Summary Rulings on Illegal Possession of Firearm and COMELEC Gun Ban

Abenes vs CA
RTC Ruling
The RTC found that, as between the positive and categorical assertions of facts by the two policemen the witnesses for the prosecution
and the mere denial of the accused and his witnesses, the former must prevail over the latter; that the prosecution successfully proved that
the petitioner had no license or permit to carry the firearm through the officer-in-charge of the firearms and explosives office who testified
that, based on his records, the petitioner had not been issued a license, and whose testimony had not been impugned by the defense; and that the
testimonies of the accused and his two witnesses to the effect that while aboard their private vehicle and on their way to attend an election
campaign meeting, they simply stopped and allowed a complete stranger to hitch a ride who was carrying a clutch bag, left the same in the vehicle
when he alighted, and which later turned out to contain the subject firearm, were flimsy and unbelievable. The RTC ruled that the defense of
alibi or denial cannot prevail over the positive identification by eyewitnesses who have no improper motive to falsely testify against the
petitioner, especially where the policemen and the petitioner do not know each other; and, that the petitioner failed to show any license or
any other document to justify his lawful possession of the firearm.
CA Ruling
The petitioner appealed to the CA claiming that the checkpoint was not shown to have been legally set up, and/or that the frisking of the
petitioner who was ordered to alight from the Tamaraw FX, along with his companions in the vehicle, violated his constitutional right against
unlawful search and seizure; and, that the trial court erred in believing the version of the incident as testified to by the policemen instead of the
version presented by the defense's witness which is more consistent with truth and human experience.
With respect to the validity of the checkpoint, the CA found that not only do the police officers have in their favor the presumption that
official duties have been regularly performed, but also that the proximity of the day the checkpoint had been set up, to the day of the May 11,
1998 elections, specifically for the purpose of enforcing the COMELEC gun ban, gives a strong badge of the legitimacy of the checkpoint;
that after a review of the records, the evidence adduced by the prosecution prevails over the self-serving and uncorroborated claim of the
petitioner that he had been "framed"; and, that with respect to the admissibility of the firearm as evidence, the prosecution witnesses convincingly
established that the .45 caliber pistol, tucked into the right waist of the petitioner when he alighted from the vehicle, was readily visible,
and, therefore, could be seized without a search warrant under the "plain view" doctrine. CA affirmed the conviction.
SC Ruling on Checkpoint and Plain View
The petitioner insists that the prosecution should have produced the mission order constituting the checkpoint, and invokes Aniag, Jr.
v. Comelec, where the Court purportedly held that firearms seized from a motor vehicle without a warrant are inadmissible because there was no
indication that would trigger any suspicion from the policemen nor any other circumstance showing probable cause.
On both points the petitioner is wrong. In the present case, the production of the mission order is not necessary in view of the fact that
the checkpoint was established three days before the May 11, 1998 elections; and, the circumstances under which the policemen found the
gun warranted its seizure without a warrant.
In Aniag, the police officers manning the checkpoint near the Batasang Pambansa complex stopped the vehicle driven by the driver of
Congressman Aniag. After stopping the vehicle, the police opened a package inside the car which contained a firearm purportedly belonging to
Congressman Aniag. In declaring the search illegal, the Supreme Court stated that the law enforcers who conducted the search had no probable
cause to check the content of the package because the driver did not behave suspiciously nor was there any previous information that a vehicle
hiding a firearm would pass by the checkpoint. In the instant case, the firearm was seized from the petitioner when in plain view, the
policemen saw it tucked into his waist uncovered by his shirt.
Under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in the position to have that view are
subject to seizure and may be presented as evidence. The "plain view" doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the
item he observes may be evidence of a crime, contraband or otherwise subject to seizure.
All the foregoing requirements are present in the instant case. The law enforcement officers lawfully made an initial intrusion because of the
enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion,
the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun
was in plain view and discovered inadvertently when the petitioner alighted from the vehicle.
SC Ruling on the License
However, the Court must underscore that the prosecution failed to satisfactorily prove the negative allegation in the Information that the
petitioner possessed no license or permit to bear the subject firearm. It is a well-entrenched rule "that in crimes involving illegal possession of
firearm, the prosecution has the burden of proving the elements thereof, viz: the existence of the subject firearm, and the fact that the
accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same."
There is no evidence that between 1994 and May 8, 1998, the date the crimewas allegedly committed, no license was issued to
petitioner. While the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of the
petitioner, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was
not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack
of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned.
Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner was carrying a firearm without prior authority, license
or permit, the latter must be exculpated from criminal liability under P.D. No. 1866, as amended.
