PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROLANDO DE GRACIA, CHITO HENSON AND JOHN DOES, ACCUSED.  ROLANDO DE GRACIA, ACCUSED-APPELLANT.

The incidents involved in this case took place at the height of
the coup d’etat staged in December,
1989 by ultra-rightist elements headed by the Reform the Armed Forces
Movement-Soldiers of the Filipino People (RAM-SFP) against the Government. At that time, various government
establishments and military camps in Metro Manila were being bombarded by the
rightist group with their “tora-tora”
planes. At around midnight of
November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupied
Villamor Air Base, while the Scout Rangers took over the Headquarters of the
Philippine Army, the Army Operations Center, and Channel 4, the government
television station. Also, some elements
of the Philippine Army coming from Fort Magsaysay occupied the Greenhills
Shopping Center in San Juan, Metro Manila.^[1]

Accused-appellant Rolando de Gracia was charged in two separate
informations for illegal possession of ammunition and explosives in furtherance
of rebellion, and for attempted homicide, docketed as Criminal Cases Nos. Q-90-­11755
and Q-90-11756, respectively, which were tried jointly by the Regional Trial
Court of Quezon City, Branch 103.

In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson
and several John Does whose true names and identities have not as yet been
ascertained, were charged with the crime of illegal possession of ammunition
and explosives in furtherance of rebellion, penalized under Section 1,
paragraph 3, of Presidential Decree No. 1866, allegedly committed as follows:

“That on or about the 5th day of DECEMBER, 1989, in QUEZON
CITY, METRO MANILA, PHILIPPINES, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and
mutually helping one another, and without authority of law, did then and there
willfully, unlawfully, feloniously and knowingly have in their possession,
custody and control, the following to wit:

Five (5) bundles of C-4 or dynamites

Six (6) cartoons of M-16 ammunition at
20 each

One hundred (100) bottles of MOLOTOV
bombs

without first securing the necessary
license and/or permit to possess the same from the proper authorities, and
armed with said dynamites, ammunition and explosives and pursuant to their
conspiracy heretofore agreed upon by them and prompted by common designs, come
to an agreement and decision to commit the crime of rebellion, by then and there participating therein and
publicly taking arms against the duly constituted authorities, for the purpose
of overthrowing the Government of the Republic of the Philippines, disrupting
and jeopardizing its activities and removing from its allegiance the territory
of the Philippines or parts thereof.”^[2]

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson,
Lamberto Bicus, Rodolfo Tor and several John Does were charged with attempted
homicide allegedly committed on December 1, 1989 in Quezon City upon the person
of Crispin Sagario who was shot and hit on the right thigh.

Appellant was convicted for illegal possession of firearms in
furtherance of rebellion, but was acquitted of attempted homicide.

During the arraignment, appellant pleaded not guilty to both
charges. However, he admitted that he
is not authorized to possess any firearms, ammunition and/or explosive.^[3]
The parties likewise stipulated that there was a rebellion during the period
from November 30 up to December 9, 1989.^[4]

The records show that in the early morning of December 1, 1989,
Maj. Efren Soria of the Intelligence Division, National Capital Region Defense
Command, was on board a brown Toyota car conducting a surveillance of the
Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City,
together with his team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones,
S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on
the night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to
an intelligence report received by the division that said establishment was
being occupied by elements of the RAM-SFP as a communication command post.

Sgt. Crispin Sagario, the driver of the car, parked the vehicle
around ten to fifteen meters away from the Eurocar building near P. Tuazon
Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his
surveillance on foot. A crowd was then
gathered near the Eurocar office watching the on-going bombardment near Camp
Aguinaldo. After a while, a group of
five men disengaged themselves from the crowd and walked towards the car of the
surveillance team. At that moment, Maj.
Soria, who was then seated in front, saw the approaching group and immediately
ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then only six
meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in the
wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because they
sought cover inside the car and they were afraid that civilians or bystanders
might be caught in the cross-fire.

