PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EUTROPIO TIOZON Y ACID, ACCUSED-APPELLANT.

In an information filed by the Asst.
City Prosecutor of Caloocan City on 27 February 1989 with Branch 131 of
the Regional Trial Court (Caloocan
City) of the National Capital
Judicial Region, accused-appellant was charged for violation of Presidential
Decree 1866, as amended, committed as follows:

“That on or about the 24th day of February 1989 in Kalookan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, without any lawful motive or
purpose, did then and there wilfully, unlawfully and
feloniously have in his possession, custody and control one .38 cal. revolver,
marked Squires Bingham with SN 180169 with three live ammunitions without
authority of law, which firearm was used with treachery and evident
premeditation in shooting one Leonardo Bolima y Mesia, which caused his death.”^[1]

Accused-appellant pleaded not guilty when arraigned on 15 March 1989.^[2]
Pre-trial was conducted and thereafter the trial court received the evidence
for the parties.

In a decision promulgated on 30 June 1989,^[3]
the court a quo found accused-appellant guilty and sentenced him
as follows:

“WHEREFORE, in view of all the foregoing, the court finds the
accused EUTROPIO TIOZON Y ACID guilty beyond reasonable doubt of the crime of
P.D. 1866 and Murder qualified by treachery and hereby sentences him to suffer
life imprisonment; to indemnify the heirs of the deceased Leonardo Bolima the sum of P30,000.00; to
reimburse the heirs of the victim the sum of P50,000.00 as reasonable expenses
for the wake and burial expenses and to pay the costs.”

According to the trial court, were it not for its abolition,
“the death penalty, the sentence imposable under 2nd pa.,
Section 1 of P. D. 1866, as amended”, should have been imposed.

On 5 July 1989
Accused-appellant filed a motion to reconsider the decision^[4]
which, however, was denied by the court in its order of 16 August 1989.^[5]
On 17 August accused-appellant filed a Notice of Appeal.^[6]
Hence, the case is now before Us.

The facts as found by the court a quo are as
follows:

x x
x

“That at around 11:00 o’clock in the evening of February 24,
1989, while she and her husband were sleeping inside their house, they were
awakened by the loud knocks on their door; Her husband opened the door and they
saw that the person who was knocking was their “Pareng
Troping“, accused herein; her husband invited
the accused, who appeared to be very drunk, to come inside their house; once
inside their house, accused sat down and the two (accused and victim) exchanged
pleasantries; she even saw the accused showing a gun to her husband and the
latter even toyed with it; she got irritated by her husband’s playing with the
gun, so she took a few steps away from the two, however, when she looked back
to the place where her husband and the accused was, she found out that the two
had already left; five minutes later and/or after she had heard two successive
gunshots, she heard accused knocking at their door and at the same time
informing her that he accidentally shoot (sic) her husband, “Mare, mare, nabaril ko si
Pare, hindi ko sinasadya” she got scared by the appearance of the
accused who was full of bloodstains so she pushed him away from her; she
immediately went to her sister-in-law Marilyn Bolima
and both of them proceeded to the house of the accused; thereat, they saw the
victim lying with his face up; she took her husband’s pulse and when she still
felt some warmth on his body, she sought help that her husband be brought to
the hospital; accused extended his help by helping them in carrying the victim
towards the main road, however, after a few steps, he changed his mind and put
down the victim; accused reasoned out that the victim was already dead; she
pushed the accused and even without the latter’s help, they were able to reach
the main road; afterwhich, some of her neighbors
arrived bringing with them lights; thereafter, Kalookan
policemen arrived and so she caused the arrest of the accused; she spent about
P100,000.00 in connection with burial and wake of her husband.

Pat. Orlando Valencia of the Kalookan
Police Force on the witness stand testified that on February 24, 1989 in line
with his duty as policeman, a shooting incident was reported to him; he
responded to the said report by proceeding to the crime scene, thereat, he saw
the lifeless body of the victim as well as the accused whose clothing was full
of bloodstains; the cadaver of the victim was referred to the Philippine
Constabulary Crime Laboratory (PCCL) while the person of the accused was turned
over to the Homicide Section of the Kalookan City
Police Station; the day after, at around 10:00 o’clock in the evening and upon
instruction of Pfc. Alilam, he together with some Kalookan policemen accompanied the accused in retrieving
the firearm (Exh. “F”) whom the accused
threw at the grassy area particularly at the back of the latter’s house; aside
from the firearm they also recovered two (2) spent bullets (Exh.
G-6 and G-7) and three live ammunitions (Exh.
G-12, G-13 and G-14).