SC Ruling on Gun Ban
With respect to the charge of violating Section 261 (q) of B.P. Blg. 881, as amended, otherwise known as the Omnibus Election Code, the
Court is constrained to affirm the conviction of the petitioner, since the prosecution successfully discharged its burden of proof.
In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative
allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code,
however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused.

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 Section 32 of R.A. No. 7166 is clear and unequivocal that the prohibited act to which this provision refers is made up of the following
elements: 1) the person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs during the
election period; and, 3) the weapon is carried in a public place. On this point, the petitioner failed to present any form of such authority, and,
therefore, his conviction must be affirmed.
Petitioner Rodolfo Abenes Y Gacutan is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866. However the
conviction on gun ban was affirmed.

Bermudez vs CA
Both the RTC and CA convicted the accused.
SC Ruling on PD 9
The stated purposes of Presidential Decree No. 9 leave no room for doubt that indeed said Decree is one of those issued by the President to
further the ends for which Martial Law was declared, that is, to repel, or at least to prevent the spread of rebellion, insurrection, lawless violence,
sedition, criminality, chaos and public disorder. In other words, the raison d' etre for P.D. No. 9 is primarily linked with the political purposes
for which Proclamation No. 1081 was proclaimed.
In this light, an element surfaces as essential for conviction under PD No. 9 ("3. It is unlawful to carry outside of residence any bladed,
pointed or blunt weapon, such as "fanknife,' 'spear,' 'dagger,' 'bolo,' 'balisong,' 'barong,' 'kris,' or club, except where such articles are
being used as necessary tools or implements to earn a livelihood and while used in connection therewith, any person found guilty thereof shall
suffer the penalty of imprisonment ranging from five to ten years as a Military Court/Tribunal/Commission may direct.") and that is, that the
carrying of the prohibited weapon was made in connection with the crime of subversion, rebellion, insurrection, lawless violence,
criminality, chaos and public disorder mentioned in Proclamation No. 1081, considering the penalty attached thereto. Absent this essential
element as in this case, an acquittal must follow.
In this case, the record reveals that when state witness Paulino Acena grabbed the bolo from the accused Rodolfo Bermudez on the morning
of December 28, 1975 during the barrio fiesta, said accused was not, in any way, involved in any unlawful act of criminality, and more so, in
any act of rebellion, subversion, insurrection, lawless violence, criminality and public disorder. The accused was merely in the act of
showing the bolo to Jorge Tuzon (or Rodolfo Tuazon) since the former thought it to be the same bolo owned by the latter.
The foregoing testimony belies the finding of the respondent Court that before Acena rushed at the accused, the former suddenly saw the
latter in the act of drawing a bolo and injuring Jorge Tuzon. In his testimony, Acena denied knowledge of the accused's intention in drawing the
bolo from its scabbard. He did not know whether the accused was merely showing the bolo to Tuzon (or Tuazon). He just saw from a distance of
25 yards the accused drawing the bolo in front of Tuzon (or Tuazon). If the accused wanted to assault Tuzon (or Tuazon), he could have done so
before Acena could reach him from 25 yards away. The accused's statement, therefore, that he picked up the bolo to show it to Rodolfo (or Jorge)
Tuzon is more tenable, corroborated as it is by the testimony of Jorge Tuzon (or Rodolfo Tuazon) who declared that the accused merely asked him
whether the bolo found by the accused belongs to him (Tuzon or Tuazon).
Under the established facts, We cannot conclude that petitioner was engaged in subversion, insurrection, rebellion, criminality, public
disorder, or lawless violence. His plea of guilty to the charge of public scandal for which he was accordingly sentenced to pay a fine, does
not necessarily give rise to the inference that he was then a participant in subversive activities, or lawless violence or criminality or public
disorder. A rebel, dissident, or criminal would not carry openly such a deadly weapon in front of many people in broad daylight (about 10:30 in
the morning) during a barrio fiesta near the barrio chapel beside which a program for children had just ended. If the bolo were his (as intimated by
witness Nicanor Valera, pp. 3-4, 7, rec.), petitioner could be carrying it as his usual farm or household tool or implement. If it was not his, then his
story that he found the bolo and that he was showing it to his companion Jorge Tuzon (or Rodolfo Tuazon) when his fatherin-law Paulino Acena
saw him and grabbed it from him thinking that petitioner was about to injure Jorge Tuzon (or Rodolfo Tuazon) with it, appears credible.
Accused was acquitted.

Madrigal vs People
Igmidio Madrigal was charged in the Regional Trial Court (RTC) with two separate crimes: (1) violation of P.D. 1866, as amended by R.A.
