Notes on illegal possession of firearms (2/2)
Below are important notes regarding the rules on illegal possession of firearms.
Under PD 1866, as amended RA 8294, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance. <<<CLICK HERE FOR 1/2>>>
If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (G.R. No. 117033; February 15, 2001)
If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup detat. (G.R. No. 117033; February 15, 2001)
It is clear from the foregoing that where murder or homicide results from the use of an unlicensed firearm, the crime is no longer qualified illegal possession, but murder or homicide, as the case may be. In such a case, the use of the unlicensed firearm is not considered as a separate crime but shall be appreciated as a mere aggravating circumstance. In view of the amendments introduced by Republic Act No. 8294 to Presidential Decree No. 1866, separate prosecutions for homicide and illegal possession are no longer in order. Instead, illegal possession of firearms is merely to be taken as an aggravating circumstance in the homicide case. (G.R. No. 117033; February 15, 2001)
Thus, in People v. Nepomuceno, Jr., we stated:
But, pursuant to the amendment, the use of an unlicensed firearm in the commission of murder or homicide is treated as an aggravating circumstance. There, the illegal possession or use of the unlicensed firearm is no longer separately punished. This Court emphatically said so in People v. Bergante (286 SCRA 629 [1998]), thus:
The violation of P.D. No. 1866 should have been punished separately conformably with our ruling in People v. Quijada. Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was recently amended by Republic Act. No. 8294, otherwise known as An Act Amending the Provisions of Presidential Decree No. 1866, as Amended. The third paragraph of Section 1 of said Act provides that if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In short, only one offense should be punished, viz., either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance. Being favorable to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the Revised Penal Code, he not being a habitual criminal. (G.R. No. 117033; February 15, 2001)
The crime of illegal possession of firearm, in its simple form, is committed only where the unlicensed firearm is not used to commit any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup detat. Otherwise, the use of unlicensed firearm would be treated either: (1) as an essential ingredient in the crimes of rebellion, insurrection, sedition or attempted coup detat; or (2) as an aggravating circumstance in murder or homicide. (G.R. No. 117033; February 15, 2001)With respect to the conviction of accused-appellant for illegal possession of firearms under P. D. No. 1866, it was held in the case of People vs. Molina (292 SCRA 742) and reiterated in the recent case of People vs. Ronaldo Valdez (G.R. No. 127663, March 11, 1999, 304 SCRA 611), that in cases where murder or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no other crime is committed (Section 1 of R.A. No. 8294). In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance (People v. Molina, supra, at p. 782). (G.R. No. 117033; February 15, 2001)
It bears stressing, however, that the dismissal of the present case for illegal possession of firearm should not be misinterpreted to mean that there can no longer be any prosecution for the offense of illegal possession of firearms. In general, all pending cases involving illegal possession of firearms should continue to be prosecuted and tried if no other crimes expressly provided in R. A. No. 8294 are involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition or attempted coup d etat, under Section 3) (People v. Valdez, supra). (G.R. No. 117033; February 15, 2001)
Inasmuch as the amendatory law is favorable to accused-appellant in this case, the same may be retroactively applied. This new law applies even to violations that occurred prior to its effectivity as it may be given retroactive effect under Article 22 of the Revised Penal Code. (G.R. No. 117033; February 15, 2001)
R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on May 5, 1991. As a general rule, penal laws will generally have prospective application except where the new law will be advantageous to the accused. In this case R.A. 8294 will spare accused-appellant from a separate conviction for the crime of illegal possession of firearm. Accordingly, said law should be given retroactive application. (G.R. No. 117033; February 15, 2001)
Neither can accused-appellant be charged with simple illegal possession. As stated above, the same may only done where no other crime is committed. (G.R. No. 117033; February 15, 2001)
With more reason, accused-appellant cannot be convicted of homicide or murder with the use of the unlicensed firearm as aggravating, inasmuch as said felonies are not charged in the information but merely mentioned as the result of the use of the unlicensed firearm. Accused-appellant was not arraigned for homicide or murder. Hence, he cannot be convicted of any of these crimes without violating his right to be informed of the nature and cause of the accusation against him, not to mention his right to due process. (G.R. No. 117033; February 15, 2001)
