G.R. No.

89823             June 19, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EUTROPIO TIOZON y ACID, accused-appellant.

The Solicitor General for plaintiff-appellee.

Lorenzo G. Parungao for accused-appellant.

DAVIDE, JR., J.:

In an information filed by the Asst. City Prosecutor of Caloocan City on 27

February 1989 with Branch 131 of the Regional Trial Court (Caloocan City)
of the National Capital Judicial Region, accused-appellant was charged for
violation of Presidential Decree 1866, as amended, committed as follows:

That on or about the 24th day of February 1989 in Kalookan City, Metro
Manila and within the jurisdiction of this Honorable Court, the above-named
accused, without any lawful motive or purpose, did then and there wilfully,
unlawfully and feloniously have in his possession, custody and control one .
38 cal. revolver, marked Squires Bingham with SN 180169 with three live
ammunitions without authority of law, which firearm was used with
treachery and evident premeditation in shooting one Leonardo Bolima y
Mesia, which caused death.1

Accused-appellant pleaded not guilty when arraigned on 15 March

1989.2 Pre-trial was conducted and thereafter the trial court received the
evidence for the parties.

In a decision promulgated on 30 June 1989,3 the court a quo found

accused-appellant guilty and sentenced him as follows:

WHEREFORE, in view of all the foregoing, the court finds the accused
EUTROPIO TIOZON y ACID guilty beyond reasonable doubt of the crime
of P.D. 1866 and Murder qualified by treachery and hereby sentences him
to suffer life imprisonment; to indemnify the heirs of the deceased Leonardo
Bolima the sum of P30,000.00; to reimburse the heirs of the victim the sum
of P50,000.00 as reasonable expenses for the wake and burial expenses
and to pay the costs.

According to the trial court, were it not for its abolition, "the death penalty,
the sentence imposable under 2nd pa., Section 1 of P.D. 1866, as
amended", should have been imposed.

On 5 July 1989 Accused-appellant filed a motion to reconsider the

decision4 which, however, was denied by the court in its order of 16 August
1989.5 On 17 August accused-appellant filed a Notice of Appeal.6 Hence,
the case is now before Us.

The facts as found by the court a quo are as follows:

That at around 11:00 o'clock in the evening of February 24, 1989, while she
and her husband were sleeping inside their house, they were awakened by
the loud knocks on their door; Her husband opened the door and they saw
that the person who was knocking was their "Pareng Troping", accused
herein; her husband invited the accused, who appeared to be very drunk,
to come inside their house; once inside their house, accused sat down and
the two (accused and victim) exchanged pleasantries; she even saw the
accused showing a gun to her husband and the latter even toyed with it;
she got irritated by her husband's playing with the gun, so she took a few
steps away from the two, however, when she looked back to the place
where her husband and the accused was, she found out that the two had
already left; five minutes later and/or after she had heard two successive
gunshots, she heard accused knocking at their door and at the same time
informing her that he accidentally shoot (sic) her husband, "Mare, mare,
nabaril ko si Pare, hindi ko sinasadya" she got scared by the appearance of
the accused who was full of bloodstains so she pushed him away from her;
she immediately went to her sister-in-law Marilyn Bolima and both of them
proceeded to the house of the accused; thereat, they saw the victim lying
with his face up; she took her husband's pulse and when she still felt some
warmth on his body, she sought help that her husband be brought to the
hospital; accused extended his help by helping them in carrying the victim
towards the main road, however, after a few steps, he changed his mind
and put down the victim; accused reasoned out that the victim was already
dead; she pushed the accused and even without the latter's help, they were
able to reach the main road; afterwhich, some of her neighbors arrived
bringing with them lights; thereafter, Kalookan policemen arrived and so
she caused the arrest of the accused; she spent about P100,000.00 in
connection with burial and wake of her husband.

