THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. OPENIANO PAJENADO @ PEMING, DEFENDANT-APPELLANT.

In the Court of First Instance of Samar
appellant Openiano Pajenado
was charged with murder (Criminal Case No.
3492, now G. R. No. L-27680) and with illegal possession of a firearm (Criminal
Case No. 3558, now G. R. No. L-27681).  Upon arraignment he pleaded not guilty in both cases,
and after a joint trial thereof he was convicted and sentenced
as follows:

“Wherefore, in view of the foregoing considerations,
the Court finds the accused Openiano Pajenado alias Peming, guilty
beyond reasonable doubt of the crime of murder and he is hereby condemned to
suffer the penalty of Reclusion Perpetua, to
indemnify the heirs of Carlos Tapong in the amount of P6,000.00
and to pay the cost of suit.

“The same accused Openiano Pajenado is likewise guilty beyond reasonable doubt of
illegal possession of firearm and is hereby sentenced to suffer
imprisonment of not less than One (1) year nor more than Five (5) years end to pay the cost of suit.”

The facts established conclusively by the evidence are the
following:

At about 12:00 o’clock
noon on December 31, 1965
while prosecution witness Epifanio Cabe was walking along one of the streets of barrio Dapdap, municipality of Las Navas,
North Samar, and arrived in front of the house of one
Pablo Jazmines, he saw appellant holding the now
deceased Carlos Tapong by the neck.  As the two were apparently wrestling with
each other, Carlito Pajenado,
appellant’s cousin, intervened and the two
Pajenados were able to throw Tapong to the ground.  Carlito Pajenado held Tapong by the
shoulder and pinned him down to the ground, while appellant held him by one
leg.  As they thus held Carlos Tapong help­less, appellant drew his gun and fired at
him.  Thereupon, Carlito
Pajenado stood up and run away, while appellant
remained at the scene of the crime with
his drawn gun until a policeman,
another Pajenado (Ernesto), arrived and took the
firearm from him.  Carlos Tapong, mortally wounded, was thereafter carried home by
his father and other relatives.

Another prosecution witness, Pelagia Tapong, testified that at noon on the day in question, while she was at the window of
the house of her elder brother, Angel, along the street where the incident took place, she saw appellant
standing on the street; that when Carlos Tapong
appeared, appellant immediately met him and held him by the neck; that
thereafter Carlito Pajenado
intervened and with his help appellant was able to fell Carlos to the ground.

It is not denied that Carlos Tapong
died as a result of the gun-shot wound inflicted upon him on that
occasion.  Testifying on the nature
thereof, Dr. Angel Tan, municipal
health officer of Las Navas, said that he conducted a
post mortem examination of the cadaver on January 1, 1966 and found
that the deceased sustained three gun-shot wounds which, in his opinion, were
caused by a single shot from a .45 caliber pistol.  The wounds are described by him in his
autopsy report, Exhibits A, A-1 and A-2 as follows:

“Gun shot wound with entrance at the postero-medial
portion of the distal third of the thigh making an exit at its upper promixmal third in the antero-lateral
mar­gin, making another entrance at the right hypogastric
region, penetrating the abdo­minal cavity. 
Perforating the intestines, penetrating the left dome
of the diaphragm to enter the left thoracic cavity.”

Dr. Tan also testified that considering the presence of powder burns in the body
of the deceased, he must have been
shot at a distance of less than one meter, and that the cause of his death was shock due to external and internal hemorrhage.

The issues raised in the assignments of error made in appellant’s
brief call for the resolution of:
firstly, the question of whether appellant should be convicted only of homicide instead of
murder, and whether, upon the evidence of record, he should also be found
guilty of the crime of illegal possession of a firearm.

The Solicitor General agrees with appellant’s view that the
latter should be convicted merely of homicide committed with one aggravating
circumstance not offset by any mitigating circumstance, because the qualifying
circumstances of evident premeditation and treachery alleged in the infor­mation
have not been proved.

We disagree.

The testimony of prosecution witness Pelagia
Tapong clearly shows that, for sometime before the
incident, appellant had been waiting for Carlos Tapong
to appear, and that as soon as the latter showed up and arrived in front of the
house of Pablo Jazmines, appellant met him and held
him by the neck; that thereafter his cousin Carlito
helped him throw their victim to the ground. 
This, We believe, is sufficient evidence of
premeditation.

We agree, however, that treachery was not proved.  On the other hand, the aggravating
circumstance of abuse of superior strength, admitted by appellant’s counsel (p.
8, appellant’s brief), must be
considered in the imposition of the corresponding penalty.

Upon the question of
whether or not appellant should also be
convicted of the crime of illegal possession of a firearm, We agree
with both appellant’s counsel and the Solicitor
General that the appealed decision
should be reversed.

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 this case to
prove that the firearm used by appellant in committing the offense charged was
not properly licensed.

It can not 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.  A 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.)

WHEREFORE, judgment is hereby rendered as follows:

(1)  Appellant is found
guilty of murder, with the aggravating circumstance of use of superior
strength, without any mitigating circumstance to offset the same, but for lack
of the required number of votes to impose the corresponding penalty in its
maximum degree, We only affirm the penalty of reclusion
perpetua imposed upon him by the trial
court.  However, the indemnity appellant must pay the heirs of Carlos Tapong is increased to P12,000.00.

(2)  The appealed decision
is reversed and set aside in so far as it finds appellant guilty of illegal
possession of a firearm, with the
result that he is hereby acquitted of said charge.

Modified as above indicated, the appealed decision is affirmed in all other respects, with costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Ruiz Castro,
Fernando, Teehankee, Barredo,
and Villamor, JJ., concur.