8294 and (2) violation of the Omnibus Election Code, as amended by R.A. 7166 (Gun Ban). The CA affirmed petitioner's conviction in both
offenses but reduced the penalty.
SC Ruling on Illegal Possession
Petitioner is correct in assailing his conviction for both offenses. Section 1 of R.A. 8294 expressly provides that a person may not be
convicted for illegal possession of firearm if another crime was committed.
Whether there can be a separate offense of illegal possession of firearm and ammunition if there is another crime committed was already
addressed in Agote v. Lorenzo. Agote, like petitioner herein, was convicted of separate charges of (1) illegal possession of firearm and ammunition
and (2) violation of the election gun ban by the RTC and the CA. However, applying Section 1 of R.A. 8294, we set aside Agote's conviction for
illegal possession of firearm since another crime was committed at the same time (violation of the election gun ban).
On the illegal possession of firearm, he was acquitted. However, his conviction under gun ban was affirmed.

Orceo vs Comelec
This is a petition for certiorari questioning the validity of Resolution No. 8714 insofar as it provides that the term "firearm" includes
airsoft guns and their replicas/imitations, which results in their coverage by the gun ban during the election period this year.
Resolution No. 8714 is entitled Rules and Regulations on the: (1) Bearing, Carrying or Transporting of Firearms or other Deadly Weapons;
and (2) Employment, Availment or Engagement of the Services of Security Personnel or Bodyguards, During the Election Period for the May 10,
2010 National and Local Elections. The Resolution was promulgated by the Commission on Elections (COMELEC) on December 16, 2009, and
took effect on December 25, 2009.
Under Section 2 (b) of Resolution No. 8714, the term "firearm" includes "airgun, airsoft guns, and their replica/imitation in whatever
form that can cause an ordinary person to believe that they are real." Hence, airsoft guns and their replicas/imitations are included in the gun
ban during the election period from January 10, 2010 to June 9, 2010. Petitioner claims that he is a real party-in-interest, because he has been
playing airsoft since the year 2000. The continuing implementation of Resolution No. 8714 will put him in danger of sustaining direct injury or

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make him liable for an election offense if caught in possession of an airsoft gun and its replica/imitation in going to and from the game site and
playing the sport during the election period.
The main issue is whether or not the COMELEC gravely abused its discretion in including airsoft guns and their replicas/imitations in the
term "firearm" in Section 2 (b) of R.A. No. 8714.
SEC. 2. Definition of Terms. As used in this Resolution:
(a) Election Period refers to the election period prescribed in Comelec Resolution No. 8646 dated 14 July 2009 which is from 10
January 2010 to 09 June 2010;
(b) Firearm shall refer to the "firearm" as defined in existing laws, rules and regulations. The term also includes airgun,
airsoft guns, and their replica/imitation in whatever form that can cause an ordinary person to believe that they are real;
(c) Deadly weapon includes bladed instrument, handgrenades or other explosives, except pyrotechnics.
SC Ruling
Evidently, the COMELEC had the authority to promulgate Resolution No. 8714 pursuant to Section 35 of R.A. No. 7166. It was granted the
power to issue the implementing rules and regulations of Sections 32 and 33 of R.A. No. 7166. Under this broad power, the COMELEC was
mandated to provide the details of who may bear, carry or transport firearms or other deadly weapons, as well as the definition of "firearms,"
among others. These details are left to the discretion of the COMELEC, which is a constitutional body that possesses special knowledge and
expertise on election matters, with the objective of ensuring the holding of free, orderly, honest, peaceful and credible elections.
In its Comment, the COMELEC, represented by the Office of the Solicitor General, states that the COMELEC's intent in the inclusion of
airsoft guns in the term "firearm" and their resultant coverage by the election gun ban is to avoid the possible use of recreational guns in
sowing fear, intimidation or terror during the election period. An ordinary citizen may not be able to distinguish between a real gun and an
airsoft gun. It is fear subverting the will of a voter, whether brought about by the use of a real gun or a recreational gun, which is sought to be
averted. Ultimately, the objective is to ensure the holding of free, orderly, honest, peaceful and credible elections this year.
As regards law on airsoft, PNP Circular No. 11 classifies the airsoft rifle/pistol as a special type of air gun, which is restricted in its use only
to sporting activities, such as war game simulation. Any person who desires to possess an airsoft rifle/pistol needs a license from the PNP,
and he shall file his application in accordance with PNP Standard Operating Procedure No. 13, which prescribes the procedure to be
followed in the licensing of firearms. The minimum age limit of the applicant is 18 years old. The Circular also requires a Permit to Transport
an airsoft rifle/pistol from the place of residence to any game or exhibition site.