Pat. Orlando Valencia of the Kalookan Police Force on the witness stand
testified that on February 24, 1989 in line with his duty as policemen, a
shooting incident was reported to him; he responded to the said report by
proceeding to the crime scene, thereat, he saw the lifeless body of the
victim as well as the accused whose clothing was full of bloodstains; the
cadaver of the victim was referred to the Philippine Constabulary Crime
Laboratory (PCCL) while the person of the accused was turned over to the
Homicide Section of the Kalookan City Police Station; the day after, at
around 10:00 o'clock in the evening and upon instruction of Pfc. Alilam he
together with some Kalookan policemen accompanied the accused in
retrieving the firearm (Exh. "F") whom the accused threw at the grassy area
particularly at the back of the latter's house; aside from the firearm they
also recovered two (2) spent bullets (Exh. G-6 and G-7) and three live
ammunitions (Exh. G-12, G-13 and G-14).
NBI Ballistician Ernie Magtibay testified that he has been a ballistician of
the NBI since 1984; that pertinent to this case, he happened to examine a
caliber .38 Squires Bingham with serial number 180169 (Exh. "F"); that as
per his findings the evidence shells (Exhs. G-6 and G-7) were fired from the
gun, subject matter of this case.

Forensic chemist from the NBI Edwin Purificando testified that the paraffin
test he conducted on the dorsal aspect of the left and light hands, that is,
from the wristbones to the fingertips, of the deceased, gave negative result
on the presence of nitrates (Exh. "I"). Likewise, the paraffin test he
conducted on the dorsal aspects of the left hand and right hand of the
accused yielded negative results on the presence of nitrates (Exh. "J").

On the other hand, the version of the defense as testified to by the accused
is as follows:

That at about 11:30 in the evening of February 24, 1989 accused on his
way home, after coming from his work, passed by the house of his Pareng
Nardo, the victim herein; while passing infront of the said house, his Pareng
Nardo called him up; when he was about to enter the door of the house of
the victim, the latter, from the back of the door, poked a gun at him; he
grabbed the gun from his Pareng Nardo and at that instance, Rosalina
Bolima emerging from her room, saw him holding the gun; he returned the
gun to his Pareng Nardo and the latter tucked it in his waistline; he was
served with a beer and after he and the victim consumed about two bottles
of beer, they went out to buy some more; after they were able to buy some
more bottles of beer, victim carried the same and left ahead of the accused;
accused was left behind to answer the call of nature; while in the act of
urinating, he heard two successive gunshots; he followed the victim and he
saw the latter already sprawled on the ground; he inquired from his Pareng
Nardo as to what had happened to him, "Pareng Nardo, ano ang nangyari
sa iyo? and the victim's replied (sic) was "Pare, binaril ako", he further
inquired as to who shot him but the victim who was gasping for breath
could no longer talk; thereafter, he saw a gun near the body of his Pareng
Nardo; moved by his desire to bring the said gun to the wife of the victim,
he picked the same, but after he got hold of the gun, he suddenly realized
that the policemen might see him holding it, so he threw the very same gun
to the grassy area; he then ran towards the house of the victim and he
informed the wife of the latter that his Pareng Nardo was shot to death; he
returned to the place where he left the body of the victim but the body of
the latter was no longer there; he later found out that townspeople carried
the body of the victim towards the main road; when the policemen arrived
he was ordered to go with them at the Kalookan Police Headquarters;
when he was asked by the policemen as to who shoot (sic) the victim, his
answer was, he did not see the actual shooting incident; never did he
declare nor utter before her Mareng Lina or before any police authorities
that he accidentally shoot (sic) the victim. However, he admitted that it was
him who accompanied the policemen in retrieving the fatal gun at the
grassy area at the back of his house.
In holding the accused-appellant guilty as above-stated, the court a
quo relied on circumstantial evidence because the prosecution failed to
present an eyewitness who could give an account as to the actual shooting
incident. It considered the following circumstances which it deemed
sufficient to convict the accused-appellant pursuant to Rule 133, Section 5,
of the Revised Rules of Court:

The following are among the circumstances which points to the culpability
of the accused.

1) That the widow of the victim saw the accused holding a gun immediately
before shooting incident happened;

2) That accused was the last person seen in the company of the victim
immediately before the latter was shot to death;

3) That it was the accused who purposely went to the house of the victim
on that fatal evening; The testimony of the accused that he was merely
passing in front of the house of the victim when the latter who was standing
at the window of his house called him up is less credible than the testimony
of the widow of the victim, that they were already aslept (sic) inside their
house when or the aforesaid time accused knocked at their door.

