That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, without authority of law, permit or license, did then and there, knowingly, willfully, unlawfully and feloniously have in their possession, custody and control two (2) receivers of caliber .45 pistol, [M]odel [No.] M1911A1 US with SN 763025 and Model [No.] M1911A1 US with defaced serial number, two (2) pieces short magazine of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition, which items were confiscated and recovered from their possession during a search conducted by members of the Provincial Intelligence Special Operation Group, Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03 issued by OIC Executive Judge Dean Telan of the Regional Trial Court of Aklan.3
- The search warrant subject of this case exists;
- Accused Elenita Fajardo is the same person subject of the search warrant in this case who is a resident of Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan;
- Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August 27, 2002 but does not live therein;
- Both accused were not duly licensed firearm holders;
- The search warrant was served in the house of accused Elenita Fajardo in the morning of August 28, 2002; and
- The accused Elenita Fajardo and Valerio were not arrested immediately upon the arrival of the military personnel despite the fact that the latter allegedly saw them in possession of a firearm in the evening of August 27, 2002.5
- Two (2) pieces of Short Magazine of M16 Armalite Rifle;
- Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and
- Fourteen (14) pieces of live ammos of Caliber 45 pistol.
That this application was founded on confidential information received by the Provincial Director, Police Supt. Edgardo Mendoza.7
Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the Philippine Army prior to his separation from his service for going on absence without leave (AWOL). With his military background, it is safe to conclude that Zaldy Valerio is familiar with and knowledgeable about different types of firearms and ammunitions. As a former soldier, undoubtedly, he can assemble and disassemble firearms.
It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory or arsenal which are the usual depositories for firearms, explosives and ammunition. Granting arguendo that those firearms and ammunition were left behind by Benito Fajardo, a member of the Philippine army, the fact remains that it is a government property. If it is so, the residence of Elenita Fajardo is not the proper place to store those items. The logical explanation is that those items are stolen property.
x x x x
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law[,] the proprietary concept of the possession can have no bearing whatsoever.
x x x x
x x x. [I]n order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.
x x x x
To convict an accused for illegal possession of firearms and explosive under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm ammunition or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused has no license or permit to own or possess the firearm, ammunition or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive (Exhibit G).
The judicial admission of the accused that they do not have permit or license on the two (2) receivers of caliber .45 pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition confiscated and recovered from their possession during the search conducted by members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court.9
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.
[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal knowledge of the fact that appellants had no license to possess firearms as required by law. For one, he failed to make a categorical statement on that point during the application. Also, he failed to attach to the application a certification to that effect from the Firearms and Explosives Office of the Philippine National Police. x x x, this certification is the best evidence obtainable to prove that appellant indeed has no license or permit to possess a firearm. There was also no explanation given why said certification was not presented, or even deemed no longer necessary, during the application for the warrant. Such vital evidence was simply ignored.10
Sec. 13. Duplicity of offense. - A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, 41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.14
Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition. - The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.15
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 of 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. (Emphasis ours.)
First, we rule on the admissibility of the receivers. We hold that the receivers were seized in plain view, hence, admissible.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
Q When you arrived in that place, you saw policemen?
A Yes, sir.
Q What were they doing?
A They were cordoning the house.
Q You said that you asked your assistant team leader Deluso about that incident. What did he tell you?
A Deluso told me that a person ran inside the house carrying with him a gun.
Q And this house you are referring to is the house which you mentioned is the police officers were surrounding?
A Yes, sir.
Q Now, how long did you stay in that place, Mr. Witness?
A I stayed there when I arrived at past 10:00 o'clock up to 12:00 o'clock the following day.
Q At about 2:00 o'clock in the early morning of August 28, 2002, can you recall where were you?
A Yes, sir.
Q Where were you?
A I was at the back of the house that is being cordoned by the police.
Q While you were at the back of this house, do you recall any unusual incident?
A Yes, sir.
Q Can you tell the Honorable Court what was that incident?
A Yes, sir. A person went out at the top of the house and threw something.
Q And did you see the person who threw something out of this house?
A Yes, sir.
x x x x
Q Can you tell the Honorable Court who was that person who threw that something outside the house?
A It was Zaldy Valerio.
COURT: (to witness)
Q Before the incident, you know this person Zaldy Valerio?
A Yes, sir.
Q Why do you know him?
A Because we were formerly members of the Armed Forces of the Philippines.
x x x x
PROS. PERALTA:
Q When you saw something thrown out at the top of the house, did you do something if any?
A I shouted to seek cover.
x x x x
Q So, what else did you do if any after you shouted, "take cover?"
A I took hold of a flashlight after five minutes and focused the beam of the flashlight on the place where something was thrown.
Q What did you see if any?
A I saw there the lower [part] of the receiver of cal. 45.
x x x x
Q Mr. Witness, at around 4:00 o'clock that early morning of August 28, 2002, do you recall another unusual incident?
A Yes, sir.
Q And can you tell us what was that incident?
A I saw a person throwing something there and the one that was thrown fell on top of the roof of another house.
Q And you saw that person who again threw something from the rooftop of the house?
A Yes, sir.
Q Did you recognize him?
A Yes, sir.
Q Who was that person?
A Zaldy Valerio again.
x x x x
Q Where were you when you saw this Zaldy Valerio thr[o]w something out of the house?
A I was on the road in front of the house.
