PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RICARDO ELESTERIO Y CARPENTERS, DEFENDANT-APPELLANT. FE CRUZ, PETITIONER, VS. EX-JUDGE ENRIQUE AGANA, THE CHIEF, NEW BILIBID P…

At two o’clock in the
morning of 8 June 1981, a
police car sighted a group of
three men and one woman on the sidewalk of Libertad street
in Pasay City
and stopped to investigate.  Patrolmen
Joseph Nepomuceno and Ernesto Maneja
alighted.  While they were frisking two
of the men, the third male made a run
for it but was caught after a brief pursuit. 
A search of his person yielded a
.32 caliber revolver and two
rounds of live ammunition.  The holster
he had dropped while attempting to escape was also recovered.  Ricardo Elesterio – for that was his name – admitted that he had no
permit or authority to carry the firearm.^[1]

In due time an information was filed against him in the Court of
First Instance of Pasay City reading as follows:

The undersigned Assistant
City Fiscal accuses
RICARDO ELESTERIO Y CARPENTERS of the crime
of VIOLATION OF GENERAL ORDER NO. 6 in rel. to PAR.
2, PRESIDENTIAL DECREE NO. 9, as amended, committed as follows:

That on or about the 8th day of June, 1981, in Pasay City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, Ricardo Elesterio y Carpenters, did then and there wilfully, unlawfully and feloniously have in his possession
and carry outside of his residence a .32 caliber revolver with SN- – 23271 and (2) two rounds live ammunitions, without having been permitted or
authorized by law.

General Order No. 6, dated September 22, 1972, reads in material part as follows:

WHEREAS, in order to restore the tranquility and stability of
the nation and secure the people from violence, injuries and loss of lives in
the quickest possible manner and time, it is necessary to prohibit the inhabitants of the country from keeping any
firearm without a permit duly and legally issued for that purpose as well as to
prohibit the carrying of such firearm outside the residence of the duly
licensed holder thereof;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of
all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081 dated September 21, 1972, do hereby
order that henceforth and until otherwise ordered by me or by my duly
designated representative, no person shall keep, possess or carry outside of
his residence any firearm unless such person is duly authorized to keep possess
or carry any such firearm and any person violating this order shall forthwith
be arrested and taken into custody and held for the duration of the emergency
unless ordered released by me or by my duly designated representative.

Presidential Decree No. 9, promulgated on October 2, 1972, reads partly as follows:

WHEREAS, by virtue of said Proclamation No. 1081, General Order
No. 6 dated September 22, 1972
and General Order No. 7 dated
September 23, 1972,
have been promulgated by me;

WHEREAS, subversion, rebellion, insurrection, lawless violence,
criminality, chaos and public disorder mentioned in the aforesaid Proclamation
No. 1081 are committed and abetted by the use of firearms, explosives and other
deadly weapons;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of
all the Armed Forces of the Philippines,
in order to attain the desired result of the aforesaid Proclamation No. 1081
and General Order Nos. 6 and 7, do hereby order and decree that:

1.  Any violation of the aforesaid General Order
Nos. 6 and 7 is unlawful and the violator shall, upon
conviction suffer:

x             x          x

(b)  The
penalty of imprisonment ranging from twenty years to life imprisonment as a
Military Court/Tribunal/Commission may direct, when the violation is not
attended by any of the circumstances enumerated under the preceding
paragraph.”

The accused pleaded not guilty when arraigned on 15 July 1981.^[2]
Trial was held on 14 August 1981.^[3] Patrolman Nepomuceno
testified for the prosecution and narrated the arrest and search of the
accused.  The accused, testifying for himself, said the firearm did not belong to him but was
passed to him by one Ray Arong minutes before the
patrol car passed by them.  The judge
then asked if the defense had any more witnesses to present.  The defense counsel said he had, to corroborate the testimony of
the accused that he had earlier gone to several discotheques.  The judge said this would only be cumulative, whereupon the counsel said,
“Well, if that is the case, Your Honor, we rest our case with the
testimony of our lone witness.”^[4] The judge thereupon dictated his decision in
open court finding the accused guilty and sentencing him to life imprisonment.^[5] The defense counsel manifested his intention
to appeal, to which the judge replied: 
“The appeal is automatic.  In
the meantime he has to be held in custody. 
I am cancelling the bailbond.”^[6]