NBI Ballistician Ernie Magtibay testified
that he has been a ballistician of the NBI since 1984; that pertinent to this
case, he happened to examine a caliber .38 Squires Bingham with serial number
180169 (Exh. “F”); that as per his findings
the evidence shells (Exhs. G-6 and G-7) were fired
from the gun, subject matter of this case.

Forensic chemist from the NBI Edwin Purificando
testified that the paraffin test he conducted on the dorsal aspect of the left
and right hands, that is, from the wristbones to the
fingertips, of the deceased, gave negative result on the presence of nitrates (Exh. “I”). 
Likewise, the paraffin test he conducted on the dorsal aspects of the
left hand and right hand of the accused yielded negative results on the
presence of nitrates (Exh. “J”).

On the other hand, the version of the defense as testified to by
the accused is as follows:

That at about 11:30 in the evening of February 24, 1989 accused on
his way home, after coming from his work, passed by the house of his Pareng Nardo, the victim herein;
while passing infront of the said house, his Pareng Nardo called him up; when
he was about to enter the door of the house of the victim, the latter, from the
back of the door, poked a gun at him; he grabbed the gun from his Pareng Nardo and at that
instance, Rosalina Bolima emerging from her room, saw
him holding the gun; he returned the gun to his Pareng
Nardo and the latter tucked it in his waistline; he
was served with a beer and after he and the victim consumed about two bottles
of beer, they went out to buy some more; after they were able to buy some more
bottles of beer, victim carried the same and left ahead of the accused; accused
was left behind to answer the call of nature; while in the act of urinating, he
heard two successive gunshots; he followed the victim and he saw the latter
already sprawled on the ground; he inquired from his Pareng
Nardo as to what had happened to him,  “Pareng Nardo, ano ang
nangyari sa iyo?  and the
victim’s replied (sic) was “Pare, binaril ako“, he further inquired as to who shot him but the
victim who was gasping for breath could no longer talk; thereafter, he saw a
gun near the body of his Pareng Nardo;
moved by his desire to bring the said gun to the wife of the victim, he picked
the same, but after he got hold of the gun, he suddenly realized that the
policemen might see him holding it, so he threw the very same gun to the grassy
area; he then ran towards the house of the victim and he informed the wife of
the latter that his Pareng Nardo
was shot to death; he returned to the place where he left the body of the
victim but the body of the latter was no longer there; he later found out that
townspeople carried the body of the victim towards the main road; when the
policemen arrived he was ordered to go with them at the Kalookan
Police Headquarters; when he was asked by the policemen as to who shoot (sic)
the victim, his answer was, he did not see the actual shooting incident; never
did he declare nor utter before her Mareng Lina or before any police authorities that he accidentally
shoot (sic) the victim.  However, he
admitted that it was him who accompanied the policemen in retrieving the fatal
gun at the grassy area at the back of his house.”

In holding the accused-appellant guilty as above-stated, the
court a quo relied on circumstantial evidence because the
prosecution failed to present an eyewitness who could give an account as to the
actual shooting incident.  It considered
the following circumstances which it deemed sufficient to convict the
accused-appellant pursuant to Rule 133, Section 5, of the Revised Rules of
Court:

“The following are among the circumstances which points to the
culpability of the accused.

1)  That the widow of the victim saw the accused
holding a gun immediately before shooting incident happened;

2)  That accused was the last person seen in the
company of the victim immediately before the latter was shot to death;

3)  That it was the accused who purposely went to
the house of the victim on that fatal evening; The testimony of the accused
that he was merely passing in front of the house of the victim when the latter
who was standing at the window of his house called him up is less credible than
the testimony of the widow of the victim, that they were already aslept (sic) inside their house when or the aforesaid time
accused knocked at their door.

4)  That it was the accused who guided the
policemen as to the place where the fatal gun was recovered.  Here the Court believes that the gun was
purposely hid at the grassy area at the back portion of accused’s
house.  The story of the accused that he
picked the gun for the purpose of bringing it to the widow of the victim but
for fear that the policemen might see him holding the gun, he then decided to
throw it to the place where it was recovered, was too flimsy to merit
belief.  Firstly, what is his reason for
bringing it to the widow of the victim when he surely knew fully well that it
will be the policemen who will investigate the case.  Secondly, he knew for a fact, that the said
gun could lead as to the identity of the assailant of the victim, why then he
threw it at the grassy area when he could easily leave the same to the place
where he picked it up.