A license to possess an airsoft gun, just like ordinary licenses in other regulated fields, does not confer an absolute right, but only a
personal privilege to be exercised under existing restrictions, and such as may thereafter be reasonably imposed. The inclusion of airsoft guns
and airguns in the term "firearm" in Resolution No. 8714 for purposes of the gun ban during the election period is a reasonable restriction, the
objective of which is to ensure the holding of free, orderly, honest, peaceful and credible elections.
However, the Court excludes the replicas and imitations of airsoft guns and airguns from the term "firearm" under Resolution No. 8714,
because they are not subject to any regulation, unlike airsoft guns.
SC Ruling on Constitutional Rights
Petitioner asserts that playing airsoft provides bonding moments among family members. Families are entitled to protection by the society
and the State under the Universal Declaration of Human Rights. They are free to choose and enjoy their recreational activities. These liberties,
petitioner contends, cannot be abridged by the COMELEC.
In its Comment, the COMELEC, through the Solicitor General, states that it adheres to the aforementioned state policies, but even
constitutional freedoms are not absolute, and they may be abridged to some extent to serve appropriate and important interests.
As a long-time player of the airsoft sport, it is presumed that petitioner has a license to possess an airsoft gun. As a lawyer, petitioner is
aware that a licensee of an airsoft gun is subject to the restrictions imposed upon him by PNP Circular No. 11 and other valid restrictions, such as
Resolution No. 8714. These restrictions exist in spite of the aforementioned State policies, which do not directly uphold a licensee's absolute right
to possess or carry an airsoft gun under any circumstance.
The Court holds that the COMELEC did not gravely abuse its discretion in including airsoft guns and airguns in the term "firearm" in
Resolution No. 8714 for purposes of the gun ban during the election period, with the apparent objective of ensuring free, honest, peaceful and
credible elections this year. However, the replicas and imitations of airsoft guns and airguns are excluded from the term "firearm" in Resolution
No. 8714.
Petition was partly granted.

People vs Lasanas
It appears from the records that at or about 9:00 o'clock in the evening on 10 July 1974, in Iloilo City, Benigno Ricaforte was walking with
his family and a friend along a narrow interior footpath which opened onto Rizal and Estanzuela Streets and nearing Rizal Street when Rogelio
Lasanas and Conrado Magsalin approached Benigno. Rogelio Lasanas suddenly stabbed Benigno in the abdomen while Conrado Magsalin hit
him in the back with a meter-long piece of wood. Johnny Lorque and Domingo Fernandez followed up by striking and beating Benigno with lead
pipe and hammer, respectively. Benigno died on the spot. Benigno's brothers, Alfonso and Enecito, who rushed to his rescue, also suffered several
wounds inflicted on them by the four; fortunately, they received timely medical treatment.
SC Ruling on Automatic Review
The practice adopted by this Court in connection with the abolition of capital punishment and hence of automatic review, has been to ask the
accused whether he still wishes to appeal his conviction considering the automatic reduction of his death sentence to reclusion perpetua. Thus, in
the future, unless the death penalty is reinstituted or mandatory review of reclusion perpetua cases is provided for, an accused must explicitly
appeal both his conviction for an offense punishable with reclusion perpetua and his conviction for a less serious crime or crimes committed on
the same occasion as the more serious one.
SC Ruling on Violations of PD 9
In their first assignment of error, the accused Rogelio Lasanas and Conrado Magsalin urge that the lower court erred in finding them guilty
of violation of General Orders Nos. 6 and 7 in relation to Presidential Decree No. 9. Since, as already noted, the trial court acquitted Conrado
Magsalin in Criminal Case No. 5054, this assignment of error must be regarded as raised by Rogelio Lasanas alone. While the information failed
to identify the specific paragraph of P.D. No. 9 alleged to have been violated by accused Lasanas, even a cursory examination of P.D. No. 9 will
show that the information must have been intended to refer to paragraph 3 of P.D. No. 9: It is unlawful to carry outside of residence any
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bladed, pointed or blunt weapon such as 'fanknife,' 'spear,' 'dagger,' 'bolo,' 'balisong,' 'barong,' 'kris,' or club, except where such articles
are being used as necessary tools or implements to earn a livelihood...
In People vs. Purisima, Mme. Justice Muoz Palma speaking for the Court, in a tour de force of statutory construction, addressed the
question of: "What . . . are the elements of the offense treated in [paragraph 3 of] the Presidential Decree [No. 9] in question?":
"We hold that the offense carries two elements: first, the carrying outside one's residence of any bladed, blunt, or
pointed weapon, etc. not used as a necessary tool or implement for a livelihood; and second, that the act of carrying the
weapon was either in furtherance of, or to abet, or in connection with subversion, rebellion, insurrection, lawless
violence, criminality, chaos, or public disorder.
