THE PEOPLE OF THE PHILIP­PINES, PLAINTIFF-APPELLEE, VS. ENRIQUE SOLLANO, JR., NE­POMUCENO LAUDE, ROMULO TUMULAK, RODULFO TUMULAK, PINIONG LAUDE ALIAS EUFEMIO TITO AND ATING LAUM…

Direct appeal, on pure questions of law, in­terposed
by the above-named accused-appellant Enrique Sollano,
Jr., against a judgment by the Court of First Instance of Cebu,
in its Criminal Case No. V-8955, convicting him of illegal pos­session
of firearms, and imposing the penalty of one (1) year and one (1) day to two
(2) years and four (4) months upon an amended information which charged as
follows:

“The undersigned Assistant Provincial Fiscal and designated as
Special Prosecutor by Adminis­trative Order No. 113 of the Department of
Justice, Manila, in accordance with the provision of Section 1686 of the
Revised Administrative Code, as amended, accuses Enrique Sollano,
Jr., Nepomuceno Laude, Romulo
Tumulak, Rodulfo Tumulak, Piniong Laude, alias Eufemio Tito and Ating Laum, Jr., of the crime of Illegal Manufacture of Firearms
and Spare Parts, committed as follows:

“That on or about 30 March 1962, and sometime before the said
date, in the City of Danao and within the
jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating together and helping one another, with deliberate intent of gain,
wilfully, unlawfully and feloniously did then and
there make and manufacture firearms of different calibers and sizes or their
spare parts, and owned, possessed under their control and operate tools,
implements and machineries used in the manufacture of firearms or spare parts,
and after having finished the firearms, did then and there sell and dispose
same to un­authorized persons for gain and profit without pre­viously securing
the necessary permit from the proper authorities to manufacture, make or deal
in firearms for the purpose as provided by existing laws and re­gulations on
the matter.”

Appellant’s co-accused were
all acquitted on the ground of reasonable doubt.

The facts upon which appellant Enrique Sollano,
Jr., was convicted for illegal possession of firearms may be briefly stated, as
follows:

The Criminal Investigation Service of the Philippine Constabulary
had received reports that firearms were being illegally manufactured in Danao City.  Hence, an agent of the Service, one Nicanor Baring, was sent there by his chief, Major Jose Nazareno, to verify the information.  Major Nazareno gave
Baring money with which to purchase firearms. 
After mingling with the inhabitants of the place for sometime, Baring
earned the confidence of appellant Enrique Sollano,
Jr. On 15 March 1962, he
bought from appellant three (3) revolvers and had allegedly observed the shop
where the weapons were manufactured.

Baring returned to his unit with the information he had gathered
and the three (3) revolvers he had purchased. 
So, Major Nazareno decided to raid the
shop.  Before carrying out his plan, he
sent Baring ahead to pretend to buy two (2) more revolvers.  When Major Nazareno
and his men, in a civilian truck labelled
“Excursionists” arrived at the vicinity of the shop, on 30 March 1962, all the accused
scampered away.  At that time, Baring was
testing the two (2) revolvers; Major Nazareno
pretended to arrest him.  The raiding
party confiscated some paraphernalia allegedly used in the manufacture of
firearms.

The five (5) revolvers were exhibited in court as Exhibits
“A” to “E”, and the trial court, finding them to be the
ones sold by appellant Sollano, Jr., to agent Baring,
convicted said appellant, not for manufacturing the said firearms but for
illegal possession thereof.

The issues in this case are: 
(a) whether or not an accused can be convicted of illegal possession of
firearms under an information for unlawful manufacture
of firearms; and (b) whether or not evidence offered to prove unlawful
manufacture of firearms can be the basis of conviction for illegal possession
of firearms.^[1]
The aforesaid two issues may be merged into the single issue as to whether or
not illegal possession is an ingredient or forms a part constituting unlawful
manu­facture of firearms.  For if there
is variance between the offense charged in the information and that which is
proved, the accused may be convicted of that which is proved, if it is included
in the offense charged,2 and an offense proved is included in the offense charged
if its essential elements or ingredients constitute the offense proved.3