5)  The testimony of the wife that after hearing
two successive gunshots, accused went back to her house and informed ther (sic) that he accidentally shot her husband deserves
merit.  Besides, the Court sees no reason
for the wife to concoct such story that would point to the accused as the
culprit specially so that had not the accused became (sic) the prime suspect in
this case, he would be the best person to be used as a prosecution witness,
with more reason that from the evidence presented, it appears that the widow of
the victim harbours no ill-feeling towards the
accused otherwise, she would have prevented accused’s
entry in her house on that fatal evening.

6)  The testimony of the wife that accused, immediately
after the shooting incident took place admitted to her having accidentally
shoot (sic) the victim is admissible evidence against the accused declarant since this is covered by the rule on res gestae or one of an exception
to the hearsay rule.

Part of the gestae – Statement made by a person while a
startling occurrence is taking place or immediately prior tor
(sic) subsequent thereto with respect to the circumstance thereof, may be given
in evidence as a part of res gestae.  x x
x.  (Sec. 36, Rule 130, Revised Rules of Court, as amended).

7)  The testimony of the accused that he does not
own the gun and that it is but (sic) the accused (sic) who owns the same and in
fact the latter even tucked it in his waistline immediately before the shooting
incident happened is improbable, for, how come then that the assailant was able
to drew (sic) the gun from the waistline of the victim and fired (sic) the same
towards the back portion of the victim’s body. 
Is it not that the natural reaction of a person was to face the person
who suddenly and without permission drew something from one’s waistline.  (sic)

While there is no eyewitness who testified to having seen accused
shoot (sic) the victim, yet all the foregoing circumstances meet the criteria
set by Sec. 5, Rule 133 of the Revised Rules of Court, as amended, and
therefore points (sic) to the accused as the person who unlawfully owns the
fatal gun as well as the same person who shoot (sic) to death the victim.  “Circumstancial
(sic) evidence is admissible in the absence of an eyewitness to the commission
of the crime” (People vs. Albofera, 152 SCRA 125
(1983)).

The Court does not give credence to the denial of the accused that
he was not the one who shoot (sic) the victim as he was some distance away from
the victim answering the call of nature when the victim was killed.  Instead, the Court gives credence to the
testimony of the widow that it was the accused whom he saw in possession of the
gun, that it was the accused who was the last person seen in the company of the
victim shortly before the latter died and it was the same accused who lead
(sic) the policemen in retrieving the fatal gun.

Admittedly, as per findings of the NBI Forensic Chemist, the accused’s right and left hand yielded negative result to the
test of nitrates.  However, the same
witness testified that even when a person fired a gun, it does not necessarily
follows (sic) that his hand would be positive to the test of nitrates, as there
are still several factors which affects the presence or absence of nitrates in
the hands of a person.

x x
x

Although the fact of death of the victim (Exh.
“E”) is undisputed, still the presence of the qualifying circumstance
of treachery and evident premeditation being alleged in the Information,
must be proven like the crime itself.

To properly appreciate evident premeditation it is necessary to
establish with proof, as clear as the evidence of the crime itself (1) the time
when the offender determined to commit the crime; (2) an act manifestly
indicating that the culprit had clung to his determination; and (3) a
sufficient lapse of time to reflect upon the consequence of his act (People vs.
Lorenzo, 132 SCRA 17 (1984); People vs. Obengue, 147
SCRA 1987).  Although alleged in the
Information, the record of this case is bereft of any indication that evident
premeditation attended the killing of the victim.

However, the qualifying circumstance of treachery is appreciated in
this case since its presence could be established by the position/location of
the wound of the victim, that is at the back portion of his torso which
necessarily imply that he was treacherously shot by
his assailant.”^[7]

Accused-appellant assigns only one error in this appeal:

“THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT OF THE CRIME OF ILLEGAL POSSESSION WITH MURDER AS DEFINED
UNDER SECTION 1 OF P.D. 1866.  THE
CIRCUMSTANTIAL EVIDENCES RELIED UPON BY THE TRIAL COURT IN ITS JUDGMENT OF
CONVICTION ARE INSUFFICIENT TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF
ACCUSED-APPELLANT.”^[8]

and prays that
the decision appealed from be reversed and another be entered acquitting him.