4) That it was the accused who guided the policemen as to the place where
the fatal gun was recovered. Here the Court believes that the gun was
purposely hid at the grassy area at the back portion of accused's house.
The story of the accused that he picked the gun for the purpose of bringing
it to the widow of the victim but for fear that the policemen might see him
holding the gun, he then decided to throw it to the place where it was
recovered, was too flimsy to merit belief. Firstly, what is his reason for
bringing it to the widow of the victim when he surely knew fully well that it
will be the policemen who will investigate the case. Secondly, he knew for a
fact, that the said gun could lead as to the identity of the assailant of the
victim, why then he threw it at the grassy area when he could easily leave
the same to the place where he picked it up.

5) The testimony of the wife that after hearing two successive gunshots,
accused went back to her house and informed there (sic) that he
accidentally shot her husband deserves merit, Besides, the Court sees no
reason for the wife to concoct such story that would point to the accused as
the culprit specially so that had not the accused became (sic) the prime
suspect in this case, he would be the best person to be used as a
prosecution witness, with more reason that from the evidence presented, it
appears that the widow of the victim harbours no ill-feeling towards the
accused otherwise, she would have prevented accused accused's entry in
her house on that fatal evening.

6) The testimony of the wife that accused, immediately after the shooting
incident took place admitted to her having accidentally shoot (sic) the victim
is admissible evidence against the accused declarant since this is covered
by the rule on res gestae or one of an exception to the hearsay rule.

Part of the res gestae — Statement made by a person while a startling

occurrence is taking place or immediately prior tor (sic) subsequent thereto
with respect to the circumstance thereof, may be given in evidence as a
part of res gestae . . . (Sec. 36, Rule 130, Revised Rules of Court, as
amended).

7) The testimony of the accused that he does not own the gun and that it is
but (sic) the accused (sic) who owns the same and in fact the latter even
tucked it in his waistline immediately before the shooting incident happened
is improbable, for, how come then that the assailant was able to drew (sic)
the gun from the waistline of the victim and fired (sic) the same towards the
back portion of the victim's body. Is it not that the natural reaction of a
person was to face the person who suddenly and without permission drew
something from one's waistline. (sic)

While there is no eyewitness who testified to having seen accused shoot

(sic) the victim, yet all the foregoing circumstances meet the criteria set by
Sec. 5, Rule 133 of the Revised Rules of Court, as amended, and therefore
points (sic) to the accused as the person who unlawfully owns the fatal gun
as well as the same person who shoot (sic) to death the victim.
"Circumstantial (sic) evidence is admissible in the absence of an
eyewitness to the commission of the crime" (People vs. Albofera, 152
SCRA 125 [1983]).

The Court does not give credence to the denial of the accused that he was
not the one who shoot (sic) the victim as he was some distance away from
the victim answering the call of nature when the victim was killed. Instead,
the Court gives credence to the testimony of the widow that it was the
accused whom he saw in possession of the gun, that it was the accused
who was the last person seen in the company of the victim shortly before
the latter died and it was the same accused who lead (sic) the policemen in
retrieving the fatal gun.

Admittedly, as per findings of the NBI Forensic Chemist, the accused's right
and left hand yielded negative result to the test of nitrates. However, the
same witness testified that even when a person fired gun, it does not
necessarily follows (sic) that his hand would be positive to the test of
nitrates, as there are still several factors which affects the presence or
absence of nitrates in the hands of a person.

x x x           x x x          x x x

Although the fact of death of the victim (Exh. "E") is undisputed, still the
presence of the qualifying circumstance of treachery and evident
premeditation being alleged in the Information, must be proven like the
crime itself.
To properly appreciate evident premeditation it is necessary to establish
with proof, as clear as the evidence of the crime itself (1) the time when the
offender determined to commit the crime; (2) an act manifestly indicating
that the culprit had clung to his determination; and (3) a sufficient lapse of
time to reflect upon the consequence of his act (People vs. Lorenzo, 132
SCRA 17 (1984); People vs. Obengue, 147 SCRA 1987). Although alleged
in the Information, the record of this case is bereft of any indication that
evident premeditation attended the killing of the victim.

