THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AMI; APPELLANT, VS. PETRONIO REMERATA, DEFENDANT AND APPELLEE.

The accused Petronio Remerata was  convicted of stealing a rifle. After  sentence was passed,  the Fiscal  filed  another information charging him with illegal possession of the same firearms.   Remerata set up autrefois convict, and upon, his motion, the Court of First Instance of Cotabato, invoking Rule 113, section 9, dismissed the second information, on the theory that the illegal possession was inseparable from the theft of which the accused had already been convicted and sentenced. The Fiscal appeals to this court from the order of dismissal.

The appeal must be sustained.  While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal possession of firearms is not committed by  mere transient possession of the weapon. It requires something more: there must be not only intention to own but also intent to use (People vs. Estoista,^[1] 49 Off. Gaz. [8] 3330), which is not necessarily the case in every  theft of firearms.  Thus,  stealing a firearm with intent  not to use but to render the owner defenseless, may suffice  for purposes of  establishing a case  of theft,  but would  not justify a charge of illegal possession of the firearms, since intent to hold and eventually use  the weapon would  be lacking.

Besides, an information charging larceny will not usually sustain a  conviction for  illegal possession of  firearms, for it does not ordinarily allege that the accused had no previous authority or  license to keep the  weapon,  this circumstance being immaterial to the theft.   On this basis, we  held in People vs. Alger,^[2] 48, Off. Gaz. (11) 4799, that a previous conviction for homicide is no bar  to subsequent prosecution for illegal possession bi the firearm employed in ‘the  killing.

The  first information for theft in Remerata’s case is not before us, not having been presented in  evidence,, and we  can not say  that  its terms would have enabled  the State  to convict him for illegal possession of  the rifle involved.

Since  there can  be theft  without  illegal possession  of firearms; and vice-versa, illegal possession may exist without the  element of taking (asportation) that is essential in theft, conviction of  one offense will  not be  a bar  to prosecution for other.

The order  dismissing  the information is reversed  and the case remanded for further proceedings.  Costs against the accused.  So ordered.

Parás, C. J., Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion, and Endencia, JJ., concur.

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^[1] 93 Phil.,  647.
^[2]92 Phil.,  227.