RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED MAYBE CONVICTED
In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz:
- the existence of the subject firearm; and
- the fact that the accsused who owned or possessed it does not have the license or permit to possess the same. (People v. Castillo, 325 scra 613)
The essence of the crime of illegal possession is the possession, whether actual or constructive, of the subject firearm, without which there can be no conviction for illegal possession.
After possession is established by the prosecution, it would only be a matter of course to determine whether the accused has a license to possess the firearm. (People v. Bansil, 304 scra 384)
Possession of any firearm becomes unlawful only if the necessary permit or license therefor is not first obtained. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also to prove beyond reasonable doubt. (People v. Khor, 307 scra 295)
“To convict an accused for illegal possession of firearms and explosives under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz: (a) the existence of the subject firearm 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 had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosive Unit that the accused has no license or permit to possess the subject firearm or explosive.” (Del Rosario v. People, 05/31/01)
We stress that the essence of the crime penalized under P.D. 1866 is primarily the accused’s lack of license or permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited by law. (People v. Cortez, 324 scra 335, 344)
Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no malice or intent to commit a crime need be proved. (People v. Lubo, 101 Phil. 179) To support a conviction, however, there must be possession coupled with intent to possess (animus possidendi) the firearm. (Supra)
PRESENT MEANING OF ILLEGAL
POSSESSION OF FIREARM
Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. The scope of the term has been expanded in Sec.5 of R.A. 8294.
Thus, the unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor may still aggravate the resultant crime. In the case at bar, although appellants may have been issued their respective licenses to possess firearms, their carrying of such weapons outside their residences and their unauthorized use thereof in the killing of the victim may be appreciated as an aggravating circumstance in imposing the proper penalty for murder. (Pp. V. Molina; Gr 115835-36; July 22, 1998)
ILLEGAL POSSESSION OF FIREARM ONLY
SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.
Where murder or homicide was committed, the separate penalty for illegal possession shall no longer be meted out since it becomes merely a special aggravating circumstance.
This statutory amendment may have been an offshoot of our remarks in Pp. V. Tac-an and Pp. V. Quijada :
“Neither is the 2nd paragraph of Sec.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 :
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 2nd offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). 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 use of an unlicensed firearm as a qualifying circumstance.” (People v. Molina; GR 115835-36, July 22, 1998)
NEW PENALTY FOR LOW POWERED
FIREARM IN ILLEGAL POSSESSION
OF FIREARMS
Petitioner, fortunately for him, is nonetheless not entirely bereft of relief. The enactment and approval on 06 Jun 1997 of RA 8294, being favorable to him, should now apply. Under this new law, the penalty for possession of any low powered firearm is only prision correccional in its maximum period and a fine of not less than P15,000.00.
Applying the Indeterminate Sentence Law, the present penalty that may be imposed is anywhere from two years, four months and one day to four years and two months of prision correccional in its medium period, as minimum, up to anywhere from four years, two moths and one day to six years of prision correccional in its maximum period, as maximum.. The court in addition, may impose a fine consistent with the principle that an appeal in a criminal case throws the whole case open for review by the appellate tribunal. (Mario Rabaja v CA, et al., Oct 8/97)
ACTS PUNISHABLE:
- “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”
- “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.”
3. “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 d’etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d’etat.”
4. “The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.”
- “The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor”
2. “Any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm”.
3. “Any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives”.