We agree with the Solicitor-General that “illegal possession
of firearms does not necessarily include illegal manufacture of firearms, yet
illegal manufacture of firearms necessarily includes illegal pos­session of
firearms”; “that one who is found liable for illegal manu­facture of
firearms cannot at the same time be held liable for illegal possession of
firearms, since the possession is inherent in manu­facturing, yet nothing
prevents an accused from being found guilty of illegal possession of firearms
but not of illegally manufacturing the same”. (Brief, page 5)

But appellant tenders another angle in the present case.  He claims that in another case he has been
separately charged for illegal possession of firearms in the same Court of
First Instance of Cebu, in its Criminal Case No.
V-8961, involving the same firearms, marked as Exhibits “A” to
“E” in Criminal Case No. V-8955 (the instant case
on appeal).  There is no record in
the present case of the other alleged proceeding but assuming the existence
thereof, its institution and pendency is no bar to
appellant’s conviction in the case at bar for illegal possession of firearms;
and whether or not his present conviction would be a block to the continuance
of the other case is a question that may be ventilated there.

The rule that an appeal in a criminal case opens the whole case
for review is invoked by the People4 as justification for its prayer
that the Supreme Court review the findings of fact of
the trial court, allegedly for the reason that the original charge of illegal
manufacture of firearms is sustained by the evidence.  This cannot be done because this is a direct
appeal from the judgment of the Court of First Instance and the Supreme Court
has no appellate jurisdiction to review findings of fact in criminal cases,
except in cases of automatic review where the penalty imposed is death or life
imprisonment.5
The cited rule has to yield to the lack of this Court’s appellate jurisdiction
to review findings of fact in direct appeals.

FOR THE FOREGOING REASONS, the appealed Judgment is hereby
affirmed, with costs against appellant Enrique Sollano,
Jr.

Concepcion, C.J., Makalintal,
Zaldivar, Castro, Fernando, Teehankee,
Barredo, and Villamor, JJ., concur.

Makasiar, J., took no part.

^[1]
Both offenses are punishable by the same provision of law, to wit:

“Sec. 2692.
Unlawful manufacture, dealing in acquisition disposition or possession of
firearms or ammunition therefor, or instrument used
or intended to be used in the manufacture of fire­arms and ammunition.  – Any person who manufactures, deals in,
acquires, disposes, or possesses, any firearms, or ammunition therefor, or instrument or implement used or intended to be
used in the manufacture of firearms or ammunition in violation of any provision
of Sections 877 to 906, inclusive, of this Code, as amended, shall, upon
conviction, be punished by imprisonment for a period of not less than one year
and one day nor more than five years, or both such imprisonment and a fine of
not less than one thousand pesos nor more than five thousand pesos, in the
discretion of the court.  If the article
illegally possessed is a rifle, carbine, grease gun, bazooka, machine gun,
submachine gun, hand grenade, bomb, artillery or any kind of ammunition
exclusively intended for such weapons, such period of imprisonment shall not be
less than five years nor more than ten years.  A conviction under this section shall carry
with it the forfeiture of the prohibited articles to the Philippine Government.

The possession of any instrument or
implement which is directly useful in the manufacture of firearms and
ammunition on the part of any person whose business or employment does not deal
with such instrument or implement shall be prima facie proof that such
article is intended to be used in the manufacture of firearms or
ammunition.” (Revised Administrative Code, as amended by Com. Act No. 56
and Rep. Act No. 4)

2 & 3 Per Sections 4 & 5, Rule 120, Rules of
Court:

“Sec. 4.  Judgment in case of
variance between allegation and proof.  – When there is variance between the offense
charged in the complaint or information, and that proved or established by the
evidence, and the offense as charged is included in or necessarily includes the
offense proved, the de­fendant shall be convicted of the offense proved
included in that which is charged, or of the offense charged included in that
which is proved.”

“Sec. 5.  When an offense includes or is included in
another.  – An offense charged
necessarily includes that which is proved, when some of the essential elements
or ingredients of the former, as this is alleged in the complaint or
information, constitute the latter.  And
an offense charged is necessarily included in the offense proved, when the
essential ingredients of the former cons­titute or form a part of those
constituting the latter.”

4
Citing Quemel vs. CA, G.R. No. L-22794, 19 January 1968, 22 SCRA 45.

5
Section 17, Republic Act 296, as amended by Republic Acts
2613 and 5440.