MALUM PROHIBITUM
The offense of illegal possession of firearm is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. (People v De Gracia, 7/6/94)
- Manufacture, deal in, acquire, dispose or possess. It is these acts relative to firearms. The obvious underlying principle is the undesirability of the proliferation of firearms and their free traffic and possession. This is clear from the first two “whereas” clause of P.D. 1866. It is then clear that illegal possession, etc. is a malum prohibitum. For purpose of simplicity we will confine our analysis to “possession”, although what we will discuss hereunder applies to manufacture, dealing in, acquiring or disposing as well.
It is not correct to say without qualification that “intent” is immaterial. Intent as to possession is immaterial. Intention to possess is material. Whatever the purpose of the possession may be is consistently immaterial. That one was in possession of an unlicensed firearms merely for one’s protection without intending harm on anybody is a fruitless defense. It is the clear doctrine of such cases as People v. de la Rosa, 284 SCRA 158 that “mere possession without criminal intent is sufficient on which to render a judgment of conviction”.
HOWEVER, possession must be established beyond reasonable doubt, and in view of the special meaning that “possession” has in criminal law, discovery by police, officers alone of a firearmin the baggage or gloves compartment of a car will not necessarily be sufficient to sustain a conviction of the car owner or driver. Essential to the legal concept of “possession” in illegal possession cases is animus possidendio. (People v. de la Rosa, supra; People v. Sayang, 110 Phil 565).
How is animus possidendi established? There must be proved either by direct or circumstantial evidence the “intent” of the accused to possess, or to keep the firearm.
a.) Animus Possidendi is determined by recourse to overt acts prior to or simultaneous with possession and other surrounding circumstances. (People v. de la Rosa) when it is established that the accused purchased the weapon in question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that an unlicensed firearms was under the apparent control and power of the accussed. (People v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001) holds that the “gravamen” for the offense of violation of P.D.1866 is the possession of firearm without the necessary permit and/or license. “The crime is immediately consummated upon mere possession of a firearm devoid of legal authority, since it is assumed that the same is possed with “animus possidendi” Does it then follow that everyone found with the firearm is in “possession” thereof for the purpose of prosecution and conviction under P.D. 1866 as amended by R.A. 8294? The results would be patently absurd.
- A person who finds a firearms and takes it with him to the police station for the purpose of turning it over to the police should be commended, rather than prosecuted.
- A person who is stopped at a check-point at which it is discovered that there is firearms – placed either advertently or inadvertently in his baggage compartment without his knowledge– cannot be held liable for illegal possession.
- If the offender was in possession of an unlicensed only on the occasion of the shooting for transitory purpose and for the short moment in connection with the shooting, the Supre Court held in People v. Macasling, 237 SCRA 299 that there was no evidence of “animus possidendi”.
- It then appears to be the more reasonable position that where a person is apprehended with an unlicensed weapon, animus possidendi will be disputably presumed. The accused may controvert the presumption of animus possidendi. To convict, the court needs proof beyond reasonable doubt of animus possidendi.
1.4 What the prosecution must prove for it to succeed under the law is two-fold: first, the existence of the firearm; second, the absence of a license or a permit to possess. (People v. Rugay, 291 SCRA 692)
a.) To prove the existence of the firearm, it is not absolutely necessary that the object evidence be presented. It is very well possible that the accused effectively conceals the weapon before his apprehension. Incontrovertible testimonial evidence may successfully established the existence of the firearm. (People v. Narvasa, G.R. 132878 [November 16, 1998]),
b.) An interesting question arises. The present law makes penalties depend on the caliberof the firearm, i.e, on whether it is high-powered or low-powered In People v. Gutierrez, G.R. 132878 (January 18, 1999) the Supreme Court ruled that a U.S. carbine M1 caliber .30 was high-powered because it was capable of ejecting more than one bullet in one squeeze. If it is the criterion, then logically, caliber can be established by testimony establishing the manner in which the firearm ejected bullets. The distinguishing features of particularly firearms, furthermore, that may be recited by keen observer sworn in a s witness my identify the firearm as well as it caliber. This can be established by a judicious combination of the testimonial evidence of observers and experts.