However, the qualifying circumstance of treachery is appreciated in this

case since its presence could be established by the position/location of the
wound of the victim, that is at the back portion of his torso which
necessarily imply that he was treacherously shot by his assailant.7

Accused-appellant assigns only one error in this appeal:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE CRIME OF ILLEGAL POSSESSION WITH
MURDER AS DEFINED UNDER SECTION 1 OF P.D. 1866. THE
CIRCUMSTANTIAL EVIDENCES RELIED UPON BY THE TRIAL COURT
IN ITS JUDGMENT OF CONVICTION ARE INSUFFICIENT
TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF ACCUSED-
APPELLANT.8

and prays that the decision appealed from be reversed and another be
entered acquitting him.

In support of the assigned error accused-appellant submits that:

(a) Contrary to the conclusion of the trial court, he was not the one holding
the gun immediately before the shooting incident, for as admitted by the
victim's wife, her husband also "toyed or played with the gun;9

(b) The testimony of the victim's wife that he was the last person seen in
the company of the victim is unrealiable because she was left in the house
when the victim and accused-appellant went out to the store which is about
145 to 150 meters away;

(c) That the accused-appellant pointed the place where the gun allegedly
used in the killing was recovered, should not create the unfavorable
inference that he purposely hid the gun and should not be taken against
him, for knowing the reputation of police authorities, what he did was
dictated by the instinct of self-preservation rather than guilt;

(d) The testimony of the wife of the victim that after hearing two successive
gunshots accused-appellant went back to her house and informed her that
he accidentally shot her husband, should not have been considered by the
trial court as part of the res gestae; and
(e) The "raciocination" of the trial court regarding the improbability of the
testimony of accused-appellant that he does not own the gun but that it was
the deceased who owned it which the latter tucked in his waistline before
the shooting incident is baseless as the records show that the deceased
was walking ahead of the accused-appellant who was left behind to answer
a call of nature; therefore, it is not highly improbable that some other
person whom the deceased might have met in the street could have taken
the gun from the waistline and shot him with it. It would not also be highly
improbable that a person from whose waistline a gun was grabbed could
not face his assailant especially when he is carrying something with his
both hands, like the deceased who was carrying one case of Gold Eagle
beer when he was shot at. Moreover, accused-appellant was found
negative for nitrates when a paraffin test was conducted on him by a
forensic chemist of the NBI.10

The People, in its Brief filed by the Solicitor General on 18 April 1990,
disagrees with the accused-appellant, maintains that the prosecution was
able to establish his guilt beyond reasonable doubt, and prays that subject
decision be affirmed in toto. It stresses that accused-appellant himself
admitted and confirmed that he and the victim went out together to buy
some more bottles of beer; he was with the victim after they bought the
beer, and they separated only when he had the urge to urinate seconds
before the incident. The widow did not testify that she saw what happened
in the street; what she testified was that the accused and the victim went
out together and five minutes later she heard two shots. There was,
therefore, nothing improbable about her testimony.

Appellee likewise contends that the conclusion of the trial court on the
hiding of the gun was based on the evidence on record; the accused
himself testified that he threw the gun on a grassy area. It further argues
that the conclusion of the court on the improbability of appellant's testimony
concerning the ownership of the gun is not baseless; on the contrary, it is
the theory of the appellant that it is probable that another person may have
grabbed the gun from the victim that is highly improbable. Since appellant
was behind the victim he could have seen a third person grabbing the gun.
He did not testify that he saw one. The negative result of the paraffin test
cannot be singled out to absolve the accused-appellant from liability.11

No Reply-Brief was filed.

We are now called upon to determine whether, on the basis of the evidence
adduced, the judgment appealed from should be affirmed or the accused-
appellant be acquitted.

We shall first focus our attention on the law under which accused-appellant
is indicted.

Section 1 of P.D. No. 1866 imposes the penalty of reclusion temporal in its
maximum period to reclusion perpetua "upon any person who shall
unlawfully manufacture, deal in, acquire, dispose or possess any firearm,
part of firearm, ammunition or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition." It
goes further by providing that "if homicide or murder is committed with the
use of an unlicensed firearm, the penalty of death shall be imposed."