It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of the scope of the statute
or the city ordinance mentioned above. In other words, a simple act of carrying any of the weapons described in the
presidential decree is not a criminal offense in itself . What makes the act criminal or punishable under the decree is the
motivation behind it. Without that motivation, the act falls within the purview of the city ordinance or some statute when the
circumstances so warrant."
Applying the doctrine of Purisima, it is plain that the information filed in Criminal Case No. 5055 was fatally defective. That information
failed to charge the commission of acts constitutive of the second element of the offense sought to be charged i.e., that the carrying of
the weapon was in furtherance of, or to abet, or in connection with "subversion, rebellion, insurrection, lawless violation, criminality,
chaos or public disorder." Thus, the information failed to charge an offense under P.D. No. 9, paragraph 3 with the result that accused
Lasanas could not have been lawfully convicted of such offense under the information as actually filed.
SC Ruling on Murder and Frustrated Murder
At about 9:00 o'clock p.m. on 10 July 1974, Benigno Ricaforte led his friend Numeriano and his family along an electric-lighted foot path,
about two feet wide, leading onto the main streets the Rizal and Estanzuela Streets. Meanwhile, the accused Rogelio Lasanas, Conrado
Magsalin, with Johnny Lorque and Domingo Fernandez were standing by the "Pining Rolling Store" at the opposite end of Rizal Street. Upon
seeing Benigno approaching the main street, Rogelio, in almost perfect coordination with Conrado, came forward and stabbed Benigno Ricaforte
in the abdomen while Conrado hit him at the back with a piece of wood. Alfonso Ricaforte who was following his brother Benigno, ran to succor
the latter but was effectively prevented from doing so by Johnny Lorque who whipped him on the upper jaw with a lead pipe and by Domingo
Fernandez who struck him on his chest with a hammer, causing Alfonso to fall to the ground face up. Maxima and Demetria shouted for Enecito
who bad been left behind at Alfonso's house. Enecito accordingly ran towards the fray and the shouting only to be stabbed by Rogelio Lasanas
and by Conrado Magsalin.
The information in Criminal Case No. 5056 alleged the presence of conspiracy, and the elements of evident premeditation and treachery.
In respect of evident premeditation, the prosecution failed to show when the accused determined to kill Benigno Ricaforte, an element
which is essential in order that the Court could determine whether sufficient time had elapsed between the inception of a concerted plan
by the guilty parties and "its fulfillment for them dispassionately to consider and accept the consequences." The trial court did find that the
group of Rogelio Lasanas stood waiting for the victim to come out from the interior footpath onto Rizal Street; this circumstance, however, by
itself and without proof of when the criminal plan was first agreed upon, is not evidence that a sufficient length of time had lapsed between the
formation of the criminal design and its execution Accordingly, we find that the trial court erred on this account.
Turning to the question of conspiracy, the trial court explicitly found the presence of conspiracy, the accused having attacked the
victim "in concert, which positively prove their unity and community of purpose." The accused and their companions waited for Benigno at
the "Pining Rolling Store" at the opposite end of Rizal Street. As Benigno was emerging from the footpath, the two accused together approached
him and suddenly attacked him. Johnny Lorque and Domingo Fernandez then came up and finished off Benigno with lead pipe and hammer.
Plainly, all four acted in concert. We see no basis for disturbing the finding of conspiracy by the trial court.
We come to the question of treachery. It is familiar doctrine that two conditions need to be satisfied for treachery to be found properly: (a)
the employment of means, method or manner of execution which would ensure the offender's safety from defensive or retaliatory acts on
the part of the victim, no opportunity being given to the latter to defend himself or to retaliate; and (b) such means, method or manner of
execution were deliberately or consciously chosen. In the instant case, the victim Benigno Ricaforte had no opportunity to defend himself from
the sudden and unexpected attack by the accused. He had no reason to expect danger from the accused as his prior relationships with them had
been at least civil and perhaps cordial. True, the victim had with him, or more precisely, behind him, companions who might have defended him.
But those companions were themselves caught by surprise and, more importantly, were unarmed. While the suddenness of an attack might not
itself be enough to constitute treachery, such suddenness is, however, enough to qualify an act as treacherous if such suddenness were, as here,
consciously adopted to ensure the commission of the planned killing without risk to the perpetrators. As previously noted, both accused
approached Benigno simultaneously and struck at him at almost the same time, one with a knife in front and the other with a piece of wood from
behind. Shortly thereafter, Johnny Lorque and Domingo Fernandez dispatched the victim with lead pipe and hammer. Johnny Lorque, and
Domingo Fernandez then turned upon Alfonso Ricaforte and whipped him too with lead pipe and hammer preventing any succor to Benigno. The
suddenness and the concerted nature of the deadly attack on Benigno sustain the court's finding of treachery.