Q Where was Zaldy Valerio when you saw him thr[o]w something out of the house?
A He was on top of the house.
x x x x
Q Later on, were you able to know what was that something thrown out?
A Yes, sir.
Q What was that?
A Another lower receiver of a cal. 45.
x x x x
Q And what did he tell you?
A It [was] on the wall of another house and it [could] be seen right away.
x x x x
Q What did you do if any?
A We waited for the owner of the house to wake up.
x x x x
Q Who opened the fence for you?
A It was a lady who is the owner of the house.
Q When you entered the premises of the house of the lady, what did you find?
A We saw the lower receiver of this .45 cal. (sic)21
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever.
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.
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. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.23
(1) possesses a firearm or a part thereof
(2) lacks the authority or license to possess the firearm.24
The CA correctly convicted Valerio with illegal possession of part of a firearm.
Endnotes:
1 Penned by Executive Justice Antonio L. Villamor, with Associate Justices Stephen C. Cruz and Florito S. Macalino, concurring; rollo, pp. 71-84.
2 Id. at 32-69.
3 Information; CA rollo, pp. 6-7. (Emphasis supplied.)
4 Supra note 2, at 33.
5 Id.
6 Supra notes 1 and 2.
7 CA rollo, pp. 60-90; see also Exhibits 2 & 2a, records, Vol. I, p. 37.
8 Supra note 2, at 49-63.
9 Id. at 64-68.
10 Supra note 1, at 78-79.
11 Rollo, pp. 85-90.
12 Id. at 92-93.
13 Approved on June 6, 1997.
14 Emphasis supplied.
15 Emphasis supplied.
16 In fact, the signing prosecutor did not even cite Section 1; see Information, supra note 3.
17 The purpose of the rule against duplicity of offense, embodied in Sec. 13, Rule 110 of the Rules of Court, is to give the defendant the necessary knowledge of the charge so that he may not be confused in his defense. (F. Regalado, Remedial Law Compendium, Volume II [8th ed., 2000], citing People v. Ferrer, 101 Phil. 234, 270 1957).
18 People v. Go, 457 Phil. 885, 926 (2003), citing People v. Doria, G.R. No. 125299, January 22, 1999, 301 SCRA 668, 704-705.
19 People v. Go, supra, at 928, citing People v. Musa, 217 SCRA 597, 610 (1993) and Harris v. United States, 390 U.S. 192, 72 L. ed. 231 (1927).
20 People v. Doria, supra note 18, at 711.
21 TSN, August 25, 2004, pp. 5-14.
22 G.R. Nos. 102009-10, July 6, 1994, 233 SCRA 716.
23 Id. at 725-727. (Citations omitted.)
24 See People v. Dela Rosa, G.R. No. 84857, January 16, 1998, 284 SCRA 158, 167, citing People v. Caling, G.R. No. 94784, May 8, 1992, 208 SCRA 827.
25 People v. Dela Rosa, id. at 172.
26 See Teofilo Evangelista v. The People of the Philippines, G.R. No. 163267, May 5, 2010; People v. Eling, G.R. No. 178546, April 30, 2008, 553 SCRA 724, 738; Advincula v. Court of Appeals, 397 Phil. 641, 649 (2000).
27 Q Now, when you saw this lower receiver of the cal. 45, what did you do if any?
A I called some uniformed men and asked them to guard the place.
Q You did not right away pick it up?
A No, sir, because we waited for some media persons for them to see what was thrown.
Q Were (sic) the media people eventually arrived?
A Yes, sir.
Q Were they able to see this lower receiver of cal. 45?
A Yes, sir.
x x x x
Q Were you the one who actually picked up this lower receiver of the cal. 45?
A Yes, sir, I picked it with the help of a wire.
Q If that lower receiver of cal. 45 including the wire in picking it up is shown to you, will you be able to identify them?
A Yes, sir.
Q I am showing to you a receiver of the cal. 45 already marked as Exhibit E, please go over the same and tell if this is the same lower receiver of cal. 45 including the wire?
A Yes, sir.
x x x x
Q You said that Zaldy Valerio threw something out of the house towards the direction of another house. Can you remember having said so?
A Yes, sir.
x x x x
Q And you cannot enter this if the owner of the house will not open the gate for you?
A Yes, sir.
Q And so, were you able to enter this house?
A They let us in because they opened the fence.
x x x x
Q When you entered the premises of the house of the lady, what did you find?
A We saw the lower receiver of this .45 cal.
Q If that lower receiver of cal. 45 will be shown to you, will you be able to identify the same?
A Yes, sir.
Q I am showing to you this lower receiver of the cal. 45 already marked as Exhibit E-1, is that the same lower receiver of cal. 45 which you saw in the early morning of August 28, 2002?
A Yes, sir.
Q What did you do with that lower receiver?
A I picked it up and when I have picked it up, turned it over to our investigator.
Q Can you tell us how did you pick up that lower receiver?
A Through the use of a wire.
Q Was there any media people present when you picked up this lower receiver of the cal. 45?
A Many. (TSN, August 25, 2004, pp. 8-14)
28 TSN, August 18, 2004, pp. 21-30.
29 TSN, August 4, 2004, pp. 16-17.
30 Exhibit G; records, Volume I, p. 8.
31 TSN, August 4, 2004, p. 16.
32 Valeroso v. People, G.R. No. 164815, February 22, 2008, 546 SCRA 450, 468-469.