our ruling in the said case of People v. Simon, it still cannot be said
that there is no longer any obstacle in complexing murder with qualified illegal possession because
the very essence and nature of each of these crimes remains unchanged and unaffected. Murder, or
for that matter, homicide, remains distinct from the crime of Illegal Possession of Unlicensed
Firearm where the firearm is used in perpetuating the killing. The defendant in such cases
committed two different acts with two separate criminal intents, to wit, the desire to take
unlawfully the life of a person and the sheer violation of the law which prohibits the possession of a
firearm without the required permit. In other words, there is in this instant case a case of plurality
of crimes where accused-appellant performed one act which resulted in two different crimes
penalized under two separate laws which have distinct purposes and are independent from each
other.
9. ID.; ID.; USE OF UNLICENSED FIREARM CANNOT ABSORB MURDER OR HOMICIDE. — Neither
does the doctrine of absorption obtain in this case. For absorption to take place under the
circumstances thereof, there must be two materially distinct and separate offenses involved —
murder and what has been referred to as the capital offense of the aggravated form of illegal
possession of unlicensed firearm. As had been explained hereinabove, however, the offense defined
in Section 1 of P.D. No. 1866 is plainly, simply illegal possession of unlicensed firearm. The
circumstances of homicide or murder only operates to upgrade the penalty for the offense of illegal
possession of unlicensed firearm and does not as it has not been intended to, sire and penalize a
second offense or the so-called capital offense of the aggravated form of illegal possession of
unlicensed firearm. The offense of illegal possession, as such, in turn, cannot validly absorb murder
or homicide because the latter is not an element of the former. Nothing more indubitably evidences
the intent of the legislature to maintain the integrity and effectivity of the penal provision for
murder and homicide, on the one hand, and of Section 1 of P.D. No. 1866, on the other, than the very
pertinent provision of said decree which neither created any special complex crime nor amended
nor repealed the provision on murder or homicide nor defined as a separate offense of an
aggravated form of illegal possession.
10. STATUTORY CONSTRUCTION; EVERY DOUBT IN THE CONSTRUCTION OF CRIMINAL STATUTE
SHOULD BE RESOLVED IN FAVOR OF THE ACCUSED; RULE NOT APPLICABLE TO R.A. 1866; LAW IS
CLEAR AND UNAMBIGUOUS. — We are not unaware of the fundamental legal principle that every
doubt in the construction of a criminal statute should be resolved in favor of any person accused of a
crime. To mete out a lessor penalty is certainly favorable to an accused; such, however, presupposes
the existence of some doubt in the application of the law pertinent to his circumstances. In the
instant case, there is no ambiguity, ambivalence, confusion, doubt or question respecting the
applicable laws. The penalties provided for by the Revised Penal Code for the crime of Murder and
by P.D. No. 1866 for the offense of Illegal Possession of Unlicensed Firearm are not under attack.
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 offenses 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 benefit dance was attended by Rosita Iroy, Ariel Dano, Teodora Badayos, Ado Aranzado, Largo Iroy
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 v. Tac-an, 2 People v. Tiozon, 3 People v. Caling, 4
People v. Jumamoy, 5 People v. Deunida, 6 People v. Tiongco, 7 People v. Fernandez, 8 and People v.
Somooc 9 or to modify the judgment and convict the appellant only of illegal possession of firearm
in its aggravated form pursuant to People v. Barros, 10 which this Court (Second Division) decided
on 27 June 1995.
The informations read as follows:chanrob1es virtual 1aw library
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 PD 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. Gregg 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:chanrob1es virtual 1aw library
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
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
Iroy 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:chanrob1es virtual 1aw library
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 auntie
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:chanrob1es virtual 1aw library
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 suffer 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 RA No. 1866 as amended,
and hereby sentences him to suffer 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 of 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:chanrob1es virtual 1aw library
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 WITNESS EDWIN NISTAL AND ALFRED
ARANZADO, AND IN DISREGARDING THE PICTORIAL EXHIBITS OF THE ACCUSED-APPELLANT
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 SPO4 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 SPO4 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
the 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:chanrob1es virtual 1aw library
Q You said that you were initially dancing inside the dancing place and you went out, about what
time did you get out?
A 11:00 o’clock.
Q And you were standing about two (2) meters from Diosdado Iroy until 11:30 when the incident
happened?
A Yes I was standing.
Q And where did you face, you were facing Diosdado Iroy or the dancing area?
A 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
x x x x
Q And in your estimate, how far was your brother Diosdado Iroy while he was sitting at the plaza to
the dancing place?
A More or less four (4) meters distance.
COURT:chanrob1es virtual 1aw library
From the dancing hall?
A Yes, your honor.
Q And in your observation, was the place where Diosdado Iroy was sitting lighted or illuminated?
A Yes, sir.
Q What kind of light illuminated the place?
A I do not know what kind of light but it was lighted.
Q Was it an electric light?
A It is electric light coming from a bulb.
Q Where is that electric bulb that illuminated the place located?
A It was placed at the gate of the dancing place the light from the house.
Q You said gate of the dancing place, you mean the dancing place was enclosed at that time and
there was a gate, an opening?
A Yes, sir.
Q What material was used to enclose the dancing place?
A Bamboo.
Q And how far was the bulb which was placed near the entrance of the dancing place to the place
where Diosdado Iroy was sitting?
A Five (5) meters.
Q You mentioned also that there was a light coming from the house, now whose house was that?
A The house of spouses Fe and Berto, I do not know the family name.
Q Was the light coming from the house of spouses Fe and Berto an electric light?
A Yes, sir.
Q 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?
A About six (6) meters distance. 24
x x
Q What was the color of the electric bulb in the gate of the dancing place?
A The white bulb.25cralaw:red
The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:chanrob1es
virtual 1aw library
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 v. 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 different 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 SPO4 Nigparanon simply because he is a neighbor of the
Iroy; remains purely speculative, as no evidence was offered to establish that such a relationship
affected SPO4 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 SPO4 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 alibi cannot
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 offenders; 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:chanrob1es virtual 1aw library
SEC. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, 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.
In light of the doctrine enunciated in People v. Tac-an, 35 and reiterated in People v. Tiozon, 36
People v. Caling, 37 People v. Jumamoy, 38 People v. Deunida, 39 People v. Tiongco, 40 People v.
Fernandez, 41 and People v. Somooc, 42 that one who kills another with the use of an unlicensed
firearm commits two separate offenses 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
offenses 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 offenses, 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:chanrob1es virtual 1aw library
It is elementary that the constitutional right against double jeopardy protects one against a second
or later prosecution for the same offense, and that when the subsequent information charges
another and different offense, 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 offense charged in
Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized under a
special statute, while the offense 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) offenses in
themselves are quite different 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:chanrob1es virtual 1aw library
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.
In People v. Doriguez [24 SCRA 163, 171], We held:chanrob1es virtual 1aw library
It is a cardinal rule that the protection against double jeopardy may be invoked only for the same
offense or identical offenses. A simple act may offend 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 different 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 offenses arise from the same fact, if each crime involves some important
act which is not an essential element of the other.
In People v. 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:chanrob1es virtual 1aw library
The protection against double jeopardy is only for the same offense. A simple act may be an offense
against two different 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 offense[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:chanrob1es virtual 1aw library
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:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
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 . . . (or) ammunition . . ."
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 offense in its simplest form is, basically, the fact of possession of a firearm
without license. The crime may be denominated simple illegal possession, to distinguish it from its
aggravated form. It is aggravated if the unlicensed firearm is used in the commission 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 absorbed in the former. There are two
distinct crimes that are here spoken of. One is unlawful possession of a firearm, which may be either
simple or aggravated, defined and punished respectively by the 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 the crime under
P.D. 1866, and the liability for illegal possession is made heavier by the firearm’s use in a killing. The
killing, whether homicide or murder, is obviously distinct from the act of possession, and is
separately punished and defined 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 offenses 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:chanrob1es virtual 1aw library
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 reclusion perpetua. 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 murder qualifies the offense because both are circumstances which
increase the penalty. It does not, however, follow that the homicide or murder is absorbed in the
offense. If these were to be so, an anomalous absurdity would result whereby a more serious crime
defined and penalized under the Revised Penal Code will be absorbed by a statutory offense, one
which is merely malum prohibitum. Hence. the killing of a person with the use of an unlicensed
firearm may give rise to separate prosecutions for (a) the violation of Section 1 of a P.D. No. 1866
and (b) the violation of either Article 248 (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 v. Tiozon, 198 SCRA 368, 379
(1991); People v. 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:chanrob1es virtual 1aw library
At the outset, it must be stressed that, contrary to the prosecution’s legal position in withdrawing
the information for murder, the offense 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 v. 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 v. Tac-
an, People v. Tiozon, and People v. Caling.
In Somooc, we once more ruled:chanrob1es virtual 1aw library
The offense 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 v. Caling,
a misnomer since there is no complex crime of illegal possession of firearm with homicide. The
gravamen of the offense penalized in P.D. No. 1866 is the fact of possession of a firearm without a
license or authority for such possession. This offense is aggravated and the imposable penalty
upgraded if the unlicensed firearm is shown to have been used in the commission of homicide or
murder, offenses 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 suffered a setback when in our decision of 27 June 1995 in People v. Barros,
43 we set aside that portion of the appealed decision convicting the appellant of the offense of
murder and affirmed that portion convicting him of illegal possession of firearm in its aggravated
form. We therein made the following statement:chanrob1es virtual 1aw library
[A]ppellant may not in the premises be convicted of two separate offenses [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:chanrob1es virtual 1aw library
This premise accordingly brings up the second query as to whether or not the crime should
properly be the aggravated illegal possession of an unlicensed firearm through the use of which a
homicide or murder is committed. It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm punished by death under the
second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer
dissents from the holding which would impose a separate penalty for the homicide in addition to
that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court
has correctly held that to be the simple possession punished with reclusion temporal in its
maximum period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily,
the unlicensed firearm is used to commit homicide or murder, then either of these felonies will
convert the erstwhile simple illegal possession into the graver offense of aggravated illegal
possession. In other words, the homicide or murder constitutes the essential element for integrating
into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally,
therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder
as integral elements of and to create the said capital offenses, and then treat the former all over
again as independent offenses to be separately punished further, with penalties immediately
following the death penalty to boot.