On the charge of frustrated murder, it thus appears clear that all the acts of execution necessary to produce the death of Enecito
Ricaforte had already been performed by the accused and that death did not ensue because of the intervention of timely medical attention,
a cause independent of the will of the accused. The suddenness of the coordinated attack upon Alfonso and then Enecito signified the
continuing presence of the element of treachery for neither Alfonso nor Enecito, who were both unarmed, had any opportunity to defend
themselves or to retaliate against their aggressors. We hold that the accused were properly convicted of the crime of frustrated murder.
On extrajudicial confessions. The extra-judicial confessions of Rogelio Lasanas and Conrado Magsalin taken down by Sergeant
Melquiades Teodoro have a major flaw which was made clear in the testimony of Sergeant Teodoro himself. The accused had not been
informed that if they had no lawyer or could not afford counsel, the state will provide them with one to assist them in the course of the
investigation. Under both Article IV (20) of the 1973 Constitution and Article III (12) of the 1987 Constitution, the extra-judicial confessions of
the accused are not admissible in evidence. The exclusion of such extra-judicial confessions has no effect, however, upon the conclusions
reached by the trial court. Its conclusions, as far as they relate to the guilt of the accused of the crimes of murder and frustrated murder,
are sustained by evidence other than the extra-judicial confessions, i,e., the testimony of eyewitnesses, showing guilt beyond reasonable
doubt.
Judgment was modified.
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 People vs De Guzman
Edsel Martin, who is still at large and Danilo de Guzman were charged before the Regional Trial Court of Cavite with violation of Section
16, Article III, Republic Act 6425, otherwise known as the Dangerous Drugs Act of 1972. The arresting police officers found inside their cottage
299.5 grams of methamphetamine Hydrochloride commonly known as "shabu,' and drug related paraphernalia. Danilo de Guzman was also
charged with violation of Section 1, Presidential Decree 1866, otherwise known as the Unlawful Possession of Firearms and Ammunition. He was
caught by the police officers carrying one (1) Pistol Caliber 7.65 Walter PPK with serial number 527353 and four (4) rounds of live ammunition
without the necessary permit.
Accused-appellant faults the prosecution for its failure to introduce the independent testimonies of the workers at the resort, which amounts
to a willful suppression of evidence and gives rise to the presumption that the same is adverse to the prosecution if produced, pursuant to Rule 131,
Section 3(e) of the Revised Rules of Court.
SC Ruling on Quantum of Evidence
The prosecution has the prerogative to present the witnesses it needs to meet the quantum of evidence necessary to merit the
conviction of the accused. Hence, the prosecution cannot be faulted for presenting only the three (3) police officers involved in the arrest
of accused-appellant. As these officers enjoy a presumption of regularity in the performance of official duty, it was likewise error for the defense
to question their testimonies solely on the ground that they were the very officers who conducted the arrest. Besides, the trial court had sufficient
opportunity to observe the demeanor of these witnesses and to determine the truth or falsity of their testimonies. We see no reason, therefore, to
overturn the findings of facts of the lower court.
SC Ruling on Arrest and Search
A close scrutiny of the records reveals that the police officers' manner of conducting the accused-appellant's arrest was not tainted with any
constitutional infirmity. Despite word from their fellow officer, SPO1 Cuevas, that he saw accused-appellant sniff "shabu", they resisted the first
impulse to storm the rented cottage which could have caused them to seriously disregard constitutional safeguards. Instead, the police officers
waited for the needed opening to validly arrest the accused. To their minds, it would be the arrival of drug buyers. As the situation would
have it, the arrest was necessitated by the presence of accused-appellant with a gun obviously tucked in his pants.
In this jurisdiction, the mere possession of a firearm, ammunition or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition is a criminal offense under PD No. 1866. In the case of People v. Quijada, it was held that the
gravamen of the offense of violation of P.D. 1866 is the possession of a firearm without the necessary permit and/or license. The crime is
immediately consummated upon mere possession of firearm devoid of legal authority, since it is assumed that the same is possessed with animus
possidendi. Similarly, in the case at bar, accused-appellant was caught by the police officers in flagrante delicto while carrying a firearm
without the necessary permit or license. Clearly, it was in violation of P.D. No. 1866, Section 1, at the time of the arrest.
