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People v. Jayson, 282 SCRA 166
People v. Jayson, 282 SCRA 166
SYNOPSIS
The penalty for illegal possession of rearm reduced under R.A. No. 8294, amending
P.D. No. 1866 cannot be applied in this case in view of the proviso that the lighter penalty
does not apply to cases where another crime has been committed. Nor can illegal
possession of rearm be appreciated as a mere aggravating circumstance because
although the gun seized was used in the commission of a crime, this case concern solely
the charge of illegal possession of rearm. The criminal case for homicide is not here
under consideration. Hence, the decision of the Court of Appeals is affirmed. ATCEIc
SYLLABUS
DECISION
Accused-appellant Wenceslao Jayson was charged with violation of P.D. No. 1866 in
the Regional Trial Court of Davao City. The amended information alleged —
That on or about March 16, 1991, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-mentioned accused
wilfully, unlawfully and feloniously with intent to possess, had in his possession
and under his custody one (1) .38 caliber revolver (Paltik), with Serial Number
91955 and four (4) live ammunitions inside the chamber of said revolver, without
first securing the necessary license to possess the same.
That the same .38 caliber revolver was used by the accused in killing
Nelson Jordan on March 16, 1991. cda
Contrary to law.
The prosecution evidence shows that in the evening of March 16, 1991, accused-
appellant, then a bouncer at the "Ihaw-Ihaw" nightclub on Bonifacio Street, Davao City, shot
one Nelson Jordan. He was arrested after he had been pointed by eyewitnesses as the
gunman. Recovered from him was a .38 caliber revolver with serial number 91955, 1 four
live bullets, and one empty shell. 2 The rearm and ammunition were covered by a
memorandum receipt and mission order issued by Major Francisco Arquillano, Deputy
Commander of the Civil-Military Operation and CAFGU Affairs of the Davao Metropolitan
District Command. 3 The mission order authorized accused-appellant to carry the said
rearm and twelve rounds of ammunition "[t]o intensify intel[ligence] coverage" and was
for a three-month duration (from February 8, 1991 to May 8, 1991), subject to the
following restrictions: 4
VII. The carrying of firearms is prohibited in places where people gather for
political, religious, social, educational, and recreational purposes, such as
churches or chapels, carnival grounds or fans, nightclubs, cabarets, dance
halls, dancing places during fiestas and other celebrations, bars, liquor
drinking places, theaters or movies, cockpits, race tracks and the like,
except when the personnel concerned is on official mission in such places
for which he was authorized to carry firearms.
In the case at bar there was a shooting. The policemen summoned to the scene of
the crime found the victim. Accused-appellant was pointed to them as the assailant only
moments after the shooting. In fact accused-appellant had not gone very far (only ten
meters away from the "Ihaw-Ihaw"), although he was then eeing. The arresting o cers
thus acted on the basis of personal knowledge of the death of the victim and of facts
indicating that accused-appellant was the assailant. llcd
In People v. Lua, 1 5 a buy-bust operation was conducted against the accused. After
accused had gone inside his house and returned with the three tea bags of marijuana and
received the marked money, the designated poseur-buyer gave the signal to his fellow
police o cers who closed in and arrested the accused. In the course of the arrest, a police
o cer noticed something bulging at accused's waistline, which turned out to be an
unlicensed .38 caliber "paltik" with two live bullets. Accused was charged with illegal
possession of firearm. The search was held to be a valid incident of a lawful arrest.
II.
We now come to the main question of accused-appellant's liability for illegal
possession of rearm. There is no dispute that accused-appellant was in possession of
the gun in this case. His defense is that the gun is covered by a memorandum receipt and
mission order issued by Major Francisco Arquillano, then Deputy Commander of the Civil-
Military Operation and CAFGU Affairs of the Davao Metropolitan District Command.
The issuance of mission orders is governed by Memorandum Circular No. 8 dated
October 16, 1986 of the then Ministry of Justice, which in pertinent part states: 1 6
. . . It is unlawful for any person or o ce to issue a mission order
authorizing the carrying of firearms by any person unless the following conditions
are met:
1. That the AFP o cer is authorized by the law to issue the mission
order;
2. That the recipient or addressee of the mission order is also
authorized by the law to have a mission order, i.e., he must be an organic member
of the command/unit of the AFP o cer issuing the mission order. If mission
orders are issued to civilians (not members of the uniformed service), they must
be civilian agents included in the regular plantilla of the government agency
involved in law enforcement and are receiving regular compensation for the
services they are rendering. (In this case, the agency head or o cials so
designated by the law shall issue the mission order.). . .
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As the Court of Appeals held, however, Major Arquillano, who had issued the mission
order in question, was not authorized to do the same. Neither was accused-appellant
qualified to have a mission order.