It may be loosely said that homicide or murder qualifies the offense

penalized in said Section 1 because it is a circumstance which increases
the penalty. It does not, however, follow that the homicide or murder is
absorbed in the offense; otherwise, an anomalous absurdity results
whereby a more serious crime defined and penalized in the Revised Penal
Code is absorbed by a statutory offense, which is just a malum prohibitum.
The rationale for the qualification, as implied from the exordium of the
decree, is to effectively deter violations of the laws on firearms and to stop
the "upsurge of crimes vitally affecting public order and safety due to the
proliferation of illegally possessed and manufactured firearms, . . . " In fine
then, the killing of a person with the use of an unlicensed firearm may give
rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866
and (b) violation of either Article 248 (Murder) or Article 249 (Homicide) of
the Revised Penal Code. The accused cannot plead one as a bar to the
other; or, stated otherwise, the rule against double jeopardy cannot be
invoked because the first is punished by a special law while the second,
homicide or murder, is punished by the Revised Penal Code.

In People vs. Domiguez,12 We held:

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 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.13

In People vs. Bacolod, supra., 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 for 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:

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 –– 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.

However, to justify the imposition of the increased penalty under Section 1

of P.D. No. 1866 because of the resulting crime of homicide or murder, the
prosecution must allege in the information and prove by the quantum of
evidence required for conviction violation of said section and, more
specifically, the use of an unlicensed firearm and the commission of
homicide or murder. In this regard, the information in this case is sufficient
in form and substance. It alleges illegal possession of a firearm and of
murder, The latter is covered by the clause "which firearm was used with
treachery and evident premeditation in shooting one Leonardo Bolima y
Mesia, which caused his death.

We agree with the findings and conclusion of the court a quo that more
than one circumstantial evidence were duly proved and that these
circumstances point, beyond reasonable doubt, to the accused-appellant
as the one who shot and killed the deceased Leonardo Bolima y Mesia. For
circumstantial evidence to be sufficient to convict an accused, it is
necessary that the following requisites must be satisfied: (a) there must be
more than one circumstance, (b) the facts from which the inferences are
derived are proven, and (c) the combination of all the circumstances is
such as to produce a conviction beyond a reasonable doubt.14 Or, as
jurisprudentially formulated, a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proven
constitute "an unbroken chain which leads to one fair and reasonable
conclusion which points to the defendant, to the exclusion of all others, as
the guilty person,15 i.e., the circumstances proved must be consistent with
each other, consistent with the hypothesis that the accused is guilty, and at
the same time inconsistent with any other hypothesis except that of guilty.16

The first to the sixth circumstances mentioned by the trial court were duly
established and constitute an unbroken chain which leads to one fair and
reasonable conclusion that the accused-appellant, and no other else, shot
and killed the victim. We do not, however, agree with the additional
observation of the trial court, in respect to the sixth circumstance, that the
statement made by the accused-appellant to the wife of the victim
immediately after the shooting incident that he accidentally shot the victim
is covered by the rule on res gestae. This is a misapplication of the rule in
the instant case. Statements as part of the res gestae are among the
exceptions to the hearsay rule. The rule is that a witness "can testify only to
those facts which he knows of or his own knowledge; that is, which are
derived from his own perceptions.17 Accordingly, a testimony of a witness
as to what he heard other persons say about the facts in dispute cannot be
admitted because it is hearsay evidence. There are, however, exceptions
to this rule. One of them is statements as part of the res gestae under
Section 36 of Rule 130 of the Revised Rules of Court. The exceptions
assume that the testimony offered is in fact hearsay; but it is to be admitted
in evidence. Under the aforesaid Section 36, statements may be deemed
as part of the res gestae if they are made by a person while a startling
occurrence is taking place or immediately prior or subsequent thereto with
respect to the circumstances thereof. Statements accompanying an
equivocal act material to the issue and giving it a legal significance may
also be received as part of the res gestae.

In the instant case, however, the questioned testimony of the wife of the
victim is not hearsay. She testified on what the accused-appellant told her,
not what any other party, who cannot be cross-examined, told her. The
accused-appellant's statement was an "oral confession", not a part of res
gestae, which he can easily deny if it were not true, which he did in this
case.

