PEOPLE OF THE PHILIPPINES, APPELLEE, VS. JOHNNY MALINAO Y NOBE, APPELLANT.

People versus Malinao

The Case

This is People versus Malinao, a criminal case on automatic review of a death sentence. The People of the Philippines prosecuted Johnny Malinao for the killing of his neighbor Nestor Otanguin and for possessing an unlicensed firearm. The trial court convicted him of illegal possession of firearm in its aggravated form under the second paragraph of Section 1 of Presidential Decree Number 1866, treating the killing as the aggravating circumstance, and imposed death. The case matters because it fixes the rule on how a killing committed with an unlicensed firearm is to be punished: not as two separate crimes, but as one composite offense, the aggravated illegal possession of firearm, carrying a single penalty.

Procedural History

Two informations were filed before the Regional Trial Court of Catbalogan, Samar, Branch 29: one for murder and one for illegal possession of firearm and ammunition. Malinao pleaded not guilty to both, and the two cases were consolidated and tried jointly. The trial court found him guilty beyond reasonable doubt of murder, but applying the doctrine in People versus Barros, it treated the murder as an aggravating circumstance in the illegal possession of firearm. It then dismissed the information for murder and convicted him of aggravated illegal possession of firearm, sentencing him to death and ordering him to indemnify the heirs of the deceased in the amount of Two Hundred Thousand Pesos. Because the penalty imposed was death, the case came before the Supreme Court on automatic review under Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act Number 7659.

Facts

Malinao and Nestor Otanguin were neighbors in Catbalogan, Samar. In the afternoon of November 9, 1994, a car driven out of the Otanguin garage accidentally hit and injured Malinao's fighting cock tied near the gate. Nestor's wife apologized and promised to discuss the matter later, as the family was rushing to catch a flight. Malinao said nothing and merely smiled.

At about six in the evening of November 14, 1994, Malinao was drinking with friends at a table on the sidewalk near his house. Nestor passed by on his way home from work. Malinao fired his gun, then invited Nestor to join them and offered him a drink, which Nestor accepted. When Nestor excused himself to go home and politely refused a second drink, Malinao drew his revolver and shot him in the chest. When Nestor fell, Malinao shot him again at the back of the head, causing instantaneous death. Four minors playing nearby witnessed the shooting and identified Malinao as the aggressor.

An autopsy showed that Nestor died of gunshot wounds to the head and chest. A paraffin test on Malinao's hands was positive for gunpowder residue, and ballistics examination showed that the bullets taken from the body were fired from a caliber .38 firearm. The Philippine National Police certified that Malinao was neither a firearm holder nor a licensee of any firearm. Malinao admitted the killing but claimed self-defense, saying Nestor drew a gun first and that the weapon fired during their struggle. The trial court rejected the claim as uncorroborated.

Issues

• Whether or not the trial court's dismissal of the information for murder operated as an acquittal of that charge, leaving only the conviction for illegal possession of firearm as the proper subject of automatic review.
• Whether or not the killing of Nestor Otanguin was attended by treachery, qualifying it as murder.
• Whether or not the elements of illegal possession of firearm were established beyond reasonable doubt.
• Whether or not Malinao should be held liable for murder and illegal possession of firearm as separate crimes, or only for the single composite offense of aggravated illegal possession of firearm.

Applicable Provisions

The second paragraph of Section 1 of Presidential Decree Number 1866, as it stood when the crime was committed, provides:

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.

This is the provision under which Malinao was convicted, and it supplies the single death penalty for the composite offense.

Article 249 of the Revised Penal Code, on homicide, provides:

The penalty of reclusion temporal shall be imposed upon any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, in the commission of which the penalty of reclusion temporal in its maximum period to death shall be imposed.

The Court refers to this penalty to show that the death penalty in the decree was designed to be higher than that for the killing standing alone.

Article 248 of the Revised Penal Code, on murder, as amended by Section 6 of Republic Act Number 7659, provides:

The penalty of reclusion perpetua to death shall be imposed upon any person who, not falling within the provisions of Article 246, shall kill another, when the killing is attended by any of the following circumstances: with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.

This provision defines the killing as murder because of treachery, which then becomes the element that aggravates the illegal possession.

Ruling

On the first issue, the Court held that the dismissal of the murder information did not operate as an acquittal. The trial court had expressly found Malinao guilty of murder beyond reasonable doubt in the body of its decision and had used the murder as the aggravating circumstance. The Court ruled that the dispositive part of a judgment should not be interpreted in a manner contrary to its ratio decidendi, and must be read in harmony with the spirit of the decision. The entire case was therefore open for review.

On the second issue, the Court held that treachery attended the killing. Two conditions must concur: the employment of means of execution that give the person attacked no opportunity to defend himself or retaliate, and the deliberate or conscious adoption of those means. Both were established by the eyewitnesses, who saw Malinao shoot Nestor in the chest for refusing another drink and shoot him again at the back of the head as he fell. Nestor could not have foreseen the assault. Evident premeditation, however, was not proved, there being no evidence of the time of determination to kill, an act showing that determination, and a sufficient lapse of time to reflect. With treachery, the crime was murder.

On the third issue, the Court held that the elements of illegal possession of firearm were proved: the existence of the firearm, established by testimony even without its presentation, and the absence of a license, established by the police certification. The eyewitness accounts, the positive paraffin test, and the ballistics report all confirmed the firearm's existence and use.

On the fourth issue, the Court held that Malinao should be liable only for the single composite offense of aggravated illegal possession of firearm. Adopting the separate opinion of Justice Regalado in the Barros case, the Court explained that the killing is the essential element that converts simple illegal possession into the aggravated form, and it would be illogical to use the same killing as an element of that offense and then punish it again as a separate crime. The Court quoted the decree:

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.

The Court nevertheless noted that Republic Act Number 8294 had since amended the decree and reduced the penalties, and it gave the appellant the benefit of its retroactive application.

Doctrine

A Bar candidate should retain these rules. First, when a killing is committed with an unlicensed firearm, the offender is liable only for the graver offense of aggravated illegal possession of firearm under the second paragraph of Section 1 of Presidential Decree Number 1866, and not for the killing and the illegal possession as two separate crimes. The homicide or murder is absorbed as an integral element of the composite offense, and only a single penalty is imposed. Second, the elements of illegal possession of firearm are the existence of the firearm and the absence of a license, and the existence of the firearm may be proved by testimony even without presenting the weapon. Third, treachery requires that the means of execution give the victim no opportunity to defend himself and that those means be deliberately adopted. Fourth, the dispositive part of a judgment must be read in harmony with its ratio decidendi and not contrary to it.

Disposition

The Supreme Court affirmed the conviction of Johnny Malinao for the composite offense of aggravated illegal possession of firearm, but modified the penalty to conform to the retroactive beneficial provisions of Republic Act Number 8294.

Remember This

The one line to memorize: a killing with an unlicensed firearm is a single composite offense, the aggravated illegal possession of firearm, punished by one penalty. Examiners use this case to test the Barros doctrine, the elements of illegal possession of firearm, and the rule that the dispositive part of a judgment must be read together with its ratio decidendi.