The situation contemplated in the second query is, from the punitive standpoint, virtually of the
nature of the so-called, "special complex crimes," which should more appropriately be called
composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the same
legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a
single act giving rise to two or more grave or less grave felonies nor do they involve an offense being
a necessary means to commit another. However, just like the regular complex crimes and the
present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of
such composite crimes although composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been covered by the conceptual
definition of a complex crime under Article 48, but the Code imposes a single definite penalty
therefor, it cannot also be punished as a complex crime, much less as separate offense, but with only
the single penalty prescribed by law. Thus, even where a single act results in two less grave felonies
of serious physical injuries and serious slander by deed, the offense will not be punished as a delito
compuesto under Article 48 but as less serious physical injuries with ignominy under the second
paragraph of Article 265. The serious slander by deed is integrated into and produces a graver
offense, and the former is no longer separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on
complex and composite crimes, is that when an offense becomes a component of another, the
resultant crime being correspondingly punished as thus aggravated by the integration of the other,
the former is not to be further separately punished as the majority would want to do with the
homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is more of a question of
classification for purposes of the other provisions of the Code. The theory in Tac-an that the
principal offense is the aggravated form of illegal possession of firearm and the killing shall merely
be included in the particulars or, better still, as an element of the principal offense, may be
conceded. After all, the plurality of crimes here is actually 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 effectively deter violators" of said laws.
This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping
Act of 1972, wherein the principal crime to be charged is still carnapping, although the penalty
therefore is increased when the owner, driver or occupant of the carnapped vehicle is killed. The
same situation, with escalating punitive provisions when attended by a killing, are found in the Anti-
Piracy and Anti-Highway Robbery Law of 1974 and the Anti-Cattle Rustling Law of 1974, wherein
the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of
destructive arson, the principal offense when, inter alia, death results as a consequences of the
commission of any of the acts punished under said article of the Code.
In the present case, the academic value of specifying whether it is a case of illegal possession of
firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal
possession and use of an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty
for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case
the provision on recidivism would not apply. If, however, the illegal possession is not established
but either homicide or murder is proved, then the matter of recidivism may have some significance
in the sense that, for purposes thereof, the accused was convicted of a crime against persons and he
becomes a recidivist upon conviction of another crime under the same title of the Code.
Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when
the unlawful killing and the illegal possession are charged in separate informations, from what has
been said the appropriate course of action would be to consolidate the cases and render a joint
decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such
possession and the unlawful taking of life shall have been proved, or for only the proven offense
which may be either simple illegal possession, homicide or murder per se. The same procedural rule
and substantive disposition should be adopted if one information for each offense was drawn up
and these informations were individually assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately from the homicide or
murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers
and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be
known to the police or prosecutorial agencies, the only probable problem being the determination
and obtention of evidence to show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without alleging therein that the same
was committed by means of an unlicensed firearm, the case would not fall under Presidential
Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even
if proved in that case, would not affect the accused either since it is not an aggravating or qualifying
circumstance.
Conversely, if the information is only for illegal possession, with the prosecution intending to file
thereafter the charge for homicide or murder but the same is inexplicably delayed or is not
consolidated with the information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other hand, the separate and
subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree No.
1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the
unlawful killing and further subject to such modifying circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the proposition that the real offense
committed by the accused, and for which sole offense he should be punished, is the aggravated form
of illegal possession of a firearm. Further, it is the writer’s position that the possible problems
projected herein may be minimized or obviated if both offenses involved are charged in only one
information or that the trial thereof, if separately charged, be invariably consolidated for joint
decision. Conjointly, this is the course necessarily indicated since only a single composite crime is
actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts
in piecemeal fashion.
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 suffer 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 affront on doctrinal concepts of penal law and assails
even the ordinary notions of common sense."cralaw virtua1aw library
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 v. 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:chanrob1es virtual 1aw library
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 suffer 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 clear that appellant is charged with the qualified offense of illegal possession of
firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct
from the crime of rebellion punished under Article 134 and 135 of the Revised Penal Code. There
are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal
Code treats rebellion as a crime apart from murder homicide arson, or other offenses, such as illegal
possession of firearms, that might conceivably be committed in the course of a rebellion.
Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal
possession 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 Decree No.
1866, the Court has explained that said provision of the law will not be invalidated by the mere fact
that the same act is penalized under two different statutes with different penalties, even if
considered highly advantageous to the prosecution and onerous to the accused. It follows that,
subject to the presence of a requisite elements in each case, unlawful possession of an unlicensed
firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1
of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal
Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense
punished by a special law while the second is a felony punished by the Revised Penal Code with
variant 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 affront 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
"affront 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 offense 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 affecting public order and safety due to the proliferation of illegally
possessed and manufactured firearms, ammunition, and explosives. If intent 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 prohibitum 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:chanrob1es virtual 1aw library
The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such
illegal possession and resultant killing as a single integrated offense which is punished as such. The
majority not only created two offenses by dividing a single offense into two but, worse, it resorted to
the unprecedented and invalid act of treating the original offense as a single integrated crime and
then creating another offense by using a component crime which is also an element of the former.
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 offenses 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 offense as specifically described by the
law and impose reclusion perpetua therefor (since the death penalty for that offense 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 offense" 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:chanrob1es virtual 1aw
library
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 difference, 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 offender, 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 mens rea, is the primary
purpose, and to carry that out effectively the offender 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 1914), P.D. No. 533
(Anti-Cattle Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and Prescribing Stiffer
Penalties Therefor), the answer is resoundingly in the negative. In those cases, the lawmaker clearly
intended a single integrated offense or a special complex offense because the death therein occurs
as a result or on the occasion of the commission of the offenses therein penalized or was not the
primary purpose of the offender, unlike in the second paragraph of Section 1 of P.D. No. 1866. Thus,
(a) Section 3 of P.D. No 532 provides:chanrob1es virtual 1aw library
SEC. 3. Penalties. — Any person who commits piracy or highway robbery/brigandage as herein
defined, shall, upon conviction by competent court be punished by:chanrob1es virtual 1aw library
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 reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a
result or on the occasion of piracy, or when the offenders 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 occasion thereof, the penalty of death shall be imposed.
(Emphasis supplied)
(b) Section 8 of P.D. No. 533 reads in part as follows:chanrob1es virtual 1aw library
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 offense is committed without violence
against or intimidation of persons or force upon things. If the offense 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 reclusion perpetua to
death shall be imposed. (Emphasis supplied)
and (c) Section 3 of P.D. No. 534 reads as follows:chanrob1es virtual 1aw library
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:chanrob1es virtual 1aw library
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; . . . (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 offense 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 offense of illegal possession of firearm and would not anymore be separately
punished. Indeed, the words of the subject provision are palpably clear to exclude any suggestion
that either of the crimes of homicide and murder, as crimes mala in se under the Revised Penal
Code, is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of
firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the
provision is to increase the penalty prescribed in the first paragraph of Section 1 — reclusion
temporal in its maximum period to reclusion perpetua — to death, seemingly because of the
accused’s manifest arrogant defiance and contempt of 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 offense. That could not have been the intention of the
lawmaker because the term "penalty" in the subject provision is obviously meant to be the penalty
for illegal possession of firearm and not the penalty for homicide or murder. We explicitly stated in.
Tac-an:chanrob1es virtual 1aw library
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 offense 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 offender 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 offense 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
offenses by dividing a single offense into two. Neither did it resort to the "unprecedented and
invalid act of treating the original offense as a single integrated crime and then creating another
offense by using a component crime which is also an element of the former." The majority has
always maintained that the killing of a person with the use of an illegally possessed firearm gives
rise to two separate offenses of (a) homicide or murder under the Revised Penal Code, and (b)
illegal possession of firearm in its aggravated form.
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 offense 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 nothing 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 offenses for different 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 offends the constitutional bar against double jeopardy under the "same-
evidence" test enunciated in People v. Diaz. 53 He then concludes:chanrob1es virtual 1aw library
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 different 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 offense 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 offense was an indispensable
component for the other composite offense 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:chanrob1es virtual 1aw library
No person shall be twice put in jeopardy of punishment for the same offense. 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 offense. The second refers to the same act. This was
explicitly distinguished in Yap v. Lutero, 54 from where People v. Relova 55 quotes the
following:chanrob1es virtual 1aw library
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 offense." (emphasis 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 offense 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 different offenses, or the offense
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 offenses 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 offense. So long as jeopardy has
been attached under one of the informations charging said offense, the defense may be availed of in
the other case involving the same offense, even if there has been neither conviction nor acquittal in
either case.
Elsewise stated, where the offenses charged are penalized either by different sections of the same
statute or by different statutes, the important inquiry relates to the identity of offenses charged. The
constitutional protection against double jeopardy is available only where an identity is shown to
exist between the earlier and the subsequent offenses charged. 56 The question of identity or lack of
identity of offenses is addressed by examining the essential elements of each of the two offenses
charged, as such elements are set out in the respective legislative definitions of the offenses
involved. 57
It may be noted that to determine the "same offense" under the Double Jeopardy Clause of the Fifth
Amendment of the Constitution of the United States of America which reads:chanrob1es virtual 1aw
library
[N]or shall any person be subject for the same offense 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 offenses
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:chanrob1es virtual 1aw library
[N]o person for the same offense 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:chanrob1es virtual 1aw library
No person shall be twice put in jeopardy of punishment for the same offense. 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 II 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 different from the elements of homicide or murder, let alone the fact that these crimes are
defined and penalized under different 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 perpetua, 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.