As a consequence, at around 6:30 A.M. of December 5, 1989, a
searching team composed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao,
Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry
Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six
cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of
different calibers, and “molotov”
bombs inside one of the rooms belonging to a certain Col. Matillano
which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter
the Eurocar building, saw appellant De Gracia inside the office of Col.
Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present
inside the room. A uniform with the
nametag of Col. Matillano was also
found. As a result of the raid, the
team arrested appellant, as well
as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar
building. They were then made to sign
an inventory, written in Tagalog, of the explosives and ammunition confiscated
by the raiding team. No search warrant
was secured by the raiding team because, according to them, at that time there
was so much disorder considering that the nearby Camp Aguinaldo was being
mopped up by the rebel forces and there was simultaneous firing within the
vicinity of the Eurocar office, aside from the fact that the courts were
consequently closed. The group was able
to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant is supposedly a
“boy” therein.

Appellant Rolando de Gracia gave another version of the
incident. First, he claims that on
November 30, 1989, he was in Antipolo to help in the birthday party of Col.
Matillano. He denies that he was at the
Eurocar Sales Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar
Sales Office on December 5, 1989, he was inside his house, a small nipa hut
which is adjacent to the building. According to him, he was tasked to guard the office of Col. Matillano
which is located at the right side of the building. He denies, however, that he was inside the room of Col. Matillano
when the raiding team barged in and that he had explosives in his
possession. He testified that when the
military raided the office, he was ordered to get out of his house and made to
lie on the ground face down, together with “Obet” and
“Dong” who were janitors of the building. He avers that he does not know anything about the explosives and
insists that when they were asked to stand up, the explosives were already
there.

Appellant stated that he visited Col. Matillano in 1987 at the
stockade of the Philippine Constabulary-Integrated National Police (PC-INP),
and that he knew Matillano was detained because of the latter’s involvement in
the 1987 coup d’etat. In July,
1989, appellant again went to see Matillano because he had no job. Col. Matillano then told him that he could
stay in the PC-INP stockade and do the marketing for them. From that time until his arrest at the
Eurocar office, appellant worked for Matillano.

De Gracia believes that
the prosecution witnesses were moved to testify against him because “bata
raw ako ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya
sabi nila ito na lang bata niya ang ipitin natin.”

On February 22, 1991, the trial court rendered judgment^[5]
acquitting appellant Rolando de Gracia of attempted homicide, but found him
guilty beyond reasonable doubt of the offense of illegal possession of firearms
in furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a recommendation that
“(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying
orders and pursuant to the spirit contained in the 2nd paragraph of Art. 135,
R.P.C., the court recommends that Rolando de Gracia be extended executive
clemency after serving a jail term of five (5) years of good behavior.”

That judgment of conviction is now challenged before us in this
appeal.

Appellant principally contends that he cannot be held guilty of
illegal possession of firearms for the reason that he did not have either
physical or constructive possession thereof considering that he had no intent
to possess the same; he is neither the owner nor a tenant of the building where
the ammunition and explosives were found; he was merely employed by Col.
Matillano as an errand boy; he was guarding the explosives for and in behalf of
Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which is
necessary before one can be convicted under Presidential Decree No. 1866, was
not present in the case at bar.

Presidential Decree No.
1866 provides as follows:

“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 firearms,
part of firearms, 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.

If the violation of this Section is in furtherance of, or incident to,
or in connection with the crimes of rebellion, insurrection or subversion, the
penalty of death shall be imposed.”

Presidential Decree No.
1866 was passed because of an upsurge of crimes vitally affecting public order
and safety due to the proliferation of illegally possessed and manufactured
firearms, ammunition and explosives, and which criminal acts have resulted in
loss of human lives, damage to property and destruction of valuable resources
of the country. The series of coup
d’etats unleashed in the country
during the first few years of the transitional government under then President
Corazon P. Aquino attest to the ever-growing importance of laws such as
Presidential Decree No. 1866 which seek to nip in the bud and preempt the
commission of any act or acts which tend to disturb public peace and order.