c.) A firearm is unlicensed when a certification from the “Firearms and Explosives Unit” attests that no license has been issued. There will still be a case for illegal possession if one holding a firearm duly licensed carries it outside his residence when he has no permit to carry it outside his residence (Pastrano v. Court of Appeals, 281 SCRA 287). A fortiori, the use of a licensed firearm by one not licensed or permitted to use it would still be illegal possession.
d.) A security guard employed by a security agency and issued a firearm by the agency has the right to assume that the firearm issued to him is a licensed firearm. If it turns out that the firearm is not licensed, there is no animus possidendi of an unlicensed firearm. (Cuenco v. People, 33 SCRA 522). The case is obviously different, however, if a police officer leaves with a cousin for safekeeping his firearm. The cousin knows fully well that he has no permit or authority to keep the firearm. If he accepts to do this favor, he is indictable. (People v. Sayong, 110 Phil 565)
- Provided no other crime is committed. It is this proviso in the amendatory law that has visited countless woes on numerous judges and has occasioned not easily reconcilable decisions by the Supreme Court. It is obviously a case of not only poor but miserable draftsmanship!
2.1 It is clear that where there is no other offense except the unlawful possession of a firearm, the penalties provided for in the amended Section 1 shall be imposed: prision correccional in its maximum period for low-powered firearms, and prision mayor in its maximum periods for high-powered firearms. Thus in People v. Nunez, G.R. 112092 (March 1, 2001) holds that a person may be convicted of simple illegal possession if the illegal possession is proved and the frustrated murder and murder case – involving the use of the illegal possession – has not been sufficiently proved. People v. Avecilla, G.R. 117033 (February 15, 2001) teaches that “the crime of illegal possession of firearms, in its simple form, is committed any of the crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup d’etat”.
2.2. It is also clear that where either homicide or murder is committed with the use of an unlicensed firearm, such use shall constitute an “aggravating circumstances”. It is well known that R.A. 8294 was initiated by Senator Ramon Revilla as a favor to his friend Robin Padilla who was then serving sentence for illegal possession. It was therefore meant to be more benevolent, as it is in the penalties it impose. Senator Revilla, however, could not see far enough (and regrettably neither could other legislators) and the effect at least in the case of murder is that it may send the accused to the lethal injection chamber where otherwise he would not be meted out the death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001) with the Chief Justice himself as ponente illustrates the complication the law has introduced. In this case, the accused had been charged with two offenses: robbery with homicide and illegal possession of firearms. During the pendency of the case, the amended law came into force. The court then held that insofar as R.A. 8294 was favorable to the accused in that it spared him from separate prosecution for illegal possession, the charge for illegal possession was dropped. Insofar, however, as it increased the penalty for robbery with homicide, the aggravating circumstances of the use of unlicensed weapon could not be appreciated. Rule 110, Section 9 of the Revised Rules of Criminal Procedure will apply: As an aggravating circumstances, the use of the unlicensed weapon must be alleged in the information.
2.3 When the violation of the law penalizing unlicensed weapon is “in furtherance of or incident to, or in connection with the crimes of rebellion, insurrection, sedition or attempted coup d’etat” then the violation is absorbed in the main offense. (R.A. 8294, Section 1).
2.4 What happens when an unlicensed weapon is used in the commission of other offenses other that homicide, murder, rebellion, insurrection, sedition or attempted coup d’ etata? People v. Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) provides the answer in the distinctively clear language of Justice Panganiban: “The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that “no other crime was committed by the person arrested’. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.” In brief, where the accused commits a crime other than those enumerated with the use of an unlicensed weapon, no separate charge for such use will be brought against him. Consistent with this is the disposition by the Supreme court decreed: “Accordingly, all pending cases for illegal possession of firearms should be dismissed if they arose from the commission” of crimes other than those indicated in Section 1 and 3 of R.A. 8294.
2.5 Clearly the law leads to absurd results, for when the use of an unlicensed weapon attends the commission of a crime, no matter how trivial, the case of illegal possession recedes into judicial irrelevance. The matter is definitely one that calls for a curative statute and the Supreme Court has referred the matter to the Congress for another look. One moral lesson can be learned: Laws passed as favor to one’s friend is a poor laws!
