OWNERSHIP IS NOT AN ESSENTIAL
ELEMENT OF ILLEGAL POSSESSION
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.
INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL
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 firearms, it must still be shows that there was animus possidendi or an intent to possess on the part of the accused.
There is no evidence of animus possedendi if the offender was in possession of an unlicensed firearm only on the occasion of the shooting for a transitory purpose and for the short moment in connection with the shooting.
Lack of evidence is an essential element of the crime and that the same must be alleged in the Information and duly proved.
(People -vs- Macasling, 237 SCRA 299)
Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as amended. One may be convicted of possession of an unlicensed firearm even if he is not the owner thereof.
(People -vs- Reynaldo Cruz, GR No.
76728, August 3, 1988)
Even if the gun is “paltik,” there is a need to secure license for the gun, and if found without any license therefor, the offender is liable for violation of PD 1866.
(People vs- Filemon Ramos, 222 SCRA 557)
If an unlicensed firearm is used to commit a crime other than homicide or murder, such a direct assault with attempted homicide, the use of an unlicensed firearm is neither an aggravating circumstances nor a separate offense. Since the law uses the word Homicide or Murder, possession of an unlicensed firearm is not aggravating in Attempted Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000)
Where the accused was charged of Murder and violation of PD 1866 and that, in the meantime, Republic Act 8294 took effect, the accused should be convicted only of Murder. The use of unlicensed firearm should not be considered as aggravating because the Court will have to impose the death penalty which cannot be allowed because, at the time of the commission of the offense, the death penalty cannot as yet, be imposed. However, in his concurring opinion, Chief Justice Hilario Davide, Jr. declared that, under such a factual milieu, the charge of violation of PD 1866 should continue and if the accused is found guilty, he should be meted the death penalty under Republic Act 8294.
(People -vs- Victor Macoy, GR No.
126253, August 16, 2000)
Where the prosecution failed to adduce the gun in evidence coupled with the fact that per Certification of the FEU, ” no available information regarding the license for the gun and the inconsistency in the evidence of the prosecution, the latter failed to discharge its burden.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Mere possession without criminal intent is sufficient on which to render a judgment of conviction for violation of PD 1866, as amended. However, there must be animus possedendi or intent to possess without any license or permit. Good faith is not a defense. Neither is lack of criminal intent.
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)
Temporary, incidental, casual or harmless possession of firearm is not punishable. Hence, stealing a firearm to render the owner defenseless is not a crime under the law. (idem, supra)
Possession includes actual physical possession and constructive possession. The animus can be determined from the overt acts of the accused prior to or coetaneous with and other surrounding circumstances of such possession. Hence, where the accused found a gun and was on his way to deliver the gun to the police authority and was arrested, in the process, there is no animus possedendi.
(People -vs- Rodolfo Dela Rosa, et al., supra)
Even if a paltik is a homemade gun and thus illegally manufactured nevertheless, the Prosecution is burdened to prove that the accused has no license for the gun.
(People -vs- Felimon Ramos, et al., 222 SCRA 557)
For the accused to be guilty of violation of PD 1866 as amended the Prosecution must prove: (a) the existence of the subject firearm; (b) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Where the accused is convicted of violation of Republic Act 8294 and meted a penalty less than six (6) years, and a fine of P15,000.00, he should be ordered to undergo subsidiary imprisonment in case of insolvency.
(Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290)
In the light of “People -vs- Martin Simon,” 234 SCRA 555, and Articles 13 and 14, in relation to Article 63, of the Revised Penal Code and the Indeterminate Sentence Law for violation of the Revised Penal Code may now be applied for violation of PD 1866, as amended, and Republic Act 6425, as amended.
Even if a person is licensed to possess a firearms but brings out firearm outside of his residence without permit therefor, he is guilty of violation of the last paragraph of Section 1 of PD 1866, as amended. A Mission Order cannot take the place of a license. A Mission Order can only be issued to one licensed to possess a firearm.
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287)
If the accused borrowed a gun from another who is licensed to possess firearm, may the former be liable for violation of PD 1866, as amended? Yes. Even if the gun is licensed to one and lends it to another, the latter is liable for violation of PD 1866, as amended. A license to possess a firearm and a permit to carry a licensed firearm outside of his residence is not transferable.
(Pedrito Pastrano -vs- Court of Appeals, et al., supra)
Even if the firearm subject of the crime is not adduced in evidence one may still be convicted of possession of an unlicensed firearm as long as proof was adduced that the acused was in possession of a firearm.