The search conducted immediately after accused-appellant was apprehended was made more necessary by the presence of his companion
inside the cottage which was just a few steps away from where he stood. The presence of accused-appellant's companion posed a danger to
the police officers' life and limb, hence, it became necessary for them to locate him. Upon entry at the rented cottage, the police officers
saw the shabu and drug- related paraphernalia scattered on top of the table. Jurisprudence allows the seizure of personality despite
absence of warrant under the "plain view doctrine," so long as the area of search is within the immediate control of the arrested person
and that the object of the search was open to the eye, as in the instant case.
Furthermore, accused-appellant in this case is estopped from questioning the legality of his arrest upon his failure to move for quashal
of the information against him prior to his arraignment and entry of plea. Any irregularity was therefore cured upon their voluntary
submission to the trial court's jurisdiction.
SC Ruling on Illegal Possession of Drugs
As to the illegal possession of drugs, this Court in People v. Khor ruled that the elements of illegal possession of dangerous drugs are: (1)
the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law;
and (3) the accused freely and consciously possessed the said drug. Considering that the circumstances herein satisfy the elements of illegal
possession of drugs under Section 16, Article III of RA No. 6425, the trial court was correct in convicting accused appellant.
Conviction was affirmed.

People vs Marquez
Appellant was convicted of frustrated robbery with homicide and frustrated homicide and of illegal possession of firearm. The cases
stemmed from a bus hold-up, which resulted in the killing of the bus conductor and the wounding of a police officer. The gun, identified by the
police officer as the weapon used in the attempted robbery, was found at the back of a certain Ilag's house, the place where appellant sought solace
after being injured.
RTC Ruling
In convicting appellant of frustrated robbery with homicide and frustrated homicide, the court a quo gave full faith and credence to the
testimonies of the primary prosecution witnesses, SPO1 Rizaldy Merene and Manuel Fleta. It underscored their straightforward and cohesive
identification of appellant as the culprit who had announced the hold-up and exchanged gunfire with Merene, resulting in the wounding of the
police officer and the killing of the bus conductor. The court a quo debunked the assertion of appellant that he was a mere passenger who had been
injured in the crossfire. It was convinced that his actions and the circumstances surrounding the incident indubitably showed his participation in
the attempted robbery, as well as in the consequent wounding of Merene and death of the bus conductor.
The trial court likewise found appellant guilty beyond reasonable doubt of illegal possession of firearm. It stressed the fact that the gun
which was subsequently identified by Merene as the weapon used in the attempted robbery was found at the back of Mauricio Ilag's house, the
place where appellant had sought solace after being injured.
SC Ruling on Credibility of Witness
True, there is a marked discrepancy between the testimonies of Merene and Fleta as regards the whereabouts of the bus conductor before,
during and immediately after the hold-up. It must be noted, however, that the points of recall of the two witnesses were different. Merene
was an active participant in the gunfight; thus, he could not be expected to remember the peripherals of the incident. Fleta was a passive
eyewitness; as such, he was able to observe things that the former might have overlooked. Moreover, the Court has held that "[t]otal
recall or perfect symmetry is not required as long as witnesses concur on material points."

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 It must be emphasized that the above-mentioned testimonial disparity does not negate the fact that appellant was positively identified
by both witnesses as the malefactor who had announced the hold-up and exchanged gunshots with the police officer. There is no contrariety
with regard to this vital fact. Both witnesses consistently, cohesively and certainly identified appellant as the culprit.
The Court regards as too incredulous appellant's version of the hold-up incident: that he was a mere passenger who caught, hit and
wounded in the crossfire jumped off the bus to save himself. First, the JAC Liner bus was air-conditioned, and so its windows were closed.
Thus, the passengers would not have been able to immediately open and jump from those windows. Second, because the gunfight happened in
front, appellant could not have jumped out of the bus from its door, which was located near that area. Lastly, given his gunshot wounds, the flight
of appellant from the scene of the crime casts doubts on his protestations of innocence; more important, he was positively identified as one of the
culprits.
We agree with the court a quo's assessment of the credibility of the witnesses, specifically with regard to the identification of appellant. In
this case, we adhere to the legal truism that such assessment is accorded great weight and respect, for the trial court had the opportunity to observe
the witnesses' demeanor and deportment as they testified before it. Likewise, we hold that appellant's denial cannot prevail over the positive
identification by credible witnesses.
SC Ruling on Frustrated Robbery with Homicide
and Frustrated Homicide, as well as Violation of PD 1866
In robbery with homicide, it is imperative that the prosecution prove a direct relation between the robbery and the killing. It must
convincingly show that robbery was the original criminal design of the culprit, and that homicide was perpetrated with a view to the
consummation of the robbery, by reason or on occasion thereof. That appellant intended to rob the passengers of the JAC Liner bus is
evident. The robbery was foiled, however, when SPO1 Rizaldy Merene decided to fight back. Were it not for the presence and the bravery
of this police officer, appellant and his cohorts would have successfully consummated their original plan.
