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People v. Comadre : 153559 : June 8, 2004 : J. Callejo Sr : En Banc : Concurring and Dissenting Opinion

People v. Comadre : 153559 : June 8, 2004 : J. Callejo Sr : En Banc : Concurring and Dissenting Opinion

PHILIPPINE SUPREME COURT DECISIONS


CONCURRING AND DISSENTING OPINION

CALLEJO, SR., J.:

I concur with the majority that the appellant Antonio Comadre is guilty of murder for the death of Robert Agbanlog, and multiple attempted murder for the injuries sustained by the other victims. I dissent, however, from the ruling of the majority that the killing of Agbanlog is qualified by the use of explosives and not by treachery.

Under Section 3 of P.D. No. 1866 which took effect on June 29, 1983, any person who commits any of the crimes defined in the Revised Penal Code with the use of explosives, detonation agents or incendiary devices which results in the death of a person shall be sentenced to suffer the death penalty.1 However, with the onset of the 1987 Constitution, the imposition of the death penalty was suspended.

Under paragraph 3, Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the use of explosives in killing a person is a circumstance which qualifies the killing to murder, the imposable penalty for which is reclusion perpetua to death. When the crimes were committed by the appellants on August 6, 1995, Rep. Act No. 7659 was already in effect. But while the case was pending, Rep. act No. 8294 was approved on June 6, 1997.Section 2 of the latter law provides that when a person commits any of the crimes defined in the Revised Penal Code with the use of explosives, detonation agents or incendiary devices which results in the death of any person or persons, the use of such explosives, etc. shall be considered as an aggravating circumstance:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance.

Paragraph 3 of Article 248 of the Revised Penal Code, as amended by Rep Act No. 7659, was, thus, amended by Section 2 of Rep. Act No. 8294. Under the latter law, the use of a hand grenade in killing the victim was downgraded from being a qualifying circumstance to a mere generic aggravating circumstance. Considering that Section 2 of Rep. Act No. 8294 is favorable to the appellant, the same should be applied retroactively.2 Considering the factual milieu in this case, the generic aggravating circumstance of the use of explosives is absorbed by the qualifying circumstance of treachery.

Endnotes:


1 Any person who commits any of the crime defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons shall be punished with the penalty of death.

2 ART. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

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