I. The first issue to be resolved is whether or
not intent to possess is an essential element of the offense punishable under
Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend
to illegally possess firearms and ammunition.

The rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is merely possession which includes not only
actual physical possession but also constructive possession or the subjection
of the thing to one’s control and management.^[6] This
has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public
security, which the law penalizes exist whether the unlicensed holder of a
prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the
possession can have no bearing whatsoever.^[7]

But is the mere fact of physical or constructive possession
sufficient to convict a person for unlawful possession of firearms or must
there be an intent to possess to constitute a violation of the law? This query assumes significance since the
offense of illegal possession of firearms is a malum prohibitum punished by a special law,^[8] in which case good faith and absence
of criminal intent are not valid defenses.^[9]

When the crime is punished by a special law, as a rule, intent to
commit the crime is not necessary. It is
sufficient that the offender has the intent to perpetrate the act prohibited by
the special law. Intent to commit the
crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended
to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the
crime itself. In the first (intent to
commit the crime), there must be criminal intent; in the second (intent to
perpetrate the act) it is enough that the prohibited act is done freely and
consciously.^[10]

In the present case, a distinction should be made between
criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict
a person for illegal possession of a firearm, it must still be shown that there
was animus possidendi or an intent to possess on the part
of the accused.^[11]
Such intent to possess is, however, without regard to any other criminal or
felonious intent which the accused may have harbored in possessing the
firearm. Criminal intent here refers to
the intention of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in
convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty
of a violation of the decree, it is sufficient that the accused had no
authority or license to possess a firearm, and that he intended to possess the
same, even if such possession was made in good faith and without criminal
intent.

Concomitantly, a
temporary, incidental, casual, or harmless possession or control of a firearm
cannot be considered a violation of a statute prohibiting the possession of
this kind of weapon,^[12] such as Presidential Decree No.
1866. Thus, although there is physical
or constructive possession, for as long as the animus possidendi is
absent, there is no offense
committed.

Coming now to the case before us, there is no doubt in
our minds that appellant De Gracia is indeed guilty of having intentionally
possessed several firearms, explosives and ammunition without the requisite
license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he
was the first one to enter the Eurocar Sales Office when the military
operatives raided the same, and he saw De Gracia standing in the room and
holding the several explosives marked in evidence as Exhibits D to D-4.^[13]
At first, appellant denied any knowledge
about the explosives. Then, he
alternatively contended that his act of guarding the explosives for and in
behalf of Col. Matillano does not constitute illegal possession thereof because
there was no intent on his part to possess the same, since he was merely
employed as an errand boy of Col. Matillano. His pretension of impersonal or indifferent material possession
does not and cannot inspire credence.

Animus possidendi is a state of mind which may
be determined on a case to case basis, taking into consideration the
prior and coetaneous acts of the accused and the surrounding
circumstances. What exists in the realm
of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a former
soldier, having served with the Philippine Constabulary prior to his separation
from the service for going on absence without leave (AWOL).^[14] We do not hesitate, therefore, to
believe and conclude that he is familiar with and knowledgeable about the
dynamites, “molotov” bombs,
and various kinds of ammunition which were confiscated by the military from his
possession. As a former soldier, it
would be absurd for him not to know anything about the dangerous uses and power
of these weapons. A fortiori, he cannot feign ignorance on the import of
having in his possession such a large
quantity of explosives and ammunition. Furthermore, the place where the explosives were found is not a military
camp or office, nor one where such items can ordinarily but lawfully be stored,
as in a gun store, an arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious
if he finds articles of this nature in a place intended to carry out the
business of selling cars and which has nothing to do at all, directly or
indirectly, with the trade of firearms and ammunition.

On the basis of the
foregoing disquisition, it is apparent, and we so hold, that appellant De
Gracia actually intended to possess the articles confiscated from his person.

II. The next question that may be asked is
whether or not there was a valid search and seizure in this case. While the matter has not been squarely put
in issue, we deem it our bounden duty, in light of advertence thereto by the
parties, to delve into the legality of the warrantless search conducted by the
raiding team, considering the gravity of the offense for which herein appellant
stands to be convicted and the penalty sought to be imposed.