Separate Opinions
REGALADO, J., concurring and dissenting:chanrob1es virtual 1aw library
I concur in the majority opinion only insofar as it holds accused-appellant Daniel Quijada y
Circulado guilty of the murder with the use of an illegally possessed firearm and punishes him
therefor. I confess, however, that I cannot in conscience reconcile myself with the unfortunate
doctrine first announced in People v. Tac-an, 1 and now reiterated by the majority, that said
appellant should be twice penalized for two supposedly distinct offenses involving (1) the murder of
the victim with an illegally possessed firearm, under Presidential Decree No. 1866 and (2) the same
murder of that same victim, this time under Article 248 of the Revised Penal Code.
I have heretofore rejected this very same dual verdicts of conviction in my concurring opinion in
People v. Barros, 2 which found favor with all my brethren in the Second Division, including Chief
Justice Andres R. Narvasa acting as the ponente of the decision in that case and in his capacity as the
Chairman of that Division. Indeed, I feel quite strongly that through the play on words that illegal
possession of firearm used in a killing is punishable under Presidential Decree No. 1866, while the
same killing with the same illegally possessed firearm is separately punished under Article 248 of
the Revised Penal Code, we have been beguiled by the semantical tyranny of shifting emphases.
I endeavored to analyze what I considered the error of that approach and thereby expose the
speciously camouflaged theory espoused in Tac-an which I believe, and still do, constitutes an
affront on doctrinal concepts of penal law and assails even the ordinary notions of common sense.
To avoid excursive reading, I quote my humble explanation in Barros somewhat at
length:chanrob1es virtual 1aw library
Under the dispositions heretofore made by the Court involving the crimes of homicide or murder
through the use of an illegally possessed firearm, and the same is true with the case at bar, the
following queries may be posed:chanrob1es virtual 1aw library
1. Should the crimes of homicide or murder, which are the end results, be punished separately from
and in addition to the liability for illegal possession of the firearm as the instrument or the means
employed?
2. On the other hand, should not the principal sole offense be the aggravated form of illegal
possession of a firearm under the second paragraph of Section 1 of Presidential Decree No. 1866,
with the homicide or murder being absorbed therein as an integral element of the crime in its
aggravated form.
3. If either homicide or murder and illegal possession of firearm are so charged in one and the same
information, should they be considered and punished as a single offense of homicide or murder with
the use of an unlicensed firearm, or as a case of aggravated illegal possession of firearm resulting in
homicide or murder, with the death penalty to be imposed in either case?
4. If homicide or murder is charged in a separate information while aggravated illegal possession of
firearm is made the subject of a separate indictment filed simultaneously with or prior or
subsequent to the former, but with the respective informations on the killing and the illegal
possession mutually alleging facts regarding the other offense as an attendant circumstance, should
the accused be held liable for two distinct crimes regardless of whether the cases are jointly tried by
the same court or separately by the two courts where the informations were independently filed?
On the first question, it is true that from the theoretical concept of the requisite mens rea, the killing
as the result of the criminal design arose from a specific criminal intent, that is, the animus
interficendi or intent to kill. The illegal possession of the firearm requires a discrete and specific
intent to possess the weapon, which is the animus possidendi, coupled with the physical possession
thereof.
It would, therefore, appear at first blush that the two offenses having arisen from different criminal
intents, this would be, under the philosophical bases for concurso de delitos, a case of material or
real plurality under which different crimes have been committed and for each of which a separate
criminal liability attaches. The flaw in this approach, however, is that although two crimes have
been committed, they are not altogether separate or disconnected from each other both in law and
in fact. The illegally possessed firearm having been the weapon used in the killing, the former was at
least the necessary, although not an indispensable, means to commit the other.
The situation thus borders closer to the concept of complex crime proper, technically known as a
delito complejo, rather than to the postulate of two separate crimes. It is true that former doctrines
were to the effect that there can be no complex crime where one of the component offenses is
punished by a special law. The rationale therefore was that in a complex crime, Article 48 of the
Code prescribes that the penalty shall be for the graver offense to be applied in its maximum period.
Since, at that time, the penalties for crimes provided in special laws were not divided into periods, it
would be impossible to apply Article 48.
That ratiocination no longer applies now, specifically with respect to the ease at bar, since the
penalties in Presidential Decree No. 1866 were all taken from the scale of penalties in the Code. The
only possible difficulty in this novatory approach would be on the first kind of complex crime, that
is, the delito compuesto since it exists" (w)hen a single act constitutes two or more grave or less
grave felonies." The use of that particular term for the delicts committed bars the application of that
form of complex crime to offenses under Presidential Decree No. 1866, since "felonies" are offenses
provided and defined in the Code.
That objection would not, however, apply to a delito complejo since it is sufficient therefor that "an
offense is a necessary means for committing the other." By these considerations, however, the
writer does not mean to imply that a killing through the use of an illegally-possessed firearm is a
delito complejo under Article 48 of the Code. As was carefully stated, such an offense merely
borders closer to or approximates the concept of a delito complejo, but it thereby emphasizes the
thesis that the offenses should not be considered as separate crimes to be individually punished
under the principle of material plurality.
This premise accordingly brings up the second query as to whether or not the crime should
properly be the aggravated illegal possession of an unlicensed firearm through the use of which a
homicide or murder is committed: It is submitted that an accused so situated should be liable only
for the graver offense of aggravated illegal possession of the firearm punished by death under the
second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point that the writer
dissents from the holding which would impose a separate penalty for the homicide in addition to
that for the illegal possession of the firearm used to commit the former.
If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court
has correctly held that to be the simple possession punished with reclusion temporal in its
maximum period to reclusion perpetua in the first paragraph of Section 1. Where, complementarily,
the unlicensed firearm is used to commit homicide or murder, then either of these felonies will
convert the erstwhile simple illegal possession into the graver offense of aggravated illegal
possession. In other words, the homicide or murder constitutes the essential element for integrating
into existence the capital offense of the aggravated form of illegal possession of a firearm. Legally,
therefore, it would be illogical and unjustifiable to use the very same offenses of homicide or murder
as integral elements of and to create the said capital offense, and then treat the former all over again
as independent offenses to be separately punished further, with penalties immediately following the
death penalty to boot.
The situation contemplated in the second query is, from the punitive standpoint, virtually of the
nature of the so-called ‘special complex crimes," which should more appropriately be called
composite crimes, punished in Article 294, Article 297 and Article 33 5. They are neither of the same
legal basis as nor subject to the rules on complex crimes in Article 48, since they do not consist of a
single act giving rise to two or more grave or less grave felonies nor do they involve an offense being
a necessary means to commit another. However, just like the regular complex crimes and the
present case of aggravated illegal possession of firearms, only a single penalty is imposed for each of
such composite crimes although composed of two or more offenses.
On the other hand, even if two felonies would otherwise have been covered by the conceptual
definition of a complex crime under Article 48, but the Code imposes a single definite penalty
therefor, it cannot also be punished as a complex crime, much less as separate offenses, but with
only the single penalty prescribed by law. Thus, even where a single act results in two less grave
felonies of serious physical injuries and serious slander by deed, the offense will not be punished as
a delito compuesto under Article 48 but as less serious physical injuries with ignominy under the
second paragraph of Article 265. (People v. Lasala, L-12141, January 30, 1962, 4 SCRA 61.) The
serious slander by deed is integrated into and produces a graver offense, and the former is no longer
separately punished.
What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion on
complex and composite crimes, is that when an offense becomes a component of another, the
resultant crime being correspondingly punished as thus aggravated by the integration of the other,
the former is not to be further separately punished as the majority would want to do with the
homicide involved in the case at bar.
With the foregoing answers to the second question, the third inquiry is more of a question of
classification for purpose of the other provisions of the Code. The theory in Tac-an that the principal
offense is the aggravated form of illegal possession of firearm and the killing shall merely be
included in the particulars or, better still, as an element of the principal offense, may be conceded.
After all, the plurality of crimes here is actually sourced from the very provisions of Presidential
Decree No. 1866 which sought to "consolidate, codify and integrate" the various laws and
presidential decrees to harmonize their provisions" which "must be updated and revised in order to
more effectively deter violators" of said laws.
This would be akin to the legislative intendment underlying the provisions of the Anti-Carnapping
Act of 1972 (R.A. No. 6539, August 26, 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 (P.D. No. 532,
August 8, 1974) and the Anti-Cattle Rustling Law of 1974 (P.D. No. 533, August 8, 1974), wherein
the principal crimes still are piracy, highway robbery and cattle rustling. Also, in the matter of
destructive arson (Article 3 20, Revised Penal Code, as last amended by R.A. No. 7659), the principal
offense remains as arson although the same becomes a capital offense when inter alia, death results
as a consequence of the commission of any of the acts punished under said article of the Code.
In the present case, the academic value of specifying whether it is a case of illegal possession of
firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal
possession and use of an unlicensed firearm, would lie in the possible application of the provision
on recidivism. Essentially, it would be in the theoretical realm since, taken either way, the penalty
for aggravated illegal possession of a firearm is the single indivisible penalty of death, in which case
the provision on recidivism would not apply. If, however, the illegal possession is not established
but either homicide or murder is proved, then the matter of recidivism may have some significance
in the sense that, for purposes thereof, the accused was convicted of a crime against persons and he
becomes a recidivist upon conviction, or another crime under the same title of the Code.
Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed when
the unlawful killing and the illegal possession are charged in separate informations, from what has
been said the appropriate course of action would be to consolidate the cases and render a joint
decision thereon, imposing a single penalty for aggravated illegal possession of firearm if such
possession and the unlawful taking of life shall have been proved, or for only the proven offense
which may be either simple illegal possession, homicide or murder per se. The same procedural rule
and substantive disposition should be adopted if one information for each offense was drawn up
and these informations were individually assigned to different courts or branches of the same court.
Indeed, the practice of charging the offense of illegal possession separately from the homicide or
murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers
and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily be
known to the police or prosecutorial agencies, the only probable problem being the determination
and obtention of evidence to show that the firearm is unlicensed.
Now, if a separate information for homicide or murder is filed without alleging therein that the same
was committed by means of an unlicensed firearm, the case would not fall under Presidential
Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging the lack of a
license therefor as where that fact has not yet been verified, the mere use of a firearm by itself, even
if proved in that case, would not affect the accused either since it is not an aggravating or qualifying
circumstance.
Conversely, if the information is only for illegal possession, with the prosecution intending to file
thereafter the charge for homicide or murder but the same is inexplicably delayed or is not
consolidated with the information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other hand, the separate and
subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree No.
1866 cannot be achieved since the penalty imposable in that second prosecution will only be for the
unlawful killing and further subject such modifying circumstances as may be proved.
In any event, the foregoing contingencies would run counter to the proposition that the real offense
committed by the accused, and for which sole offense he should be punished, is the aggravated form
of illegal possession of a firearm. Further, it is the writer’ s position that the possible problems
projected herein may be minimized or obviated if both offenses involved are charged in only one
information or that the trial thereof, if separately charged, be invariably consolidated for joint
decision. Conjointly, this is the course necessarily indicated since only a single composite crime is
actually involved and it is palpable error to deal therewith and dispose thereof by segregated parts
in piecemeal fashion. (Italics supplied for emphases, with some footnotes in the original opinion
being incorporated in the text by way of documentation.)
With appropriate respect for the opinions en contra, I take this opportunity not only to elaborate
upon and further clarify my aforequoted views in Barros but, hopefully, to also cleanse the
expanding framework of our criminal law from ideas which have not grown apace with conceptual
changes over time.
My position in Barros is challenged as being a novel theory which sets aside the doctrine followed in
some cases previously decided by the Court and the rationale on which they were based. That is
understandable, since the inertia of time has always been the obstacle to the virtues of change. That
mind-set appears to predominate in the action of the majority in the instant cases.
However, it is precisely for that reason that we are now reviewing those doctrines, as we have done
in a number of cases before, instead of taking a stance of infallibility. And, if it does turn out that we
are mistaken, then in law and in conscience we must act accordingly, for, as has been said, the
beauty of a mistake is that it can be corrected; the tragedy is that it can be perpetuated.
I 9 Of more recent memory was the spate of conflicting positions on the penalty for illegal possession
1. It is obvious that our present problem had its origin in the aforecited case of People v. Tac-an
where the controversial theory was first laid down that since one offense (illegal possession of an
unlicensed firearm) is penalized under a special statute while the other (murder) is punished under
the Revised Penal Code, they can be validly prosecuted and punished separately. The trial court
imposed the death penalty in each of said cases, the offenses having been committed in 1984 with
the decision rendered therein in 1986, but this Court modified those sentences to two penalties
of reclusion perpetua because of the supervenience of the 1987 Constitution. Significantly, it was
explicitly accepted therein that" (a)lthough the circumstance that human life was destroyed with
the use of an unlicensed firearm is not an aggravating circumstance . . . it may still be taken into
account to increase the penalty to death (reclusion perpetua under the 1987 Constitution) because
of the explicit provision of P.D. No. 1866."cralaw virtua1aw library
2. That mother case of Tac-an gave birth to a progeny of identically-based decisions, the first being
People v. Tioson 3 where, in addition to the rationale that the offenses were punished under
separate laws, the theory of separate penalties was further sought to be justified thus: "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."cralaw virtua1aw library
3. Next came People v. Caling 4 which is notable for lucidly laying down the distinction between
what it categorized for easy reference as the simple and aggravated forms of illegal possession of
unlicensed firearms, although it adhered to the theory of separate offenses where a killing is
involved but hewing only to the reason that this is because these offenses are punished by separate
laws, as theorized in Tac-an. In Caling, however, the accused was acquitted and no application of
penalties was actually made.
4. People v. Jumamoy 5 sustained separate convictions for murder and the aggravated form of illegal
possession of an unlicensed firearm on the same rationale as Tioson, with an added advertence to
People v. Doriguez 6 that such separate convictions will theoretically not run afoul of the
prohibition against double jeopardy.
5. This was followed by People v. Deunida 7 where, on two charges for murder and aggravated
illegal possession of firearms, the accused was convicted only of the latter offense since the
prosecution withdrew the charge for murder. The Court, in this case, considered the withdrawal of
the indictment for murder as erroneous on the bases of the doctrines in Tac-an, Caling and Tioson.
6. In People v. Somooc, 8 the accused who committed homicide with the use of an illegally possessed
unlicensed firearm was charged with and convicted of the aggravated form of illegal possession and
punished by reclusion perpetua since the offense was committed in 1988. The Court called attention
to the doctrine and ratiocination in Caling.
II
It will, therefore, be observed that "the settled ruling in the aforementioned cases" is actually a skein
drawn from the same single thread originally introduced by Tac-an and stitched into the
jurisprudential fabric with some permutative designs. It is not necessarily "unfortunate if we should
suddenly depart therefrom" where the benefit of a second view and the grace of hindsight dictate
such a course of action.
The Court will recall the series of cases, when the proscription against the imposition of the death
penalty was still upon us, wherein we initially provided in our decisions different and inconsistent
rules on the proper periods of the penalty for murder, at that time punishable by reclusion temporal
in its maximum period to death. We eventually settled on reclusion perpetua as the medium period.
and traffic in dangerous drugs, and the amendments brought about by Republic Act No. 7659, until
we arrived at a solution in People v. Simon. 10 Nobody was heard to complain that we were running
afoul of the doctrine of stare decisis, as now appears to be the stance of the majority.
Indeed, if hard cases make bad law, bad law also makes hard cases, whether what is involved is
statutory or case law. Of course, in discharging our duty of judicial interpretation, there may be not
only merit but also facility, if not the expediency of the slothful path of least resistance, in just
adopting the rule of uniformity on the bases of past decision. But, equally as commendable as the
doctrine of stare decisis itself, is the well-known and ancient wisdom in the reminder that such
doctrine does not mean blind adherence to precedents.
III
Obviously, because of the reasoning in Tac-an, the majority opinion emphasizes that in imposing a
single penalty of reclusion perpetua for the qualified violation of Presidential Decree No. 1866 and
treating murder merely as an element of the statutory offense, an incongruous situation results
wherein a more serious crime under the Revised Penal Code, which is malum in se, is absorbed by a
lesser offense under a special law which is only malum prohibitum. Hence, it was urged during the
deliberations that we should not adopt a novel doctrine which rests on a shaky foundation.
1. The basic premise of this argument is definitely off-tangent. The penalty for the aggravated illegal
possession of unlicensed firearm, in the terminology of Caling, is the single indivisible penalty of
death which would be imposable regardless of the generic modifying circumstances 11 or of
whether the killing constitutes murder or homicide. The penalty under Presidential Decree No.
1866 is, therefore, decidedly higher than that for murder, although it is now reclusion perpetua to
death in Republic Act No. 7659, and, being thereby covered by Article 63 of the Code, will be
reduced to reclusion perpetua in the absence of aggravating circumstances. Of course, it does not
even have to be pointed out that the penalty for homicide is only reclusion temporal in its entire
extent.
2. Even assuming arguendo that the penalty for the aforesaid taking of human life could be higher
than the penalty for aggravated illegal possession which would absorb the former, that is not an
unheard-of or earthshaking legal tableau. The objections to the doctrine of absorption here is
reminiscent of what Judge Agustin P. Montesa reportedly stated, as quoted in People v. Hernandez,
Et Al., 12 that: "The theory of absorption tenaciously adhered to by the defense to the effect that
rebellion absorbs all these more serious offenses is preposterous, to say the least, considering that it
is both physically and metaphysically impossible for a smaller unit or entity to absorb a bigger one.
Unfortunately, that astute observation was rejected by this Court, and advisedly so, since we are
bound by legal precepts and not by physical or metaphysical laws. It is now an accepted dictum that
the life of the law is not necessarily logic but experience. These considerations must have prompted
the Court to also defend the doctrine of absorption in treason cases, 13 holding that more serious
offenses committed for treasonous purposes are absorbed in the former, with the piquant
observation in Labra that" (t)he factual complexity of the crime of treason does not endow it with
the functional ability of worm multiplication or amoeba reproduction."cralaw virtua1aw library
In the scheme of penalties under the Revised Penal Code, it is accepted that a lesser offense may
absorb a graver offense. As already stated, the lesser offense of rebellion which is punished by
prision mayor absorbs the graver offense of murder which is now punished by reclusion perpetua to
death, and all other offenses even with higher penalties if committed in furtherance of rebellion. 14
On a lower level comparison and closer to the case at bar, the lesser offense of forcible abduction
which is punished by reclusion temporal 15 absorbs the graver offense of illegal detention of a
woman which is punished by reclusion perpetua to death. 16 The lower offense of slavery involving
the kidnapping of a person which is punished by prision mayor 17 absorbs the higher offense of
kidnapping which is punished by reclusion perpetua to death.18
3. Neither should the fact that the aggravated form of illegal possession of an unlicensed firearm is a
malum prohibitum punished by a special law inveigh against the doctrine of absorption we have
adopted in Barros. In fact, as hereinbefore quoted, Tac-an recognized that the killing should be
taken into account to increase the penalty to death because of the explicit provision of Presidential
Decree No. 1866.