Admittedly, Major Arquillano was not authorized to issue mission orders to civilian
agents of the AFP as he was not any of the following o cers mentioned in the
Implementing Rules and Regulations of P.D. No. 1866, §5(a), to wit: 1 7
(1) The Minister of National Defense and such other Ministry o cials
duly designated by him;
(2) The Chief of Staff; AFP;
(3) Chief of the General/Special/Technical and Personal Staffs of
GHQ AFP;
(4) Commanders of the AFP Major Services including the Chiefs of
their respective General/Special/Technical and Personal Staffs;
(5) Commanders and Chiefs of Staffs of AFPWSSU and major
commands/units of the AFP and the Major Services;
(6) Commanders of battalions and higher units and their equivalent in
the Philippine Air Force and Philippine Navy;
(7) Commanders of AFP intelligence units from GHQ AFP down to
regional command levels;
(8) Provincial Commanders, METRODISCOM Commanders, company
commanders and their equivalent in the Philippine Air Force and Philippine Navy;
and
Major Arquillano claimed, however, that Colonel Franco Calida, had authorized him
(Major Arquillano) to exercise this function so that people would not be "swarming [in
Calida's] o ce." 1 8 As the appellate court well stated, full faith and credit cannot be given
to such bare assertion. Not only was there no written delegation of authority to Major
Arquillano, it is even doubtful whether Col. Calida, who, as commander of the unit had
authority to issue mission orders, could delegate this authority to his deputy.
Nor was accused-appellant quali ed to be issued a mission order because he was a
mere reserve of the Citizen Forces Geographical Unit (CAFGU) without regular monthly
compensation. In fact he worked as a "bouncer" in a nightclub, and it was as a "bouncer"
that he used the gun seized from him.
Even assuming that the issuance to accused-appellant of the mission order was
valid, it is clear that, in carrying the rearm inside the nightclub where he was working as a
"bouncer," accused-appellant violated the restrictions in the mission order. These
restrictions prohibited him from carrying rearms in places where people converge unless
on o cial mission. Accused-appellant's claim that he had been told by Major Arquillano
that he could carry the rearm anywhere in Davao City 1 9 was atly denied by Major
Arquillano who testi ed that precisely he called accused-appellant's attention to the
restrictions. 2 0
III.
It remains for us to determine whether the provisions of the recently enacted R.A.
No. 8294, amending P.D. No. 1866, 2 4 can be applied to this case on the theory that it is
more favorable to accused-appellant. 2 5 R.A. No. 8294, provides in pertinent part:
§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 prision
correccional in its maximum period and a ne of not less than Fifteen thousand
pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered rearm, such
as rim re handgun, .380 or .32 and other rearm of similar repower, part of
rearm, ammunition, or machinery, tool or instrument used or intended to be used
in the manufacture of any rearm or ammunition: Provided, That no other crime
was committed.
xxx xxx xxx
If homicide or murder is committed with the use of an unlicensed rearm,
such use of an unlicensed rearm shall be considered as an aggravating
circumstance. (Emphasis added)
Apparently, even though the penalty for illegal possession of rearm has been
reduced in the new law, the latter cannot be applied in this case so as to favor accused-
appellant in view of the proviso in §1 that the rst paragraph, providing for lighter penalty,
does not apply to cases where another crime has been committed. Nor can the third
paragraph be applied by considering the illegal possession of rearm as a mere
aggravating circumstance because, although the gun seized was used in the commission
of a crime, this case concerns solely the charge of illegal possession of rearm. The
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criminal case for homicide is not before us for consideration.
Consequently, this case must be decided in accordance with the ruling in People v.
Quijada, 2 6 that a person who kills another with the use of an unlicensed rearm is guilty of
homicide or murder as the case may be under the Revised Penal Code and aggravated
illegal possession of firearm under P.D. No. 1866, §1, par. 2. LibLex
Footnotes
1. Exh. A.
2. Exh. B.
8. Id., p. 1.
9. Id., pp. 68-72. Per Judge Augusto V. Breva.
10. Per Justice Delilah Vidallon-Magtolis and concurred in by Justices Gloria C. Paras and
Quirino D. Abad Santos, Jr.
11. TSN, pp. 2-3, 9-10, Nov. 11, 1992.
12. 205 SCRA 774 (1992).
13. 219 SCRA 756 (1993).
25. REVISED PENAL CODE, Art. 22 provides: "Penal laws shall have a retroactive effect
insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as
this term is defined in Rule 5 of Article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is
serving the same." This provision has been applied to special offenses. See People v.
Simon, 234 SCRA 555 (1994); Gonzales v. Court of Appeals, G.R. No. 95523, August 18,
1997 (R.A. No. 8294 was retroactively applied to reduce the sentence of petitioner).
26. 259 SCRA 191 (1996).