Elesterio was committed to the national
penitentiary on 17 August 1981.  He escaped on 21 October 1981, and filed a motion for reconsideration, which was denied on 18 November 1981.  He was recaptured on 30 March 1983. 
On 12 May 1983, his aunt, Fe
Cruz, filed a petition for habeas corpus on his behalf, alleging
that:  a) the sentence imposed upon him
was unlawful and excessive; b) he was denied due process because the trial was
held only in one sitting and the defense was not allowed to present additional
witnesses; and c) the person who represented him at the trial was not a lawyer.

In its resolution dated 3
December 1984, the Court dismissed the petition for habeas corpus
after considering the same with the return to the writ submitted by the
Solicitor General.  However, it resolved
“to consider the said accused to have filed a timely notice of appeal; to
REQUIRE the court a quo to
elevate the records of Criminal Case No. 81-913-P to this Court within ten (10)
days from notice; and to ALLOW the accused to post a bail bond of P5,000.00 for his provisional release.”^[7]
The parties subsequently submitted their respective briefs.

In dispensing with the testimony of the other defense witnesses
who were only intended to corroborate the averment of the accused that he had
been to several discotheques before his apprehension, the trial court was not
acting arbitrarily.  The trial judge had
the right to control the conduct of the trial and to bar unnecessary testimony,
such as that intended merely to corroborate relatively unimportant matters, that would only unnecessarily delay the case.  In
People v. Barabasa,^[8] we held that suppression of that kind of
evidence “did not deprive the accused of any substantial right” as
“the evidence was merely cumulative and unnecessary because it would not
have affected the result of the case in the least.”

The mere fact that the trial was concluded in one sitting only is
not necessarily indicative of irregularity or inordinate haste.  If all the evidence needed by both parties could be presented by them in that single session, there is no reason why any resetting had to be
made.

As for the circumstance that the defense counsel turned out later
to be a non-lawyer, it is observed that he was chosen by the accused himself
and that his representation does not change the fact that Elesterio
was undeniably carrying an unlicensed firearm when he was arrested.  At any rate, he has
since been represented by a member of the Philippine bar, who prepared the
petition for habeas corpus and the appellant’s brief. ^[9]

The Court agrees, however, that Judge Enrique Agana
was exceptionally careless, if
not deliberately high-handed, when he
immediately after the trial dictated his decision in open court.  One may well suspect that he had prejudged
the case and had a prepared decision to foist upon the accused even before the
submission of the case.  And what
is worse is that the decision was wrong.

The elements of the offense punished by General Order No. 6 in
relation to Par. 2, Presidential Decree No. 9, as amended, are first, the
carrying of a firearm outside one’s
residence, and second, the motive for such act, which is “in furtherance
of or to abet, or in connection with subversion, rebellion, insurrection,
lawless violence, criminality, chaos or public disorder.”

A reading of the information filed against the accused will readily
show that the second element of the imputed crime is not alleged at all.  All that is averred is that Elesterio, on the date and place indicated, had in his
possession and was carrying outside his residence a firearm and two live bullets without the proper permit or
authorization.  That is only the first
element.  There is no allegation in the
information that the accused was carrying the weapon outside his residence for
the purposes mentioned in the laws supposedly violated.

This omission was all too obvious, and it is a wonder that the
trial judge did not see it at all. 
Perhaps he did not choose to see it. 
In any event, it is clear that the accused could not have been convicted
of a violation of General Order
No. 6 in relation to P.D. No. 9, par. 2, and so should not have been sentenced
to the severe penalty of life imprisonment.

But all this notwithstanding, the accused-appellant is not
entirely guiltless.  For, although his
act is not punishable under the laws invoked by the prosecution, it is undeniable
that it comes under the provision of Section 2692 of the Revised Administrative
Code, as amended by Rep. Act No. 4, for illegal possession of firearms.