In People v. Simon, ante, we traced the legal history of crimes punished under special laws, from the
time they were divided by a seemingly impermeable membrane, because of their American origin
and formulation, from felonies under the Revised Penal Code, which are of Spanish vintage. We
explained how the legal development of adopting the scheme of penalties in the Revised Penal Code
and applying them to those punished by special laws, markedly starting with subversion in Republic
Act No. 1700, resulted in the consequent selective applicability of some provisions of the Code to
special laws, absent an express or implicit prohibition against such vicarious application. There is
decidedly no insuperable obstacle now to the application of the doctrine of absorption to offenses
provided for or contemplated in Presidential Decree No. 1866.
4. Nor should we hold a "judicial prejudice" from the fact that the two forms of illegal possession of
firearms in Presidential Decree No. 1866 are mala prohibita. On this score, I believe it is time to
disabuse our minds of some superannuated concepts of the difference between mala in se and mala
prohibita. I find in these cases a felicitous occasion to point out this misperception thereon since
even now there are instances of incorrect assumptions creeping into some of our decisions that if
the crime is punished by the Revised Penal Code, it is necessarily a malum in se and, if provided for
by a special law, it is a malum prohibitum.
It was from hornbook lore that we absorbed the distinctions given by text writers, claiming that: (1)
mala in se require criminal intent on the part of the offender; in mala prohibita, the mere
commission of the prohibited act, regardless of intent, is sufficient; and (2) mala in se refer to
felonies in the Revised Penal Code, while mala prohibita are offenses punished under special laws.
The first distinction is still substantially correct, but the second is not accurate. In fact, even in the
Revised Penal Code there are felonies which are actually and essentially mala prohibita. To
illustrate, in time of war, and regardless of his intent, a person who shall have correspondence with
a hostile country or territory occupied by enemy troops shall be punished therefor. 19 An
accountable public officer who voluntarily fails to issue the required receipt for any sum of money
officially collected by him, regardless of his intent, is liable for illegal exaction. 20 Unauthorized
possession of picklocks or similar tools, regardless of the possessor’s intent, is punishable as such
illegal possession. 21 These are felonies under the Revised Penal Code but criminal intent is not
required therein.
On the other hand, I need not mention anymore that there are now in our statutes so many offenses
punished under special laws but wherein criminal intent is required as an element, and which
offenses are accordingly mala in se although they are not felonies provided for in the Code.
IV
1. From the foregoing discussion, I regret that I cannot agree with the rationalization of the majority
that two separate penalties must be imposed on the same accused because he is supposed to have
committed two separate offenses of (1) illegal possession with murder, and (2) the same murder
per se. The unusual justification is that in the first offense, the murder is not considered as a
separate offense but only to increase the penalty for the illegal possession, and in the second
offense, that same murder shall now be considered as a separate offense in itself. To make this
theory palatable, the example is given that if the murder is committed with an unlicensed firearm,
the death penalty is imposable, whereas if it is committed with a licensed firearm, the penalty shall
only be reclusion perpetua.
This concern is evidently due to the fact that Republic Act No. 7659, which "reimposed" the death
penalty for certain heinous crimes, does not include the offense that we have termed as aggravated
form of illegal possession of firearms which is provided for in the second paragraph of Section 1,
Presidential Decree No. 1866. It approximates, therefore, an obsessive desire to impose a higher
penalty, even if thereby basic principles of criminal law and the clear provisions of Presidential
Decree No. 1866 are to be disregarded. Should that intent to impose the present penalty for murder,
be subserved by charging that crime separately and then prosecuting the offender again for using
the firearm with which he committed the same murder? And, will that objective be achieved if the
crime is homicide which has not been affected by Republic Act No. 7659 but will thereby also be
subjected to the same double prosecution under the reasoning of the majority?
It has always been my position that the death penalty was not "abolished" by the 1987 Constitution,
since I had some participation in formulating the provision involved. It merely provides that the
same shall not "be imposed, unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it," 22 that is, authorizes its imposition. Meanwhile, all laws which provided
for the death penalty remained in force and were maintained in the statute books despite that
constitutional provision since it did not by itself have the effect of amending or repealing them.
Some of those laws were later expressly repealed or amended by the President in the exercise of her
then legislative powers and, thereafter, some were repealed or modified by Congress, which even
added other heinous crimes with capital penalties. However, other laws like Presidential Decree No.
1866, which were not thus repealed or amended, retain their present provisions and effects, except
that the death penalty provided by them would in the meantime be reduced to reclusion perpetua.
Parenthetically, why should the laws concerned be deemed amended or repealed if the death
penalty provided for therein had already been "abolished" by the Constitution?
Republic Act No. 7659 did not "reimpose" the death penalty on murder. Article 248 of the Penal
Code, which provided for the penalty of reclusion temporal in its maximum period to death for that
crime, was amended by Republic Act No. 7659, merely to increase the penalty to reclusion
perpetua to death, but it remained in full force even during the interim except for the fact that the
penalty of death could not then be imposed. That is why the title of Republic Act No. 7659 is "An act
to Impose the Death Penalty in Certain Heinous Crimes, Amending for that purpose, the Revised
Penal Code, . . ." The same is true with respect to the aggravated form of illegal possession of
firearms, except that the imposition of the death penalty thereunder is still proscribed.
2. Even if we were to indulge the majority in its thesis on the effects of Republic Act No. 7659 on
Presidential Decree No. 1866, that is, that by the non-inclusion in the former of the aggravated form
of illegal possession with murder the death penalty cannot be imposed for the murder, that fact
does not warrant and cannot justify the recourse it has adopted as a judicial dictum. The second
paragraph of the aforestated Section 1 expressly and unequivocally provides for such illegal
possession and resultant killing as a single integrated offense which is punished as such. The
majority not only created two offenses by dividing a single offense into two but, worse, it resorted to
the unprecedented and invalid act of treating the original offense as a single integrated crime and
then creating another offense by using a component crime which is also an element of the former.
It would already have been a clear case of judicial legislation if the illegal possession with murder
punished with a single penalty had been divided into two separate offenses 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 offense as specifically described by the law and
impose reclusion perpetua therefor (since the death penalty for that offense 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.
3. The fact that the aggravated form of illegal possession with murder was not included in Republic
Act No. 7659 is a matter for Congress, and not for this Court, to remedy. A legislative terrain with
gaps of omission in the statute is not terra incognita to the courts, familiar as we are with instances
thereof. The legislature may have committed such omissions in the law for reasons of its own or
through unintended oversight but, unless judicial remedy is constitutionally permissible, and in the
cases at bar it is not, the courts must await the legislative remedy of amendment or repeal of that
law.
For illustration, we can just again refer to the impasse earlier discussed regarding the logically
absurd penalties for kidnapping in Article 267, in relation to forcible abduction of a woman under
Article 342 and kidnapping for slavery in Article 272, all of the Revised Penal Code. A reading of
Republic Act No. 18 23 and Republic Act No. 1084 24 readily reveals that it was the purpose of
Congress by corresponding amendment of the other related provisions of the Code, to pull all forms
of kidnapping and serious illegal detention in Article 267. Yet, in the process, that objective was not
fully subserved by the two amendatory laws since forcible abduction of a woman, which necessarily
involves her kidnapping and detention, as well as kidnapping for the purpose of enslaving the
victim, were overlooked and not included in the provisions of Article 267.25cralaw:red
These instances are presented to project the discrepancies in what should be the appropriate
penalties for the aforesaid offenses involved because of their omission by Congress in the logical
taxonomy of crimes. Yet, the Judiciary stands bound by the aforementioned state of the law on the
matter, and has not attempted to exercise the power reserved for legislative amendment to suit its
perceptions on what the penalties should be for forcible abduction and slavery. Similarly, the
disposition in the cases at bar is grounded on the omission or non-inclusion of murder through the
use of an illegally possessed firearm in the heinous crimes subject of Republic Act No. 7659. But,
instead of respecting the legislative formulation, the majority has contrarily decided to disregard
the clear import of Presidential Decree No. 1866 and opted to impose two penalties for what it
considers as two offenses through a bifurcated interpretation.
4. Following that treatment, is the Court now prepared to adopt the same procedure with regard to
similar offenses punished under other decrees? For example, Presidential Decree No. 5327, 26
punishes highway robbery with murder or homicide with the mandatory penalty of death. Since this
offense has not been included in Republic Act No. 7659 and the death penalty cannot be imposed,
shall this Court also follow the same procedure of imposing the penalty of reclusion perpetua for the
highway robbery with murder (or homicide) under Presidential Decree No. 532, and then further
impose the death penalty for the same murder under Article 248 of the Revised Penal Code?
Again, Presidential Decree No. 533 27 imposes the penalty of reclusion perpetua to death if a person
is killed as a result of cattle rustling. This offense has not been included in Republic Act No. 7659,
hence the penalty can only be reclusion perpetua. By adopting the same rationale in the case at bar,
shall the Court then impose the penalty of reclusion perpetua for cattle rustling pursuant to
Presidential Decree No. 533 and then, if the killing constitutes murder attended only by an
aggravating circumstance, should it then impose another penalty of death for the same murder
under Article 248 of the Code?
Still further, Presidential Decree No. 534 28 provides that if illegal fishing with the use of explosives
or noxious or poisonous substances results "in the loss of human life, then the penalty shall be
imprisonment from 20 years to life, or death." This offense is not provided for in Republic Act No.
7659, hence the death penalty cannot be imposed; but the killing could conceivably constitute
murder since the use of explosion or poison is a qualifying circumstance. The inevitable question
that must again be posed, based on the theory adopted here by the majority, is whether or not the
illegal fishing with murder shall be punished with life imprisonment at most under Presidential
Decree No. 534, and then, if only an aggravating circumstance is present therein, the accused must
also be given another penalty of death under Article 248 of the Code.