It is admitted that the
military operatives who raided the Eurocar Sales Office were not
armed with a search warrant at that time.^[15] The
raid was actually precipitated by intelligence reports that said office was
being used as headquarters by the RAM.^[16] Prior to the raid, there was a surveillance
conducted on the premises wherein the surveillance team was fired at by a group
of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof
refused to open the door despite requests for them to do so, thereby compelling
the former to break into the Office.^[17] The
Eurocar Sales Office is obviously not a gun store and it is definitely not an
armory or arsenal which are the usual depositories for explosives and
ammunition. It is primarily and solely
engaged in the sale of automobiles. The
presence of an unusual quantity of high-powered firearms and explosives could
not be justifiably or even colorably explained. In addition, there was general chaos and disorder at that time
because of simultaneous and intense firing within the vicinity of the office
and in the nearby Camp Aguinaldo which was under attack by rebel forces.^[18] The courts in the surrounding areas
were obviously closed and, for that matter, the building and houses therein
were deserted.

Under the foregoing circumstances, it is our considered opinion
that the instant case falls under one of the exceptions to the prohibition
against a warrantless search. In the
first place, the military operatives, taking into account the facts obtaining
in this case, had reasonable ground to believe that a crime was being
committed. There was consequently more
than sufficient probable cause to warrant their action. Furthermore, under the situation then
prevailing, the raiding team had no opportunity to apply for and secure a
search warrant from the courts. The
trial judge himself manifested that on December 5, 1989 when the raid was
conducted, his court was closed.^[19] Under such urgency and exigency of
the moment, a search warrant could lawfully be dispensed with.

The view that we here take is in consonance with our doctrinal
ruling which was amply explained in People
vs. Malmstedt^[20] and bears reiteration:

“While it is true that the NARCOM officers were not armed with
a search warrant when the search was made over the personal effects of accused,
however, under the circumstances of the case, there was sufficient probable
cause for said officers to believe that accused was then and there committing a
crime.

“Probable cause has been defined as such facts and
circumstances which would lead a reasonable, discreet and prudent man to
believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched. The required probable cause that will
justify a warrantless search and seizure is not determined by any fixed formula
but is resolved according to the facts of each case.

“Warrantless search of the personal effects of an accused has
been declared by this Court as valid, because of existence of probable cause,
where the smell of marijuana emanated from a plastic bag owned by the accused,
or where the accused was acting suspiciously, and attempted to flee.

“Aside from the persistent reports received by the NARCOM that
vehicles coming from Sagada were transporting marijuana and other prohibited
drugs, their Commanding Officer also received information that a Caucasian
coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the
Commanding Officer of NARCOM the very same morning that accused came down by
bus from Sagada on his way to Baguio City.

“When NARCOM received the information, a few hours before the
apprehension of herein accused, that a Caucasian travelling from Sagada to
Baguio City was carrying with him prohibited drugs, there was no time to obtain
a search warrant. In the Tangliben
case, the police authorities conducted a surveillance at the Victory Liner
Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against persons
engaged in the traffic of dangerous drugs, based on information supplied by
some informers. Accused Tangliben who
was acting suspiciously and pointed out by an informer was apprehended and
searched by the police authorities. It
was held that when faced with on­-the-spot information, the police officers had
to act quickly and there was no time to secure a search warrant.

“It must be observed that, at first, the NARCOM officers
merely conducted a routine check of the bus (where accused was riding) and the
passengers therein, and no extensive search was initially made. It was only when one of the officers noticed
a bulge on the waist of accused, during the course of the inspection, that
accused was required to present his passport. The failure of accused to present his identification papers, when
ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to
hide from the authorities, to readily present his identification papers when
required to do so?