In support of the assigned error accused-appellant submits that:

(a)  Contrary to the conclusion of the trial
court, he was not the one holding the gun immediately before the shooting
incident, for as admitted by the victim’s wife, her husband also “toyed or
played with the gun”;^[9]

(b) The testimony
of the victim’s wife that he was the last person seen in the company of the
victim is unreliable because she was left in the house when the victim and
accused-appellant went out to the store which is about 145 to 150 meters away;

(c) That the
accused-appellant pointed the place where the gun allegedly used in the killing
was recovered, should not create the unfavorable inference that he purposely
hid the gun and should not be taken against him, for knowing the reputation of
police authorities, what he did was dictated by the instinct of
self-preservation rather than guilt;

(d) The testimony
of the wife of the victim that after hearing two successive gunshots
accused-appellant went back to her house and informed her that he accidentally
shot her husband, should not have been considered by the trial court as part of
the res gestae;
and

(e) The “raciocination” of the trial court regarding the
improbability of the testimony of accused-appellant that he does not own the
gun but that it was the deceased who owned it which the latter tucked in his
waistline before the shooting incident is baseless as the records show that the
deceased was walking ahead of the accused-appellant who was left behind to
answer a call of nature; therefore, it is not highly improbable that some other
person whom the deceased might have met in the street could have taken the gun
from the waistline and shot him with it. 
It would not also be highly improbable that a person from whose
waistline a gun was grabbed could not face his assailant especially when he is
carrying something with his both hands, like the deceased who was carrying one
case of Gold Eagle beer when he was shot at. 
Moreover, accused-appellant was found negative for nitrates when a
paraffin test was conducted on him by a forensic chemist of the NBI.^[10]

The People, in its Brief filed by the Solicitor General on 18
April 1990, disagrees with the accused-appellant,
maintains that the prosecution was able to establish his guilt beyond
reasonable doubt, and prays that subject decision be affirmed in toto.  It
stresses that accused-appellant himself admitted and confirmed that he and the
victim went out together to buy some more bottles of beer; he was with the
victim after they bought the beer, and they separated only when he had the urge
to urinate seconds before the incident. 
The widow did not testify that she saw what happened in the street; what
she testified was that the accused and the victim went out together and five
minutes later she heard two shots.  There
was, therefore, nothing improbable about her testimony.

Appellee likewise contends that the
conclusion of the trial court on the hiding of the gun was based on the
evidence on record; the accused himself testified that he threw the gun on a
grassy area.  It further argues that the
conclusion of the court on the improbability of appellant’s testimony
concerning the ownership of the gun is not baseless; on the contrary, it is the
theory of the appellant that it is probable that another person may have
grabbed the gun from the victim that is highly improbable.  Since appellant was behind the victim he could
have seen a third person grabbing the gun. 
He did not testify that he saw one. 
The negative result of the paraffin test cannot be singled out to
absolve the accused-appellant from liability.^[11]

No Reply-Brief was filed.

We are now called upon to determine whether, on the basis of the
evidence adduced, the judgment appealed from should be affirmed or the
accused-appellant be acquitted.

We shall first focus our attention on the law under which
accused-appellant is indicted.

Section 1 of P.D. No. 1866 imposes the penalty of reclusion
temporal in its maximum period to reclusion perpetua
“upon any person who shall unlawfully manufacture, deal in, acquire,
dispose or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition.” It goes further by providing that “if
homicide or murder is committed with the use of an unlicensed firearm, the
penalty of death shall be imposed.”

It may be loosely said that homicide or murder qualifies the
offense penalized in said Section 1 because it is a circumstance which
increases the penalty.  It does not,
however, follow that the homicide or murder is absorbed in the offense;
otherwise, an anomalous absurdity results whereby a more serious crime defined
and penalized in the Revised Penal Code is absorbed by a statutory offense,
which is just a malum prohibitum.  The rationale for the qualification, as
implied from the exordium the decree, is to effectively deter violations of the
laws on firearms and to stop the “upsurge of crimes vitally affecting
public order and safety due to the proliferation of illegally possessed and
manufactured firearms, x x x.”
In fine then, the killing of a person with the use of an unlicensed firearm may
give rise to separate prosecutions for (a) violation of Section 1 of P.D. No.
1866 and (b) violation of either Article 248 (Murder) or Article 249 (Homicide)
of the Revised Penal Code.  The accused
cannot plead one as a bar to the other; or, stated otherwise, the rule against
double jeopardy cannot be invoked because the first is punished by a special
law while the second, homicide or murder, is punished by the Revised Penal
Code.