This provision reads as follows:

SEC. 2692.  Unlawful manufacture, dealing in,
acquisition, disposition, or possession of firearms, or ammunitions therefor, or instrument used or intended to be used in the manufacture of firearms or
ammunition.  – Any person who manufactures, deals in, acquires, disposes, or
possesses, any firearm, parts of 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 eight hundred
and seventy-seven to nine hundred and six, 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 of any kind
or 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 article or articles to the Philippine Government.

The possession of any
instrument or implement which is directly useful in the manufacture of firearms
or 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.

Under this provision, mere possession of an unlicensed firearm is
malum prohibitum
and is punishable regardless of lack of criminal intent or proof of
the ownership of the firearm by another person. 
Even if it were not, the accused in the case at bar still has not been
able to explain his possession of the revolver short of the unsupported
statement that it had been handed to him by one Ray Arong
who, by his own testimony, was a casual
acquaintance he had met only two days earlier. 
He does not even explain why he
received the gun when it was for no apparent reason shoved on him by the said Arong.

It is well-settled that the nature and cause of the accusation are
determined not by the name given to the offense
but by the description of the manner and circumstances in which it was
committed.  The designation of the
offense or of the law violated is a conclusion of law made by the prosecuting
officer but this is not binding on the court. 
That conclusion must ultimately be made only by the court itself after
the trial and following its own ascertainment of the facts needed to constitute
the elements of the crime attributed to the accused.  If an essential element is not alleged to
prove a graver crime, no conviction therefor may be
rendered.  Conversely, if the elements
proved constitute a less serious offense, conviction therefor
is justified although it is the higher offense
that is alleged.  In other words, it is
the recitals of the facts of the commission of the offense, and not the
nomenclature of the offense, that should determine the crime being charged in
the information.^[10]

Of particular relevance is the case of People v. Mamogay,^[11]
where the failure of the information to allege that the murder had been committed
with the use of an illegally possessed firearm removed it from the coverage of
P.D. No. 9 in relation to G.O. No. 6. 
Nevertheless, the recitals in the information were specific enough to
justify the conviction of the accused under Section 2692 of the Revised
Administrative Code for illegal possession of firearms.

The information in the case at bar contained allegations (later
established at the trial) which were sufficient to warrant the conclusion that
the offense committed by the accused was violation of Section 2692 of the
Revised Administrative Code as amended. 
He should therefore have been meted the penalty prescribed therein, not
the sentence of life imprisonment for violation of the presidential decree.

The prescribed penalty is imprisonment for a period of not less
than one year nor more than five
years and a
fine of not less than P1,000.00 nor more than
P5,000.00 in the discretion of the court. 
The recommendation of the Solicitor General, considering the facts and
circumstances of this case, is “an indeterminate penalty of imprisonment
from three years and one day as minimum to five years as maximum and a fine of
P3,000.00, deducting from the sentence such period of
detention, if any, to which the accused may be entitled.” But since the
records show that he has been under detention since 1983, or for more than the
maximum sentence imposable on him, there is no question that he is entitled to
be released immediately upon payment of the fine, as an indispensable part of
the penalty, which we hereby fix at P1,000.00.

WHEREFORE, the accused is declared guilty of Illegal
Possession of Firearms under Section 2692 of the Revised Administrative Code as amended.  Inasmuch as he has been detained for
more than the maximum period of imprisonment imposable for the offense, he is
hereby ordered released immediately upon payment of the fine of P1,000.00.

SO ORDERED.

Narvasa, (Chairman), Gancayco, Griño-Aquino, and Medialdea, JJ., concur.

^[1] Rollo, pp. 41; 47.

^[2]
Original Records, p. 15.

^[3] Ibid., p. 32.

^[4] Rollo, p. 50.

^[5] Ibid., pp. 50-51.

^[6] Id.,
p. 51.

^[7] Id.,
p. 5.

^[8] 64 Phil. 399.

^[9] Rollo, pp. 32-37; Rollo (G.R. No. 63971 – Habeas
Corpus), p. 39.

^[10] US v. Treyes, 14 Phil. 270; US v. Lim San, 17 Phil. 273; Oca v. Judge Jimenez and Inocentes,
115 Phil. 420.

^[11] 114 SCRA 900.