We can easily multiply what are clearly perceivable as the dangerous consequences of the solution
contrived by the majority of creating two offenses and imposing two penalties. I have, however,
chosen the foregoing illustrations involving acts punished under both a presidential decree and the
Revised Penal Code, with murder as a common denominator, to make my analogies as close as
possible to that involving Presidential Decree No. 1866 in these cases. In truth, the same
problematic situation could be raised and created against any composite felony in the Code which is
considered as a unitary offense and punished by a single penalty, if the majority’ s novel theory of
duality of offenses with double penalties were to be applied thereto.
It is rather pointless to essay an unnecessary distinction between the phrase "as a result or on the
occasion of" which refers to the killing committed in the course of violating Presidential Decrees
Nos. 532, 533 and 534, and the killing "with the use" of an illegally possessed firearm contemplated
in Presidential Decree No. 1866. Incidentally, the equivalent phrase used in the special complex
crimes in Articles 294 and 297 of the Code, in referring to the deaths caused by the malefactor, is
"by reason or on occasion of" the different stages of the robbery therein. But the common
denominator and identity among all the aforesaid composite crimes, for purposes of the issue under
consideration, is that there is a principal offense, which is separately punishable, and an unlawful
killing with a direct nexus to or connection with that principal offense is also committed.
What is then the focus of the inquiry in the present case which applies with equal force to the
aforestated composite crimes is merely whether or not, apart from and in addition to the penalty
imposable on the offender if he violates any of the foregoing decrees or commits robbery in any of
its stages and which penalty is increased precisely if accompanied by an unlawful killing, he should
be further and separately punished for such homicidal or murderous taking of human life. The
implacable question is whether or not two separate penalties should be imposed on him for killing
the same victim since those decrees and the Code already provide a single but increased penalty for
the crimes therein if accompanied by an unlawful killing and thereby constituting a composite
crime. Whether the death of the victim supervened as "a result or on the occasion," or "by reason or
on occasion," or "with the use" of the firearm or poisonous substances availed of by the accused is
immaterial even if liberally viewed in the context of the mens rea as proposed by the majority.
5. Prescinding from the substantive aspect and shifting to the procedural and constitutional view, I
am also bothered by the impact of the majority opinion upon the rule on double jeopardy. I am
referring, of course, to double jeopardy arising from prosecutions for the same offense under two or
more laws as contemplated in the Rules of Court, 29 and not to the special situation under the
Constitution 30 involving a prosecution for the same act punished under a law and an ordinance, as
clarified in People v. Relova, etc., Et. Al. 31 In the first kind of double jeopardy for purposes of this
discussion, what is determinative is the identity of the offense, hence the "same-evidence" test
applies, that is, that the facts alleged and proven in one charge would, based on the same evidence,
suffice to support the second charge, and vice-versa. 32 Accordingly, the citation by the majority of
People v. Doriguez 33 is of no moment, since it refers to a single act offending against two entirely
distinct and unrelated provisions of law one of which requires proof of an additional fact or element,
hence different and not identical offenses are involved.
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 different 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? 34
In fact, we can extrapolate this 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 offense of 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 offense was an indispensable
component for the other composite offense of illegal possession of firearm with murder? Why
would the objection of non bis in idem as a bar to a second jeopardy lie in the preceding examples
and not apply to the cases now before us?
The majority comes up with the so-called "additional element" test to take the issue out of the rule
on double jeopardy, citing for that purpose Yap v. Lutero 35 and People v. Relova, etc., Et. Al. 36
These cases are not actually in point since they are primarily concerned with the question of double
jeopardy where the same offense is punished by two statutes or different sections of the same
statute, as contrasted with double jeopardy arising from the same act punished by a law and
likewise by an ordinance, as has earlier been explained. The distinction is not germane here since
there is no punitive ordinance involved in the case at bar. This proposition of the majority, however,
bears discussion.
I do not gainsay the validity of the "additional element test," if properly understood and correctly
applied. As I have written elsewhere, it is a cardinal rule that the protection against double jeopardy
may be invoked only for identical offenses or where an offense necessarily includes or is necessarily
included in the other offense. However, it has also long been held that a single act may offend
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. 37 That is because
the two offenses continue to exist independently of each other, with their respective penalties
remaining unaffected by the commission of or penalty for the other offense.
This is illustrated by the considerations in the present rule that Batas Pambansa Blg. 22, which
punishes the mere issuance of bouncing checks, is not a bar to another prosecution for estafa
through the use of bouncing checks under paragraph 2(d), Article 315 of the Revised Penal Code. 38
The rationale therefor is that the issuance per se of a bouncing check is ipso jure punishable under
Batas Pambansa Blg. 22, but to be punishable as estafa under the Code, the additional elements of
deceit and damage are required. Also, while the former offense requires the drawer’ s knowledge of
lack or insufficiency of funds in the drawee bank at the time the check is issued, the aforesaid
provision on estafa does not so require. The penalty for the former is fixed by Section 1 of said law
without regard to the damage caused or even without such damage, whereas the penalty for estafa
through bouncing checks is determined by the damage to the offended party. 39 Lastly, Section 5 of
Batas Pambansa Blg. 22 provides that prosecution thereunder "shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code."cralaw virtua1aw library
These features are absent in the integrated offense of murder or homicide with the use of an
illegally possessed firearm. It is true that mere illegal possession has a specific lower penalty in
Presidential Decree No. 1866, and murder or homicide have their own specific penalties in Articles
248 and 249 of the Code. However, the moment both erstwhile separate offenses juridically unite,
we have what for expediency has been called by this Court an aggravated form of illegal possession
of firearm punishable by the two highest penalties of reclusion perpetua to death. We cannot speak
here, therefore, of the "additional element test" which presupposes and requires that the two
offenses remain distinct from each other with the discrete penalty for one being immune from that
for the other. What, instead, transpired in Presidential Decree No. 1866 is a unification or merger in
law of both offenses of illegal possession of firearm and murder or homicide, with each of them
becoming a component offense in a new and different composite crime punished by another and
gravely higher penalty.
V
1. The apprehension was also aired in our deliberations that the ruling in Barros may provide
dishonest prosecutors with unfettered discretion to charge parties who commit illegal possession of
firearms in its aggravated form not with the said offense but only with homicide or murder with one
qualifying circumstance, and without any generic aggravating circumstance, so that by such strategy
the accused would thereby get only the minimum period of the penalty.
As long as we live in a world of men and not of angels, there will always be that legitimate fear over
the possible excesses of officialdom. There are, however, a plenitude of remedies provided by law
for such a contingency, either criminal, civil or administrative in nature. In fact, if that act of the
public prosecutor amounts to a refusal to perform a specific duty imposed on him by law, his
nonfeasance could even be controlled by an action for mandamus and he can be compelled to charge
the proper offense in the information. 40
2. Again, drawing from the experience in Deunida where only the aggravated illegal possession
charge proceeded while that for homicide was withdrawn, then on the submission that no private
interest had to be protected therein, no private prosecutor could appear for the victim. Indeed, it
was stated in said case: "No private interest is therefore involved. The civil liability arising from
death may be the subject of a separate civil action or impliedly instituted with the criminal action
for murder or homicide." The Court then ordered the deletion of the award of civil liability ex
delicto.
It is my stand that even under such circumstances, the trial court may justifiedly assess and award
the corresponding damages to the heirs of the victim. This is not one of the so-called "victimless
crimes" where, by the very nature of the crime, no damages can possibly be sustained by a private
party, such as espionage, violation of neutrality, flight to enemy country or crimes against popular
representation. 41 Where the victim was killed under the circumstances contemplated in
Presidential Decree No. 1866, I see no reason why the case should be excepted from the
fundamental rule that every person criminally liable is civilly liable. 42 Thus, while the crime of
rebellion is directed against the Government, yet in the rebellion cases decided by this Court,
corresponding awards for civil damages were invariably granted so long as the offense which
caused the damage was proved and the victim and the malefactor or the property involved were
duly identified by satisfactory evidence.
3. The advertence to People v. De Gracia, Et Al., 43 the decision wherein was penned by this writer,
overlooks or fails to mention that the same was decided under the aegis of the doctrines in the cases
hereinbefore enumerated, specifically the Tioson case, to which we then had to defer as they
constituted the prevailing rule, but which are now sought to be revisited in the instant case in light
of Barros.
The statement in De Gracia that" (i)t was a legal malapropism for the lower court to interject the
aforestated provision of the Revised Penal Code in this prosecution for a crime under a special law,"
referred to the action of the trial court in recommending executive clemency for the accused.
Although there are some contrary views on the matter, the writer held that Article 5 of the Code
does not apply to convictions under a special law where such application, as earlier stated, is
expressly or impliedly prohibited. Said Article 5 expressly provides for the authority of the court to
recommend executive clemency "when a strict enforcement of the provisions of this Code would
result in the imposition of a clearly excessive penalty." Since, at that time the legal interplay
between Presidential Decree No. 1866 and the penalties "borrowed" for it from the Revised Penal
Code was still amorphous, this writer had to make those pronouncements in said case, but,
precisely, the same are now being reexamined in the present cases.
I am aware that I have raised a number of what may appear as discomposing views but these should
provoke a more thorough reexamination of the issues on these cases. On the other hand, I
apprehended that the decision handed down herein may have opened a Pandora’s box of legal
curiosities and the swarm thus released will in due time return to the Court to roost. I can only hope
that the Court’s mavens of penal law who are responsible for the majority opinion here can fortify
the same to meet the diverse and adverse reactions that it will predictably create.
On the foregoing premises, I respectfully but vigorously register my dissent on the points indicated
and for the reasons advanced therefor.
Narvasa, C.J., Romero, Puno, Vitug, Kapunan and Mendoza, JJ., concur and dissent.