In People vs. Doriguez,^[12]
We held:

“It is a cardinal rule that the protection against double
jeopardy may be invoked only for the same offense or identical offenses.  A simple act may offend against two (or more)
entirely distinct and unrelated provisions of law, and if one provision
requires proof of an additional fact or element which the other does not, an
acquittal or conviction or a dismissal of the does information under one does
not bar prosecution under the other. 
Phrased elsewise, where two different laws (or
articles of the same code) defines two crimes, prior jeopardy as to one of them
is no obstacle to a prosecution of the other, although both offenses arise from
the same facts, if each crime involves some important act which is not an
essential element of the other.”^[13]

In People vs. Bacolod,
supra., from the act of firing a shot from a
sub-machine gun which caused public panic among the people present and physical
injuries to one, informations for physical injuries
through reckless imprudence and for serious public disturbance were filed.  Accused pleaded guilty and was convicted in
the first and he sought to dismiss the second on the ground of double
jeopardy.  We ruled:

“The protection against double jeopardy is only for the same
offense.  A simple act may be an offense
against two different provisions of law and if one provision requires proof of
an additional fact which the other does not, an acquittal or conviction under
one does not bar prosecution under the other.”

Since the informations were for separate offenses – the first against
a person and the second against public peace and order – one cannot be pleaded
as a bar to the other under the rule on double jeopardy.

However, to justify the imposition of the increased penalty under
Section 1 of P.D. No. 1866 because of the resulting crime of homicide or
murder, the prosecution must allege in the information and prove by the quantum
of evidence required for conviction violation of said section and, more
specifically, the use of an unlicensed firearm and the commission of homicide
or murder.  In this regard, the information
in this case is sufficient in form and substance.  It alleges illegal possession of a firearm
and of murder.  The latter is covered by
the clause “which firearm was used with treachery and evident premeditation
in shooting one Leonardo Bolima y Mesia,
which caused his death.”

We agree with the findings and conclusion of the court a quo
that more than one circumstantial evidence were duly proved and that these
circumstances point, beyond reasonable doubt, to the accused-appellant as the
one who shot and killed the deceased Leonardo Bolima
y Mesia.  For
circumstantial evidence to be sufficient to convict an accused, it is necessary
that the following requisites must be satisfied: (a) there must be more than
one circumstance, (b) the facts from which the inferences are derived are
proven, and (c) the combination of all the circumstances is such as to produce
a conviction beyond a reasonable doubt.^[14]
Or, as jurisprudentially formulated, a judgment of conviction based on
circumstantial evidence can be upheld only if the circumstances proven constitute
“an unbroken chain which leads to one fair and reasonable conclusion which
points to the defendant, to the exclusion of all others, as the guilty person,^[15]
i.e., the circumstances proved must be consistent with each other, consistent
with the hypothesis that the accused is guilty, and at the same time
inconsistent with any other hypothesis except that of guilty.^[16]

The first to the sixth circumstances mentioned by the trial court
were duly established and constitute an unbroken chain which leads to one fair
and reasonable conclusion that the accused-appellant, and no other else, shot
and killed the victim.  We do not,
however, agree with the additional observation of the trial court, in respect
to the sixth circumstance, that the statement made by the accused-appellant to
the wife of the victim immediately after the shooting incident that he
accidentally shot the victim is covered by the rule on res
gestae. 
This is a misapplication of the rule in the instant case.  Statements as part of the res
gestae are among the exceptions to the hearsay
rule.  The rule is that a witness
“can testify only to those facts which he knows of or his own knowledge;
that is, which are derived from his own perceptions.”^[17]
Accordingly, a testimony of a witness as to what he heard other persons say
about the facts in dispute cannot be admitted because it is hearsay
evidence.  There are, however, exceptions
to this rule.  One of them is statements
as part of the res gestae
under Section 36 of Rule 130 of the Revised Rules of Court.  The exceptions assume that the testimony
offered is in fact hearsay; but it is to be admitted in evidence.  Under the aforesaid Section 36, statements
may be deemed as part of the res gestae if they are made by a person while a
startling occurrence is taking place or immediately prior or subsequent thereto
with respect to the circumstances thereof. 
Statements accompanying an equivocal act material to the issue and
giving it a legal significance may also be received as part of the res gestae.