READ: People v. Avecilla; G.R. No. 117033 February 15, 2001
If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup detat. (G.R. No. 117033; February 15, 2001)
It is clear from the foregoing that where murder or homicide results from the use of an unlicensed firearm, the crime is no longer qualified illegal possession, but murder or homicide, as the case may be. In such a case, the use of the unlicensed firearm is not considered as a separate crime but shall be appreciated as a mere aggravating circumstance. In view of the amendments introduced by Republic Act No. 8294 to Presidential Decree No. 1866, separate prosecutions for homicide and illegal possession are no longer in order. Instead, illegal possession of firearms is merely to be taken as an aggravating circumstance in the homicide case. (G.R. No. 117033; February 15, 2001)
Thus, in People v. Nepomuceno, Jr., we stated:
But, pursuant to the amendment, the use of an unlicensed firearm in the commission of murder or homicide is treated as an aggravating circumstance. There, the illegal possession or use of the unlicensed firearm is no longer separately punished. This Court emphatically said so in People v. Bergante (286 SCRA 629 [1998]), thus:
The violation of P.D. No. 1866 should have been punished separately conformably with our ruling in People v. Quijada. Nevertheless, fortunately for appellant Rex Bergante, P.D. No. 1866 was recently amended by Republic Act. No. 8294, otherwise known as An Act Amending the Provisions of Presidential Decree No. 1866, as Amended. The third paragraph of Section 1 of said Act provides that if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In short, only one offense should be punished, viz., either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance. Being favorable to Rex Bergante, this provision may be given retroactive effect pursuant to Article 22 of the Revised Penal Code, he not being a habitual criminal. (G.R. No. 117033; February 15, 2001)
The crime of illegal possession of firearm, in its simple form, is committed only where the unlicensed firearm is not used to commit any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup detat. Otherwise, the use of unlicensed firearm would be treated either: (1) as an essential ingredient in the crimes of rebellion, insurrection, sedition or attempted coup detat; or (2) as an aggravating circumstance in murder or homicide. (G.R. No. 117033; February 15, 2001)With respect to the conviction of accused-appellant for illegal possession of firearms under P. D. No. 1866, it was held in the case of People vs. Molina (292 SCRA 742) and reiterated in the recent case of People vs. Ronaldo Valdez (G.R. No. 127663, March 11, 1999, 304 SCRA 611), that in cases where murder or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no other crime is committed (Section 1 of R.A. No. 8294). In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance (People v. Molina, supra, at p. 782). (G.R. No. 117033; February 15, 2001)
It bears stressing, however, that the dismissal of the present case for illegal possession of firearm should not be misinterpreted to mean that there can no longer be any prosecution for the offense of illegal possession of firearms. In general, all pending cases involving illegal possession of firearms should continue to be prosecuted and tried if no other crimes expressly provided in R. A. No. 8294 are involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition or attempted coup d etat, under Section 3) (People v. Valdez, supra). (G.R. No. 117033; February 15, 2001)
Inasmuch as the amendatory law is favorable to accused-appellant in this case, the same may be retroactively applied. This new law applies even to violations that occurred prior to its effectivity as it may be given retroactive effect under Article 22 of the Revised Penal Code. (G.R. No. 117033; February 15, 2001)
R.A. 8294 took effect on July 6, 1997. The crime involved in the case at bench was committed on May 5, 1991. As a general rule, penal laws will generally have prospective application except where the new law will be advantageous to the accused. In this case R.A. 8294 will spare accused-appellant from a separate conviction for the crime of illegal possession of firearm. Accordingly, said law should be given retroactive application. (G.R. No. 117033; February 15, 2001)
Neither can accused-appellant be charged with simple illegal possession. As stated above, the same may only done where no other crime is committed. (G.R. No. 117033; February 15, 2001)
With more reason, accused-appellant cannot be convicted of homicide or murder with the use of the unlicensed firearm as aggravating, inasmuch as said felonies are not charged in the information but merely mentioned as the result of the use of the unlicensed firearm. Accused-appellant was not arraigned for homicide or murder. Hence, he cannot be convicted of any of these crimes without violating his right to be informed of the nature and cause of the accusation against him, not to mention his right to due process. (G.R. No. 117033; February 15, 2001)
READ: People v. Avecilla; G.R. No. 117033 February 15, 2001