“The receipt of information by NARCOM that a Caucasian coming
from Sagada had prohibited drugs in his possession, plus the suspicious failure
of the accused to produce his passport, taken together as a whole, led the
NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM
officers in requiring the accused to open his pouch bag and in opening one of
the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) teddy bears with hashish stuffed inside them,
were prompted by accused’s own attempt to hide his identity by refusing to
present his passport, and by the information received by the NARCOM that a Caucasian
coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability
and facility to act accordingly, including, to search even without warrant, in
the light of such circumstances, would be to sanction impotence and ineffectiveness
in law enforcement, to the detriment of society.”

In addition, we find the principle enunciated in Umil, et al.
vs. Ramos, et al.,^[21]
applicable, by analogy, to the present case:

“The arrest of persons involved in the rebellion whether as
its fighting armed elements, or for committing non-violent acts but in
furtherance of the rebellion, is more
an act of capturing them in the course of an armed conflict, to quell the rebellion,
than for the purpose of immediately prosecuting them in court for a statutory
offense. The arrest, therefore, need
not follow the usual procedure in the prosecution of offenses which requires
the determination by a judge of the existence of probable cause before the
issuance of a judicial warrant of arrest and the granting of bail if the
offense is bailable. Obviously the
absence of a judicial warrant is no legal impediment to arresting or capturing
persons committing overt acts of violence against government forces, or any
other milder acts but really in pursuance of the rebellious movement. The arrest or capture is thus impelled by
the exigencies of the situation that involves the very survival of society and
its government and duly constituted authorities. If killing and other acts of violence against the rebels find
justification in the exigencies
of armed hostilities which (are) of the essence of waging a rebellion or
insurrection, most assuredly so in case of invasion, merely seizing their
persons and detaining them while any of these contigencies continues cannot be
less justified.”

III. As earlier stated, it was stipulated and admitted by both parties that
from November 30, 1989 up to and until December 9, 1989, there was a
rebellion. Ergo, our next inquiry is
whether or not appellant’s possession of the firearms, explosives and
ammunition seized and recovered from him was for the purpose and in furtherance
of rebellion.

The trial court found accused guilty of illegal possession of
firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of
the Revised Penal Code which states that “any person merely participating
or executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period.” The court below held that appellant De
Gracia, who had been servicing the personal needs of Col. Matillano (whose
active armed opposition against the Government, particularly at the Camelot
Hotel, was well known), is guilty of the act of guarding the explosives and “molotov” bombs for
and in behalf of the latter. We accept
this finding of the lower court.

The above provision of the law was, however, erroneously and
improperly used by the court below as a
basis in determining the degree of liability of appellant and the
penalty to be imposed on him. It must
be made clear that appellant is charged with the qualified offense of illegal
possession of firearms in furtherance of rebellion under Presidential Decree
No. 1866 which, in law, is distinct from the crime of rebellion punished under
Articles 134 and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses
with discrete penalties. The Revised
Penal Code treats rebellion as a crime apart from murder, homicide, arson, or
other offenses, such as illegal possession of firearms, that might conceivably
be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of
illegal possession of firearms committed in the course or as part of a rebellion.^[22]

As a matter of fact, in one case involving the constitutionality
of Section 1 of Presidential Decree No. 1866, the Court has explained that said
provision of the law will not be invalidated by the mere fact that the same act
is penalized under two different statutes with different penalties, even if
considered highly advantageous to the prosecution and onerous to the accused.^[23]
It follows that, subject to the presence of the requisite elements in each
case, unlawful possession of an unlicensed firearm in furtherance of rebellion
may give rise to separate prosecutions for a violation of Section 1 of
Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of
the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an
offense punished by a special law while the second is a felony punished by the
Revised Penal Code,^[24] with
variant elements.

It was a legal malapropism for the lower court to interject the
aforestated provision of the Revised Penal Code in this prosecution for a crime
under a special law. Consequently,
there is no basis for its recommendation for executive clemency in favor of
appellant De Gracia after he shall have served a jail term of five years with
good behavior. In any event, this is a
matter within the exclusive prerogative of the President whose decision thereon
should be insulated against any tenuous importunity.