In the instant case, however, the questioned testimony of the
wife of the victim is not hearsay.  She
testified on what the accused-appellant told her, not what any other party, who
cannot be cross-examined, told her.  The
accused-appellant’s statement was an “oral confession”, not a part of
res gestae, which he can
easily deny if it were not true, which he did in this case.

In People vs. Tulagan,
143 SCRA 107, 116-117, We declared that a statement
allegedly made by one of the accused to Natalia Macaraeg that “we killed him” (referring to
himself and his co-accused) and which Natalia
repeated in her testimony in open court was merely an “oral
confession” and not part of the res gestae.

Moreover, even assuming that the testimony of the wife of the
victim on the alleged statement of the accused-appellant is hearsay, the latter
is barred from questioning its admission due to his failure to object thereto
at the time the testimony was given.  The transcript of the stenographic notes of the testimony of
Rosalina Magat vda. de Bolima, wife of the victim,
clearly shows the absence of an objection, thus:

x   x   x

“Atty. Villano:

]You said when you turned your back after
taking a few steps and when you turned your back, they were no longer there,
will you please tell what happened after that?

A  :   And
that was when they left it was 11:30 and when he came back 11:35 he was already
knocking (referring to the person of the accused) telling me while he was
knocking: “Mare, mare, nabaril ko si pare, hindi
ko sinadya.”

Q :  By
the way Mrs. Witness, who is that “pare” you are telling us?

A :   Troping, sir (as the witness pointed to).

Q :  The
same Troping here, is your “kumpare“?

A :   Yes,
sir.”

(TSN,
April 18, 1989, p. 13).

The seventh circumstance mentioned by the court below is haphazardly
formulated.  Something is wrong with the
opening clause reading:

“The testimony of the accused that he does not own the gun and
that it is but the accused who owns the same and in fact
the latter even tucked it.”

The words but the accused
should have been the deceased.

Two more basic issues are left for determination, to wit: whether
the prosecution has established beyond reasonable doubt that the accused is
liable for illegal possession of firearms and whether the killing was attended
by the qualifying circumstances of treachery and evident premeditation as
alleged in the information.

Our painstaking review of the records and the evidence fails to
disclose that the prosecution presented any evidence to prove that the
accused-appellant was not authorized to possess the firearm alleged in the
information.  And, contrary to the
finding of the trial court, there was no sufficient evidence to prove the
presence of treachery.

It must be stated, however, that had illegal possession of
firearms been duly proven as alleged, it would not have mattered whether the
killing was simple homicide or murder since Section 1 of P D. No. 1866
expressly provides that:

x   x   x

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

which penalty,
however, had been automatically reduced to reclusion perpetua
in view of the abolition of the death penalty.^[18]

The issue concerning the failure of the prosecution to prove that
he had no authority to possess the firearm has not been raised in this
appeal.  Interestingly, accused-appellant
raised it in his motion to reconsider the decision of the trial court.^[19]
In its resolution denying the motion, the trial court admitted, in effect, that
the prosecution did not offer any evidence to prove that the accused-appellant
had no license to possess or carry the firearm in question; it however, threw
the burden on the accused-appellant to prove that he has that authority.  Thus, it ruled:

“Where accused relies as a matter of defense on an exception
in a statute which is not in the enacting clause by which the offense is
described and forbidden, he has the burden of proving that he is within the
exception.

‘Where the subject matter of a negative averment in the
information, or a fact relied upon by defendant as a justification or excuse,
relates to him personally or otherwise lies peculiarly within his knowledge,
the general rule is that the burden of proof of such averment or fact is on
him’ (16 C.J. sec. 998, p. 530).  An illustrative
case of this rule may be found in prosecution for exercising a trade or
profession, or doing other acts, without a license.  In such cases, it would greatly inconvenience
the prosecution to prove that the defendant had no license, whereas the defendant
could easily prove that he did have one.

In cases of illegal possession of firearms, the burden of proof as
to the negative averments in the information to the effect that the accused
possesses the firearms without the corresponding license is on the
defense.  It is the accused who is called
upon to prove that he possesses the license. 
In other words, the fact relied upon by the accused as a justification
or excuse being one that is related to him personally or otherwise within his
peculiar knowledge, ‘the general rule is that the burden of proof as to such
averment or fact is on the accused’ (Francisco, Handbook on Evidence, pp.
379-380, 1984 Ed., citing cases).”^[20]

Section 1 of P. D. No. 1866 reads:

“SECTION 1. Unlawful Manufacture,
Sale Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used
or Intended to be Used in the Manufacture
of Firearms or Ammunition. – The penalty of
reclusion temporal in its maximum period to reclusion perpetua
shall be imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the manufacture of
any firearm or ammunition.