In People vs. Tulagan, 143 SCRA 107,116-117, We declared that a

statement allegedly made by one of the accused to Natalia Macaraeg that
"we killed him" (referring to himself and his co-accused) and which Natalia
repeated in her testimony in open court was merely an "oral confession"
and not part of the res gestae.

Moreover, even assuming that the testimony of the wife of the victim on the
alleged statement of the accused-appellant is hearsay, the latter is barred
from questioning its admission due to his failure to object thereto at the
time the testimony was given. The transcript of the stenographic notes of
the testimony of Rosalina Magat vda. de Bolima, wife of the victim, clearly
shows the absence of an objection, thus:

Atty. Villano:

You said when you turned your back after taking a few steps and when you
turned your back, they were no longer there, will you please tell what
happened after that?

A And that was when they left it was 11:30 and when he came back 11:35
he was already knocking (referring to the person of the accused) telling me
while he was knocking: "Mare, mare nabaril ko si pare, hindi ko sinasadya."

Q By the way Mrs. Witness, who is that "pare" you are telling us?

A Troping, sir (as the witness pointed to).

Q The same Troping here, is your "kumpare"?

A Yes, sir.

(TSN, April 18,1989, p. 13).

The seventh circumstance mentioned by the court below is haphazardly
formulated. Something is wrong with the opening clause reading:

The testimony of the accused that he does not own the gun and that it
is but the accused who owns the same and in fact the latter even tucked it.

The words but the accused should have been the deceased.

Two more basic issues are left for determination, to wit: whether the
prosecution has established beyond reasonable doubt that the accused is
liable for illegal possession of firearms and whether the killing was attended
by the qualifying circumstances of treachery and evident premeditation as
alleged in the information.

Our painstaking review of the records and the evidence fails to disclose
that the prosecution presented any evidence to prove that the accused-
appellant was not authorized to possess the firearm alleged in the
information. And, contrary to the finding of the trial court, there was no
sufficient evidence to prove the presence of treachery.

It must be stated, however, that had illegal possession of firearms been

duly proven as alleged, it would not have mattered whether the killing was
simple homicide or murder since Section 1 of P.D. No. 1866 expressly
provides that:

x x x           x x x          x x x

If homicide or murder is committed with the use of an unlicensed firearm,

the penalty of death shall be imposed.

which penalty, however, had been automatically reduced to reclusion

perpetua in view of the abolition of the death penalty.18

The issue concerning the failure of the prosecution to prove that he had no
authority to possess the firearm has not been raised in this appeal.
Interestingly, accused-appellant raised it in his motion to reconsider the
decision of the trial court.19 In its resolution denying the motion, the trial
court admitted, in effect, that the prosecution did not offer any evidence to
prove that the accused-appellant had no license to possess or carry the
firearm in question; it however, threw the burden on the accused-appellant
to prove that he has that authority. Thus, it ruled:

Where accused relies as a matter of defense on an exception in a statute

which is not in the enacting clause by which the offense is described and
forbidden, he has the burden of proving that he is within the exception.

Where the subject matter of a negative averment in the information, or a

fact relied upon by defendant as a justification or excuse, relates to him
personally or otherwise lie peculiarly within his knowledge, the general rule
is that the burden of proof of such averment or fact is on him (16 C.J. sec.
998, p. 530). An illustrative case of this rule may be found in prosecution for
exercising a trade or profession, or doing other acts, without a license. In
such cases, it would greatly inconvenience the prosecution to prove that
the defendant had no license, whereas the defendant could easily prove
that he did have one.

In cases of illegal possession of firearms, the burden of proof as to the

negative averments in the information to the effect that the accused
possesses the firearms without the corresponding license is on the
defense. It is the accused who is called upon to prove that he possesses
the license. In other words, the fact relied upon by the accused as a
justification or excuse being one that is related to him personally or
otherwise within his peculiar knowledge, "the general rule is that the burden
of proof as to such averment or fact is on the accused" (Francisco,
Handbook on Evidence, pp. 379-380, 1984 Ed., citing cases).20

Section 1 of P.D. No. 1866 reads:

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.

x x x           x x x          x x x

The penalty of prision mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority
therefor.