(People -vs- Felicisimo Narvasa, GR No.
128618, November 16, 1998)
NOTE:Under Republic Act 8294, the penalty depends upon the caliber of the gun. Suppose there is no testimony as to the caliber of the gun?
Where a security guard was given by his employer, a security agency, a firearm, and the accused assumed that the employer secured the license for the firearm but that it turned out that the employer failed to get any license, the security guard is not criminally liable. The security guard has the right to assume that the security agency secured the license.
(Ernesto Cuenca -vs- People, 33 SCRA 522)
If a constabulary soldier entrusted his gun to the accused for safekeeping and later the accused found in possession of the gun, the accused is guilty of possession of unlicensed firearm. To exculpate himself, the accused must prove absence of animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)
“A” secured a loan from B and pledged his unlicensed firearm as security for the loan. A promised to pay his loan and retrieve the firearm as soon as he had money. B found in possession of the unlicensed firearm. For the court to sustain the contention of B is to authorize the indefinite possession by B of the unlicensed firearm because there was no way to determine when A could pay his account. “A” may be convicted.
(People -vs- Cornelio Melgas, 100 Phil. 298)
If a licensed firearm if used to commit Murder or Homicide, such circumstances is merely a special aggravating circumstance which must be alleged in the Information and cannot be offset by any mitigating circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998)
The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA 601; People -vs- Jesus Deunida, and People -vs- Barros and People -vs- Daniel Quijada 259 SCRA 191 had been overtaken by Republic Act 8294.
Under the amendment, the death penalty may now be imposed if the accused is convicted of Murder with the use of licensed or unlicensed firearms.
As long as the accused is proved to have been in possession of the unlicensed firearm even if the firearm is not adduced in evidence, conviction under the law is proper.
(People -vs- Felicisimo Narvasa, supra)
Republic Act 8294 took effect on July 6, 1997.
If the accused is charged of Murder and violation of PD 1866 and during the trial, Republic Act 8294 took effect, the accused cannot be convicted of violation of PD 1866, as amended. Neither should the possession of an unlicensed firearm be considered as an aggravating circumstance as it will be less favorable to the accused. If the accused used a sumpak to kill the victim, the prosecution must prove that he had no license or permit to possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9, 1999)
Compare “People -vs- Wilfredo Filoteo,” 290 SCRA 627 where the accused was convicted of Murder and violation of PD 1866 and during the pendency of the appeal, Republic Act 8294 took effect. Our Supreme Court affirmed the conviction of the Accused of two (2) crime of Homicide and violation of PD 1866, as amended, and applied the penalty for the crimes under the amendment.
In “People -vs- Veriato Molina, et al.,” 292 SCRA 742, our Supreme Court En Banc declared that where the accused was convicted of said crimes, by the Trial Court but that during the pendency of the appeal, with the Supreme Court, Republic Act 8294 took effect, the accused should only be convicted of Murder with the use of an unlicensed firearm as mere a special aggravating circumstance.
Murder, under Republic Act 8294, is used in its generic term and, hence, includes Parricide
(People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)
A United States carbine M1, caliber .3-0 is a high-powered gun because it is capable of emitting two or three bullets in one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)
It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to apply. It is not enough that there is evidence of the existence of the gun which can be established either by testimony or presentation of the gun itself.
Possession of an unlicensed firearm and used in killing is a special aggravating circumstance.
(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18, 1998)
The Decision of the Supreme Court in People versus Rex Bergante, et. al., GR No. 120369, February 27, 1998, that the use of an unlicensed firearm to commit murder is only a generic aggravating circumstance is no longer true.
Possession under the law may either be actual physical possession or constructive possession. However, although the crime under PD 1866, as amended, is malum prohibitum, however, there must be animus possidendi, or intent to possess. Animus possidendi may be inferred from the fact that an unlicensed firearm is under the apparent control and power of the accused. however, animus possidendi may be contradicted if a person in possession of an unlicensed firearm does not assert a right thereto.
If the possession of an unlicensed gun is merely temporary, incidental or transient, the same is not punishable under PD 1866. However, the law does not provide for a fixed period of time for one to be deemed in “possession” of an unlicensed firearm. (People -vs- Rolando Verches, 233 SCRA 174). Each factual milieu must be considered.