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

x   x   x

The penalty of prision mayor shall be
imposed upon any person who shall carry any licensed firearm outside his
residence without legal authority therefor.”

Undoubtedly, there is unlawful possession under the foregoing
section if one does not have the license to possess the firearm.  Even if he has the license, he cannot carry
the firearm outside his residence without legal authority therefor.  It follows then that the lack or absence of a
license is an essential ingredient of the offense which the prosecution must
allege and prove.  Every element of the
crime must be alleged and proved.^[21]

In People vs. Pajenado,
L-27680-81, 27 February 1970,^[22] We said:

“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 cannot 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.  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).”

There being no proof that accused-appellant had no license to
possess the firearm in question, he could not be convicted for illegal
possession of a firearm.  The trial court
then committed an error in holding the accused-appellant guilty thereof.  However, as above-stated, the
accused-appellant did not touch this issue in his Brief.  Be that as it may, the rule is well-settled
that an appeal in a criminal case opens the whole case for review and this
includes the review of the penalty, indemnity and the damages involved.^[23]

In People vs. Borbano,
76 Phil. 702, 708, We ruled:

“x x x In
a criminal case, an appeal to the Supreme Court throws the whole case open for
review, and it becomes the duty of the Court to correct such errors as may be
found in the judgment appealed from, whether they are made
the subjects of assignments error or not.  (People vs. Ofindo,
47 Phil. 1).”

Accordingly, it is proper for this Court to consider in favor of
the accused-appellant the absence of proof of illegal possession of a firearm.  But, may accused-appellant be convicted for
murder under the information for which he was tried?  The answer is in the affirmative since, as We stated earlier, the information sufficiently alleges the
commission of murder; hence, a conviction for murder, if warranted, by
the facts, can be had under the information.^[24]
If murder is not proved by reason of the absence of any qualifying
circumstance, conviction for the lesser crime of homicide is also proper.^[25]

We are also unable to agree with the trial court that the
qualifying circumstance of treachery was duly established.

There is treachery when the offender commits any of the crimes
against persons employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might make, which
means that no opportunity was given to the latter to do so.^[26]
It cannot be presumed; it must be proved by clear and convincing evidence or as
conclusively as the killing itself.^[27]
For, as held in U.S. vs. Perdon^[28]
where no particulars are known as to the manner in which the aggression was
made or how the act which resulted in the death of the victim began and
developed, it can in no way be established from mere suppositions, drawn from
circumstances prior to the very moment of the aggression, that an accused
perpetrated the killing with treachery.^[29]
Accordingly, treachery cannot be considered where the lone witness did not see
the commencement of the assault.^[30]

In People vs. Manalo,
supra, We ruled:

“The fact that the fatal wounds were found at the back of the
deceased does not, by itself, compel a finding of treachery.  Such a finding must be based on some positive
proof and not merely an inference drawn more or less logically from
hypothetical facts.  This Court has ruled
that the suddenness of an attack is not, of itself, enough to constitute
treachery when the method of the killing does not positively show that the
assailant thereby knowingly intended to ensure the accomplishment of his
purpose without risk to himself from any defense which the victim might put
up.  In other words, to sustain a finding
of treachery, the means, method or form of attack must be shown to have been
deliberately adopted by the appellant.” (citing People vs. Carsano, 95 SCRA 146; People vs. Cabiling,
74 SCRA 185; People vs. Satone, 74 SCRA 106; People
vs. Bongo, 55 SCRA 547).

In People vs. Ablao,
183 SCRA 658, 669, We said:

“There being no direct evidence on how the shooting was
committed, treachery cannot be appreciated.”

In the instant case, no witness who could have seen how the
deceased was shot was presented.  Absent
the quantum of evidence required to prove it, treachery cannot be considered
against the accused-appellant.

Accordingly, accused-appellant could only be liable for HOMICIDE,
which is punished by RECLUSION TEMPORAL. 
It shall be imposed in its medium period, whose duration is from 14
years, 8 months and 1 day to 17 years and 4 months, since neither aggravating
nor mitigating circumstances had been proved.^[31]

 The Indeterminate Sentence
Law benefits the accused-appellant. 
Applying it in this case, he may be sentenced to suffer an indeterminate
penalty of eight years and one day of prision mayor,
as minimum, to fourteen years, eight months and one day of reclusion temporal
as maximum.