HERMOSISIMA, JR., J., concurring:chanrob1es virtual 1aw library
Murder, most foul for betraying a depraved heart, is the inordinate killing of a human being,
unlawfully and with premeditated malice, willfully, deliberately, a felony described in and penalized
under Article 248 of the Revised Penal Code.
On the other hand, the unlawful possession of an unlicensed firearm, that artifice consisting
essentially of a straight tube to propel a shot, shell or bullet by the explosion of gunpowder, is
penalized as the offense of Illegal Possession of Unlicensed Firearm by Presidential Decree No. 1866
of martial law vintage.
Against accused-appellant Daniel Quijada y Circulado were filed the two aforestated cases: Murder,
Criminal Case No. 8178 and Illegal Possession of an Unlicensed Firearm, Criminal Case No. 8179
"which firearm was carried by the said accused outside of his residence and was used by him in
committing the crime of murder" in violation of paragraph 2, Section 1, of Presidential Decree (P.D.)
No. 1866. After a joint trial, the trial convicted accused-appellant in both cases and sentenced him to
suffer the penalty of Reclusion Perpetua for the crime of Murder and imprisonment a period of
Seventeen (17) Years, Four (4) Months and One (1) Day, as minimum, to Twenty (20) Years and One
(1) Day, as maximum, for the offense of Qualified Illegal Possession of Unlicensed Firearm penalized
under the aforecited P.D. No. 1866.
There is no question that, as found by the majority, the crime of Murder and the offense of Illegal
Possession of Firearm had been established by evidence beyond the shadow of doubt.
While the majority affirms the twin conviction of the accused-appellant in both Criminal Case No.
8178 for Murder and Criminal Case No. 8179 for Illegal Possession of an Unlicensed Firearm, the
minority asserts the dissenting opinion that, as in People v. Barros, 1 accused-appellant may only be
convicted of the offense of Illegal Possession of Unlicensed Firearm in its aggravated form, inferring
that the crime of Murder has been absorbed by that offense or rather that the two (2) crimes may be
said to have been complexed with each other.
While the teleological debate on whether criminal punishment is justified as retribution or as
reformation continually rages, hardly disputable is the static view and unchanged reality that the
primordial justification for punishing any man is that he has broken the law. While in Anglo-
American jurisdictions, there exist what are known as common law offenses, in our jurisdiction, no
act is a crime unless it is made so by statute. 2 Every law enacted by the legislature for the restraint
and punishment of crimes and for the preservation of the public peace, health and morals comes
within the police power of the State. 3
"The right of prosecution and punishment for a crime is one of the attributes that by a natural law
belongs to the sovereign power instinctively charged by the common will of the members of society
to look after, guard and defend the interests of the community, the individual and social rights and
the liberties of every citizen and the guaranty of the exercise of his rights." 4
In the exercise of its right, duty and power to determine and define crimes and their corresponding
penalties, the lawmaking body is initially and usually guided by the general condition of penal
liability under the legal maxim, "actus non facit reum, nisi mens sit rea," which, if freely translated,
means that "an act is not criminal unless the mind is criminal." On the basis of this, which is
commonly known as the mens rea doctrine, our Revised Penal Code was enacted to largely penalize
unlawful acts accompanied by evil intent which are denominated en masse as crimes mala in se. The
paramount consideration here is the existence of a malicious intention borne out by the
concurrence of freedom, intelligence and intent which altogether make up the "criminal mind"
behind the resultant "criminal act" .
It is not always, however, that the evil to society anent a criminal act depends upon the state of mind
of the offender. And no less valid, critical and indispensable is the prerogative of the legislature,
through special enactments, to forbid the doing of a particular act and legislate the commission of
such act to be a crime, regardless of the intent of the doer.
"In many crimes, made by statutory enactment, the intention of the person who commits the crime
is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would
be substantially worthless. It would be impossible of execution. In many cases the act complained of
is itself that which produces the pernicious effect which the statute seeks to avoid. In those cases,
the pernicious effect is produced with precisely the same force and result whether the intention of
the person performing the act is good or bad. . . . It is quite different from that large class of crimes,
made such by the common law or by statute, in which the injurious effect upon the public depends
upon the corrupt intention of the person perpetrating the act." 5
In general, it may be said that there must be malus animus or a criminal intent. But there is also a
class of crimes known as crimes mala prohibita which, on the broad grounds of public policy,
criminalize certain acts without the usual requisite proof of the intent of the actor to commit the
crime.
"In the case of The State v. McBrayer (98 N.C, 623) this court stated:chanrob1es virtual 1aw library
‘It is a mistaken notion that positive, willful intent to violate the criminal law is an essential
ingredient in every criminal offense, and that where there is an absence of such intent there is no
offense, this is especially true as to statutory offenses. When the statute plainly forbids an act to be
done, and it is done by some person, the law implies conclusively the guilty intent, although the
offender was honestly mistaken as to the meaning of the law he violates. When the language is plain
and positive, and the offense is not made to depend upon the positive, willful intent and purpose,
nothing is left to interpretation.’
x x x done freely and consciously.
Care must be exercised in distinguishing the difference between the intent to commit the crime and
the intent to perpetrate the act. The accused did not consciously intend to commit a crime; but he
did intend to commit an act, and that is, by the very nature of things, the crime itself-intent and all.
The working of the law is such that the intent and the act are inseparable. The act is the crime." 6
Indeed, to distinguish between crimes mala in se and mala prohibita by simply pointing out that the
former refer to felonies in the Revised Penal Code while the latter are punished under special laws,
does not amount to much, for there are indeed felonies that are penalized regardless of the felon’s
criminal intentions, and conversely, there are also special offenses that require proof of criminal
intent.
Whether or not in a given case the statute is to be construed as forbidding the doing of an act and
criminalizing the same without regard to the intent of the perpetrator of the act, is to be determined
by the court by considering the subject matter of the prohibition as well as the language of the
statute, thereby ascertaining the intention of the lawmaker. The index of whether or not a crime is
malum prohibitum is not its form, that is, whether or not it is found in the Revised Penal Code or in a
special penal statute, but the legislative intent that underlies its continuing existence as part of the
law of the land.
"Considering the nature of the offense, the purpose to be accomplished, the practical methods
available for the enforcement of the law, and such other matters as throw light upon the meaning of
the language, the question in interpreting a criminal statute is whether the intention of the
legislature was to make knowledge of the facts an essential element of the offense, or to put upon
everyone the burden of finding out whether his contemplated act is prohibited, and of refraining
from it if it is." 7
In this light, we have not just a few times precisely delineated the malum prohibitum nature of P.D.
No. 1866, which is a codification of the laws on unlawful possession of unlicensed firearms, among
others.
As has been aforesaid, in determining whether or not an offense is malum prohibitum or not, the
relevant inquiry must concern the legislative intent as to the requirement of criminal intent or lack
thereof. In this respect, the discussion of Justice Regalado in People v. De Gracia 8 is
appropriate:jgc:chanrobles.com.ph
"The first issue to be resolved is whether or not intent to possess is an element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant . . . did intend to
illegally possess firearms and ammunition.
The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition . . .
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
In the present case, 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." 9
In its enactment, P.D. No. 1866 was undoubtedly intended as a substantial measure in response to
the perennial problem of law enforcement and public order and safety. Thus, we always pointed out
that P.D. No. 1866 was passed because of an upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, which crimes have
resulted in loss of human lives, damage to property and destruction of valuable resources of the
country. 10
The aforecited public policy concern justified the blanket prohibition in P.D. No. 1866 against mere
possession of unlicensed firearms, among others, without regard to the criminal intent of the
possessor. Indeed, what is being punished is the illegal possession, among others, of unlicensed
firearms.
"What the decree does is to define the offense and provide for the penalty that may be imposed,
specifying the qualifying circumstances that would aggravate the offense. There is no encroachment
on the power of the court to determine after due hearing whether the prosecution has proved
beyond reasonable doubt that the offense of illegal possession of firearms has been committed and
that the qualifying circumstances attached to it has been established also beyond reasonable doubt
as the Constitution and judicial precedents require." 11
Insofar as material to the present case, what is penalized is the sole, simple act of a person who
shall, among others, "unlawfully possess any firearm." The gravamen of the offense is the fact of
possession of a firearm without a license or authority for such possession. 12 It is only the offense of
Illegal Possession of Unlicensed Firearm that is, in the corporeal and material sense, provided for
and defined in Section 1 of P.D. No. 1866. The penalty therefor, however, is another matter.
It is undisputed that P.D. No. 1866 was validly enacted in 1983 in the exercise of legislative powers
by then President Marcos under the 1973 Constitution, which powers inherently included the
prerogative to prohibit certain acts perceived by the lawmaker to be substantially prejudicial to the
public interest. Thus, Section 1 forbids the possession by any person of a firearm for which he does
not have the proper license and/or authority. The sole act forbidden, prohibited and thereby
criminalized is the illegal possession of an unlicensed firearm. That is all. However, while the offense
penalized is singular, the penalties for such offense are plural and are distinguished from each other
by certain circumstances which the lawmaker considered to be valid reasons to impose penalties
heavier than the others. Thus, as a whole, the pertinent portion of said decree provides, to
wit:jgc:chanrobles.com.ph
"Section 1. Unlawful Manufacture, Sales, 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 firearms, 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.
If the violation of this Section is in furtherance of, or incident to, or in connection with crimes of
rebellion, insurrection, or subversion, the penalty of death shall be imposed.
x x x" 13
The circumstances (1) that homicide or murder is committed with the use of an unlicensed firearm
and (2) that the illegal possession of unlicensed firearm is committed in furtherance of, or incident
to, or in connection with the crimes of rebellion, insurrection or subversion, only qualify or
aggravate the offense of Illegal Possession of Unlicensed Firearm for purposes of increasing the
penalty therefor. These circumstances do not create another offense or a special kind of illegal
possession or another form of illegal possession. When either of such circumstances is attendant
under the premises of a case, such circumstance only authorizes and justifies the imposition of a
higher penalty. It only has the effect of upgrading the penalty and not of supplying an additional,
separate element of a new or another offense. Thus, there is no such thing as a special complex
crime of illegal possession of unlicensed firearm used in homicide, 14 or murder for that matter.