Undoubtedly, there is unlawful possession under the foregoing section if

one does not have the license to possess the firearm. Even if he has the
license, he cannot carry the firearm outside his residence without legal
authority therefor. It follows then that the lack or absence of a license is an
essential ingredient of the offense which the prosecution must allege and
prove. Every element of the crime must be alleged and proved.21

In People vs. Pajenado, L-27680-81, 27 February 1970,22 We said:

It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8
SCRA 758 could be invoked to support the view that it is incumbent upon a
person charged with illegal possession of a firearm to prove the issuance to
him of a license to possess the firearm, but we are of the considered
opinion that under the provisions of Section 2, Rule 131 of the Rules of
Court which provide that in criminal cases the burden of proof as to the
offense charged lies on the prosecution and that a negative fact alleged by
the prosecution must be proven if "it is an essential ingredient of the
offense charged", the burden of proof was with the prosecution in to case to
prove that the firearm used by appellant in committing the offense charged
was not properly licensed.

It cannot be denied that the lack or absence of a license is an essential

ingredient of the offense of illegal possession of a firearm. The information
filed against appellant in Criminal Case No. 3558 of the lower court (now
G.R. No. 27681) specifically alleged that he had no "license or permit to
possess" the .45 caliber pistol mentioned therein. Thus it seems clear that it
was the prosecution's duty not merely to allege that negative fact but to
prove it. This view is supported by similar adjudicated cases. In U.S. vs.
Tria, 17 Phil. 303, the accused was charged with "having criminally
inscribed himself as a voter knowing that he had none of the qualifications
required to be a voter. It was there held that the negative fact of lack of
qualification to be a voter was an essential element of the crime charged
and should be proved by the prosecution. In another case (People vs.
Quebral, 68 Phil. 564) where the accused was charged with illegal practice
of medicine because he had diagnosed, treated and prescribed for certain
diseases suffered by certain patients from whom he received monetary
compensation, without having previously obtained the proper certificate of
registration from the Board of Medical Examiners, as provided in Section
770 of the Administrative Code, this Court held that if the subject of the
negative averment like, for instance, the act of voting without the
qualifications provided by law is an essential ingredient of the offense
charged, the prosecution has the burden of proving the same, although in
view of the difficulty of proving a negative allegation, the prosecution, under
such circumstance, need only establish a prima facie case from the best
evidence obtainable. In the case before Us, both appellant and the Solicitor
General agree that there was not even a prima facie case upon which to
hold appellant guilty of the illegal possession of a firearm. Former Chief
Justice Moran upholds this view as follows:

The mere fact that the adverse party has the control of the better means of
proof of the fact alleged, should not relieve the party making the averment
of the burden of proving it. This is so, because a party who alleges a fact
must be assumed to have acquired some knowledge thereof, otherwise he
could not have alleged it. Familiar instance of this is the case of a person
prosecuted for doing an act or carrying on a business, such as, the sale of
liquor without a license. How could the prosecution aver the want of a
license if it had acquired no knowledge of that fact? Accordingly, although
proof of the existence or non-existence of such license can, with more
facility, be adduced by the defendant, it is nevertheless, incumbent upon
the party alleging the want of the license to prove the allegation. Naturally,
as the subject matter of the averment is one which lies peculiarly within the
control or knowledge of the accused prima facie evidence thereof on the
part of the prosecution shall suffice to cast the onus upon him. (6 Moran,
Comments on the Rules of Court, 1963 edition, p. 8).

There being no proof that accused-appellant had no license to possess the

firearm in question, he could not be convicted for illegal possession of a
firearm. The trial court then committed an error in holding the accused-
appellant guilty thereof. However, as above-stated, the accused-appellant
did not touch this issue in his Brief. Be that as it may, the rule is well-settled
that an appeal in a criminal case opens the whole case for review and this
includes the review of the penalty, indemnity and the damages involved.23

In People vs. Borbano, 76 Phil. 702, 708, We ruled:

. . . In a criminal case, an appeal to the Supreme Court throws the whole

case open for review, and it becomes the duty of the Court to correct such
errors as may be found in the judgment appealed from, whether they are
made the subjects of assignments of error or not. (People vs. Ofindo, 47
Phil. 1).