The civil indemnity imposed by the trial court should be
increased from P30,000.00 to P50,000.00 conformably
with our ruling in People vs. Sison, G. R. No. 86455,
14 September 1990 and in People vs. Sazon, G. R. No.
89684, 18 September 1990.

WHEREFORE, judgment is hereby rendered MODIFYING the
subject decision of the trial court, and as Modified, FINDING the
accused-appellant EUTROPIO TIOZON Y ACID guilty beyond all reasonable doubt of
the crime of HOMICIDE, as defined and penalized under Article 249 of the
Revised Penal Code, for the killing of Leonardo Bolima,
and applying the Indeterminate Sentence Law, he is hereby SENTENCED to suffer
an indeterminate penalty of imprisonment ranging from EIGHT YEARS AND ONE DAY
of prision mayor, as Minimum, to
FOURTEEN YEARS, EIGHT MONTHS AND ONE DAY of reclusion temporal as
Maximum, with the accessory penalties therefor, to
INDEMNIFY the heirs of Leonardo Bolima in the sum of
FIFTY THOUSAND PESOS (P50,000.00), without subsidiary imprisonment in case of
insolvency, and to REIMBURSE said heirs in the sum of FIFTY THOUSAND PESOS
(P50,000.00) as reasonable expenses for the wake and burial of Leonardo Bolima.

Accused-appellant shall be given full credit for the period of
his preventive imprisonment.

Costs against accused-appellant.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr.,
Feliciano, and Bidin,
JJ., concur.

---

^[1] Original records, 1.

^[2] Original records, 2.

^[3] Id.,
71-78.

^[4] Id.,
82-86.

^[5] Id.,
87-88.

^[6] Id., 89.

^[7] Original records, 75-78.

^[8]
Brief for Appellant, 4; Rollo, 43.

^[9] TSN, April 18, 1989, 13.

^[10]
Brief for Appellant, 5-11; Rollo, 44-50.

^[11] Brief for Appellee, 6-13.

^[12] 24 SCRA 163, 171.

^[13] Citing People vs. Bacolod, 89 Phil. 621; People vs. Capurro,
7 Phil. 24; People vs. Alvarez, 45 Phil. 472.

^[14] Sec. 5, Rule 133, Revised Rules of Court; People vs. Alcantara, 163 SCRA 783, 786.

^[15] U.S. vs.
Villos, 6 Phil. 510, 512; People vs. Subano, 73 Phil. 692, 693; People vs. Colinares, 163 SCRA 313, 320.

^[16] People vs. Trinidad, 162 SCRA 714, 723, citing People vs. Ludday,
61 Phil. 216; People vs. Cotante, 12 SCRA 653.  See also People vs. Tolentino, 166 SCRA 469, 482.

^[17]
Sec. 30, Rule 130, Revised Rules of Court.

^[18] Section 19(1), Article III, 1987 Constitution.

^[19]
Original Records, 82-86.

^[20] Original Records, 87.

^[21] People vs. Sy Gesiong,
60 Phil. 614.

^[22]
31 SCRA 812, 816-817.

^[23]
IV Moran, Comments on the Rules of Court, 1980 Ed., 348.

^[24] Section 4, Rule 120, Revised Rules of Court.

^[25]
U.S. vs. Macalintal, et al., 2 Phil. 448; U.S.
vs. Idica, 3 Phil. 313; U.S. vs. Sadlucap, 3 Phil. 437; U.S. vs. Asilo,
4 Phil. 175; U.S. vs. Andrada, 5 Phil. 464.

^[26]
Article 14, par. 16, Revised Penal Code; People vs. Gimongala,
170 SCRA 632; People vs. Bustos, 171 SCRA 243;
People vs. Samson, 176 SCRA 710; People vs. Manzanares,
177 SCRA 427.

^[27] People vs. Manalo, 148 SCRA 98;
People vs. Gaddi, 170 SCRA 549.

^[28] 4 Phil. 141.

^[29]
See also People vs. Ablao, 183 SCRA 658.

^[30] People vs. Durante, 53 Phil. 363;
People vs. Cananowa, 92 SCRA 427; People vs.
Repe, et al., 175 SCRA 422; People vs. Villapando, 178 SCRA 341.

^[31] Paragraph 1, Article 64, Revised Penal Code.