Neither could we have conceived what we have been calling the aggravated form of illegal
possession 15 or qualified illegal possession, 16 to be a separate, distinct and independent offense
from illegal possession without any qualifying circumstance. Even Justice Regalado concedes in his
Separate Opinion in People v. Barros 17 that "the nomenclature of aggravated illegal possession is
used just for expediency, in the same manner as that of ‘qualified rape’ under Article 335 when the
sexual assault is attended by the circumstances therein which result in increased penalties."cralaw
virtua1aw library
In People v. Barros, 18 we were mainly concerned with the issue as to whether or not, whenever a
killing is effected with the use of an unlicensed firearm, the malefactor should be punished
separately for both offenses, with the unlawful taking of life to be proceeded against under the
corresponding provision of the Revised Penal Code and the illegal possession of the firearm under
P.D. No. 1866. There, we decided that said malefactor ought only to be punished for qualified illegal
possession of firearm essentially because the two crimes are not altogether separate or
disconnected from each other both in law and in fact and could thus be viewed as a situation
bordering close to or approximating the concept of complex crime proper and/or as a situation
where the graver offense (of qualified illegal possession) can be said to have absorbed the lesser
offense (of homicide or murder) which constitutes the essential element siring the so-called "capital
offense of the aggravated form of illegal possession" .
There is no time more appropriate to reexamine the Barros ruling than now, for to persist in it
would result in an absurd situation that cannot be justified even under the hallowed principle of
stare decisis.
Merely that two crimes are not altogether separate or disconnected from each other both in law and
in fact, is of no moment. In the first place, should they in law and in fact be altogether separate or
disconnected from each other to foreclose their absorption into or complexing with, each other? In
the second place, that very statement provides a basic presumption and reality that must be fully
understood insofar as its implications and consequences are concerned. They are precisely two
crimes, and these two crimes are punished under two separate, distinct and independent laws.
Punishment is a corollary of lawbreaking by a member of society whose law is broken. 19 In this
case, there are two separate laws involved, two separate crimes punished by two laws, and two
counts of breaking the law constituting two crimes for which two separate penalties are provided.
Concededly, Accused-appellant performed only one action which was made basis for two
Informations each charging a distinct offense. But it is also a well-established rule in this jurisdiction
that:jgc:chanrobles.com.ph
"a single act may offend 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 different laws (or articles of the same code) define two
crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both
offenses arise from the same facts, if each crime involves some important act which is not an
essential element of the other." 20
Where there are, as in this case, two crimes punished by two distinct laws enacted for absolutely
different purposes, and both laws are clear and unambiguous, and no absurdity or
unreasonableness is evident from the application of both, it is not the proper function of the court to
charge or alter in any way the state of things thereunder. That it is desirable, equitable, wise,
humane or charitable to find a way to decrease the penalty or avoid imposition of the penalties
under the two laws, is not denied, but at most we can only "legislate interstitially . . . confined from
molar to molecular motions" 21 and clear up ambiguities or fill in the gaps. Gaps in our conscience
and our personal convictions must be found and provided some other legitimate channel for
expression and realization.
The law on complex crime proper is not applicable here. One of the reasons often cited in
proscribing complexing a crime under the Revised Penal Code and an offense under a special law is
that the latter is not punishable by a penalty divisible into periods. Now following our ruling in
People v. Simon, 22 the suppletory effect of the Revised Penal Code upon P.D. No. 1866 is now
strikingly broadened because though it is a special penal law, the penalties provided therein are
actually taken from the Revised Penal Code in their technical nomenclature, duration, correlation
and legal effects, such that the same treatment as that respecting Revised Penal Code penalties may
now be given to penalties under certain special laws.
However, notwithstanding the import of our ruling in the said case of People v. Simon, it still cannot
be said that there is no longer any obstacle in complexing murder with qualified illegal possession
because the very essence and nature of each of these crimes remains unchanged and unaffected.
Murder, or for that matter, homicide, remains distinct from the crime of Illegal Possession of
Unlicensed Firearm where the firearm is used in perpetrating the killing. The defendant in such
cases committed two different acts with two separate criminal intents, to wit, the desire to take
unlawfully the life of a person and the sheer violation of the law which prohibits the possession of a
firearm without the required permit. 23 In other words, there is in this instant case a case of
plurality of crimes where accused-appellant performed one act which resulted in two different
crimes penalized under two separate laws which have distinct purposes and are independent from
each other.
Neither does the doctrine of absorption obtain in this case. For absorption to take place under the
circumstances thereof, there must be two materially distinct and separate offenses involved —
murder and what has been referred to as the capital offense of the aggravated form of illegal
possession of unlicensed firearm. As has been explained hereinabove, however, the offense defined
in Section 1 of P.D. No. 1866 is plainly, simply illegal possession of unlicensed firearm. The
circumstance of homicide or murder only operates to upgrade the penalty for the offense of illegal
possession of unlicensed firearm and does not as it has not been intended to, sire and penalize a
second offense or the so-called capital offense of the aggravated form of illegal possession of
unlicensed firearm. The offense of illegal possession, as such, in turn, cannot validly absorb murder
or homicide because the latter is not an element of the former. Nothing more indubitably evidences
the intent of the legislature to maintain the integrity and effectivity of the penal provision for
murder and homicide, on the one hand, and of Section 1 of P.D. No. 1866, on the other, than the very
pertinent provision of said decree which neither created any special complex crime nor amended
nor repealed the provisions on murder or homicide nor defined a separate offense of an aggravated
form of illegal possession.
attend such crimes, they face the possibility of being sentenced to death, an eventuality that could
never be under P.D. No. 1866.
Certainly, we cannot close our eyes to this absurd situation, and it will be irresponsible of us to
allow the absurdity to persist. We should not stubbornly cling to the illusion that murder and illegal
possession of unlicensed firearm used in murder may be complexed with each other or absorbed
into each other. Anyway, they are not so disconnected from each other that doing so would translate
into a lower penalty. For us to cling to such an illusion would be tantamount a complete disregard of
legal concepts and principles in the realm of crime and punishment that has remain good, sound,
valid law.
WHEREFORE:, the conviction of the accused by the court a quo of the two (2) crimes aforesaid, that
is, for Murder and Illegal Possession of Unlicensed Firearm, should be, as it is, affirmed.

We are not unaware of the fundamental legal principle that every doubt in the construction of a
criminal statute should be resolved in favor of any person accused of a crime. To mete out a lesser
penalty is certainly favorable to an accused; such, however, presupposes the existence of some
doubt in the application of the law pertinent to his circumstances. In the instant case, there is no
ambiguity, ambivalence, confusion, doubt or question respecting the applicable laws. The penalties
provided for by the Revised Penal Code for the crime of Murder and by P.D. No. 1866 for the offense
of Illegal Possession of Unlicensed Firearm are not under attack. And it could not also be said that
the application of said laws and the imposition of said penalties bring about an undeniable situation
characterized by such absurdity, unreasonableness, and socially, morally or philosophically virulent
consequences as to justify the utter disregard of said laws and their substantive provisions
regarding penalties. Certainly, there must be a limit to what the court may do to remedy what it
perceives as a difficult but avoidable situation. The consequences of the application of our valid,
subsisting laws, after all, do not always have to satisfy our own standards of what is just and fair.

Finally, with the enactment of Republic Act (RA.) No. 7659 24 reimposing the death penalty for
certain heinous crimes, an anomalous situation may emerge in our midst if we apply Barros. Said
Act enumerated particular crimes under the Revised Penal Code and specific offenses under special
laws that shall henceforth contain provisions imposing the death penalty under certain
circumstances. One of the crimes enumerated thereunder is Murder, which may now be punished by
death. 25 The death penalty may now also be meted out in, among others, the case of drug-related
crimes as provided for in the Dangerous Drugs Act of 1972 26 and the crimes provided for in the
Anti-Carnapping Act of 1972. 27

Of utmost significance is the fact that not included in the enumeration of special offenses where the
death penalty has been revived, is P.D. No. 1866. RA. 7659 being a penal statute which must, as a
rule, be strictly construed against the State, the inescapable and inevitable conclusion is that
Congress, in enacting R.A. No. 7659, did not intend to revive the death penalty provision found in
the second and third paragraphs of Section 1 of P.D. No. 1866.

The foregoing makes for a tremendous import. On the one hand, were we to insist that murder may
be complexed with or absorbed by illegal possession of unlicensed firearm where said firearm is
used in the commission of murder or homicide, a person convicted for said offense may only be
punished with a penalty no higher than reclusion perpetua, since RA. No. 7659 did not revive the
death penalty provision in Section 1 of P.D. No. 1866. On the other hand, a person who has used a
licensed firearm in committing murder may be punished with death if there were sufficient
aggravating circumstances attendant in the killing, since R.A. No. 7659 restored the death penalty
for the crime of murder. No much deeper analysis is needed to realize that an anomalous, absurd
situation confronts us where the use of an unlicensed firearm in killing is rewarded by a lesser
penalty. Herein lies real injustice. And we cannot scale down this resounding message which
indifference on our part would impart: if "would be" criminals were to kill, they ought to kill with
unlicensed firearms so that they will fall within the purview of P.D. No. 1866 with respect to which
the death penalty has not been restored and not within the provisions of the Revised Penal Code for
murder, for then depending upon the nature and number of the aggravating circumstances that may