Accordingly, it is proper for this Court to consider in favor of the accused-

appellant the absence of proof of illegal possession of a firearm. But, may
accused-appellant be convicted for murder under the information for which
he was tried? The answer is in the affirmative since, as We stated earlier,
the information sufficiently alleges the commission of murder; hence, a
conviction for murder, if warranted by the facts, can be had under the
information.24 If murder is not proved by reason of the absence of any
qualifying circumstance, conviction for the lesser crime of homicide is also
proper.25

We are also unable to agree with the trial court that the qualifying
circumstance of treachery was duly established.

There is treachery when the offender commits any of the crimes against
persons employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might make,
which means that no opportunity was given to the latter to do so. 26 It cannot
be presumed; it must be proved by clear and convincing evidence or as
conclusively as the killing itself.27 For, as held in U.S. vs. Perdon28 where no
particulars are known as to the manner in which the aggression was made
or how the act which resulted in the death of the victim began and
developed, it can in no way be established from mere suppositions, drawn
from circumstances prior to the very moment of the aggression, that an
accused perpetrated the killing with treachery.29 Accordingly, treachery
cannot be considered where the lone witness did not see the
commencement of the assault.30

In People vs. Manalo, supra, We ruled:

The fact that the fatal wounds were found at the back of the deceased does
not, by itself, compel a finding of treachery. Such a finding must be based
on some positive proof and not merely an inference drawn more or less
logically from hypothetical facts. This Court has ruled that the suddenness
of an attack is not, of itself, enough to constitute treachery when the
method of the killing does not positively show that the assailant thereby
knowingly intended to ensure the accomplishment of his purpose without
risk to himself from any defense which the victim might put up. In other
words, to sustain a finding of treachery, the means, method or form of
attack must be shown to have been deliberately adopted by the appellant.
(citing People vs. Carsano, 95 SCRA 146; People vs. Cabiling, 74 SCRA
185; People vs. Satone, 74 SCRA 106; People vs. Bongo, 55 SCRA 547).

In People vs. Ablao, 183 SCRA 65, 669, We said:

There being no direct evidence on how the shooting was committed,

treachery cannot be appreciated.

In the instant case, no witness who could have seen how the deceased
was shot was presented.1âwphi1 Absent the quantum of evidence required to
prove it, treachery cannot be considered against the accused-appellant.

Accordingly, accused-appellant could only be liable for HOMICIDE, which

is punished by RECLUSION TEMPORAL. It shall be imposed in its medium
period, whose duration is from 14 years, 8 months and 1 day to 17 years
and 4 months, since neither aggravating nor mitigating circumstances had
been proved.31

The Indeterminate Sentence Law benefits the accused-appellant. Applying

it in this case, he may be sentenced to suffer an indeterminate penalty of
eight years and one day of prision mayor, as minimum, to fourteen years,
eight months and one day of reclusion temporal as maximum.

The civil indemnity imposed by the trial court should be increased from
P30,000.00 to P50,000.00 conformably with our ruling in People vs. Sison,
G.R. No. 86455, 14 September 1990 and in People vs. Sazon, G.R. No.
89684, 18 September 1990.

WHEREFORE, judgment is hereby rendered MODIFYING the subject

decision of the trial court, and as Modified, FINDING the accused-appellant
EUTROPIO TIOZON Y ACID guilty beyond all reasonable doubt of the
crime of HOMICIDE, as defined and penalized under Article 249 of the
Revised Penal Code, for the killing of Leonardo Bolima, and applying the
Indeterminate Sentence Law, he is hereby SENTENCED to suffer an
indeterminate penalty of imprisonment ranging from EIGHT YEARS AND
ONE DAY of prision mayor, as Minimum, to FOURTEEN YEARS, EIGHT
MONTHS AND ONE DAY of reclusion temporal as Maximum, with the
accessory penalties therefor, to INDEMNIFY the heirs of Leonardo Bolima
in the sum of FIFTY THOUSAND PESOS (P50,000.00), without subsidiary
imprisonment in case of insolvency, and to REIMBURSE said heirs in the
sum of FIFTY THOUSAND PESOS (P50,000.00) as reasonable expenses
for the wake and burial of Leonardo Bolima.

Accused-appellant shall be given full credit for the period of his preventive
imprisonment.

Costs against accused-appellant.

SO ORDERED.

Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.