Withal, we are duly convinced that the firearms, explosives and
ammunition confiscated from appellant De Gracia were illegally possessed by him
in furtherance of the rebellion then admittedly existing at that time. In the words of the court a quo:

“2. the nature
and quantity of the items – 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo
and 100 bottles of molotov bombs indicate that the reports received by the
military that the Eurocar Sales Building was being used by the rebels was not
without basis. Those items are clearly
not for one’s personal defense. They
are for offensive operations. De Gracia
admitted that per instruction of Col. Matillano he went down to Eurocar Sales
Building from Antipolo to stay guard there.

“His manifestation of innocence of those items and what he has
been guarding in that office is not credible for: (a) he was a former military personnel; (b) at the birthday party
of Col. Matillano on November 30, 1989 many soldiers and ex-soldiers were
present which self-evidently discloses that De Gracia, in the company of his
boss, was still very much at home and constantly in touch with soldiers and the
armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a military
coup d’etat; (c) it appears that he is the only person tasked with caretaking (sic)
there in the Matillano office, which shows that he is a highly trusted
right-hand man of Col. Matillano; and (d) as heretofore discussed, de Gracia
was earlier seen with some men who fired upon a car of the AFP intelligence
agents.”^[25]

Presidential Decree No. 1866 imposes the death penalty where the
illegal possession of firearms and ammunition is committed in furtherance of
rebellion. At the time the offense
charged in this case was committed under the governance of that law, the
imposition of the death penalty was proscribed by the Constitution. Consequently, appellant De Gracia could only
be sentenced to serve the penalty of reclusion perpetua which was
correctly meted out by the trial court, albeit with an erroneous recommendation
in connection therewith.

WHEREFORE, the impugned judgment of the trial
court is hereby AFFIRMED, but its
recommendation therein for executive clemency and the supposed basis thereof
are hereby DELETED, with costs against accused-appellant.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Puno, and Mendoza, JJ., concur.

^[1]
TSN, August 28, 1990, 40-42.

^[2]
Original Record, 1.

^[3]
Ibid., 52.

^[4]
Ibid., 97.

^[5]
Penned by Judge Jaime N. Salazar; Original Record, 146.

^[6]
People vs. Cruz, G.R. No. 76728, August 30, 1988, 165 SCRA 135; People vs.
Fajardo, et al., 123 Phil. 1348 (1966).

^[7]
People vs. Estoista, 93 Phil. 647 (1953).

^[8]
Veroy, et al. vs. Layague, etc., et al., G.R. No. 95630, June 18, 1992,
210 SCRA 97.

^[9]
People vs. Neri, G.R. No. L-37762, December 19, 1985, 140 SCRA 406.

^[10]
Reyes, The Revised Penal Code, Book
One, 1981, 12th ed., 53.

^[11]
People vs. Soyang, et al., 110
Phil. 565 (1960); People vs. Lubo, et al., 101 Phil. 179 (1957); U.S. vs. Samson, 16 Phil.
323 (1910).

^[12]
People vs. Estoista, supra, Fn. 7.

^[13]
TSN, November 22, 1990, 12.

^[14]
Ibid., December 6, 1990, 36.

^[15]
Ibid., November 22, 1990, 33.

^[16]
Ibid., October 2, 1990, 21-22.

^[17]
Ibid., id., November 22, 1990, 8.

^[18]
Ibid., id., October 2, 1990, 16-17.

^[19]
Ibid., November 29, 1990, 58.

^[20]
G.R. No. 91107, June 19, 1991, 198 SCRA 401.

^[21]
G.R. No. 81567, July 9, 1990, 187 SCRA 311.

^[22]
Baylosis, et al. vs. Chavez, Jr., et al., G.R. No. 95136, October 3,
1991, 202 SCRA 405.

^[23]
Misolas vs. Panga, etc. et al., G. R. No. 83341, January 30, 1990, 181
SCRA 648.

^[24]
Cf. People vs. Tiozon, G.R. No. 89823, June 19, 1991, 198 SCRA 368.

^[25]
Original Record, 149-150.