In the gunfight that ensued between appellant and Merene, bus conductor Joselito Halum was killed. Clearly, his death occurred by reason
or as an incident of the robbery. Even if it was merely incidental (he was caught in the crossfire), still, frustrated robbery with homicide was
committed. With regard to the charge of frustrated homicide, appellant, in shooting Merene almost pointblank, had performed all the acts
necessary to kill the latter, who survived because of timely medical intervention. Thus, appellant's conviction for frustrated robbery with
homicide and frustrated homicide must be sustained.
On the other hand, we agree with the Office of the Solicitor General that the trial court's conviction of appellant for violation of PD 1866
should be reversed; he should be acquitted. In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
following (1) the existence of the subject firearm and (2) the fact that the accused who owns it does not have a license or permit to carry it. In the
present case, it must be emphasized that the subject gun was not found in the possession of appellant; rather, it was discovered at the back
of the house of Mauricio Ilao, from whom the former had sought solace after the hold-up incident. While the prosecution, considering the
circumstances, assumes that the gun was brought there by appellant, such conjecture does not satisfy the elements of the crime; it is clearly not
enough to prove beyond reasonable doubt that he was guilty of illegal possession of firearm.
Furthermore, in People v. Molina, this Court has ruled that the use of an unlicensed firearm merely aggravates a killing and may no
longer be the source of a separate conviction for the crime of illegal possession of a deadly weapon. This doctrine was reiterated in People v.
Feloteo and People v. Narvasa. In People v. Macoy it was held that, being favorable to the accused, the same may be invoked even if the illegal
possession had been committed prior to the effectivity of RA 8294 on July 6, 1997.
In view, however, of the failure of the prosecution to prove illegal possession on the part of appellant, we cannot even apply the
Molina doctrine to aggravate the penalty.
Judgment was modified.

People vs Purisima
Before those courts, Informations were filed charging the respective accused with "illegal possession of deadly weapon" in violation of
Presidential Decree No. 9. On a motion to quash filed by the accused, the three Judges mentioned above issued in the respective cases filed before
them the details of which will be recounted below an Order quashing or dismissing the Informations, on a common ground, viz, that the
Information did not allege facts which constitute the offense penalized by Presidential Decree No. 9 because it failed to state one essential
element of the crime. Thus, are the Informations filed by the People sufficient in form and substance to constitute the offense of "illegal
possession of deadly weapon" penalized under Presidential Decree (PD for short) No. 9? This is the central issue which we shall resolve and
dispose of, all other corollary matters not being indispensable for the moment.
SC Ruling
It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the nature and cause of the
accusation against him. Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a complaint or information to
be sufficient it must, inter alia, state the designation of the offense by the statute, and the acts or omissions complained of as constituting the
offense. This is essential to avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly.
To comply with these fundamental requirements of the Constitution and the Rules on Criminal Procedure, it is imperative for the specific
statute violated to be designated or mentioned in the charge. In fact, another compelling reason exists why a specification of the statute violated is
essential in these cases. As stated in the order of respondent Judge Maceren the carrying of so-called "deadly weapons" is the subject of another
penal statute and a Manila city ordinance.
We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed repealed by P.D. 9 (3). P. D. 9(3)
does not contain any repealing clause or provision, and repeal by implication is not favored. This principle holds true with greater force with
regards to penal statutes which as a rule are to be construed strictly against the state and liberally in favor of the accused. In fact, Article 7 of the
New Civil Code provides that laws are repealed only by subsequent ones and their violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
Thus we are faced with the situation where a particular act may be made to fall, at the discretion of a police officer or a prosecuting fiscal,
under the statute, or the city ordinance, or the presidential decree. That being the case, the right becomes more compelling for an accused to be
confronted with the facts constituting the essential elements of the offense charged against him, if he is not to become an easy pawn of oppression
and harassment, or of negligent or misguided official action - a fear understandably shared by respondent Judges who by the nature of their
judicial functions are daily exposed to such dangers.
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 We hold that the offense carries two elements: first, the carrying outside one's residence of any bladed, blunt, or pointed weapon, etc.
not used as a necessary tool or implement for a livelihood; and second, that the act of carrying the weapon was either in furtherance of, or
to abet, or in connection with subversion, rebellion, insurrection, lawless violence, criminality, chaos, or public disorder.
It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of the scope of the statute or the
city ordinance mentioned above. In other words, a simple act of carrying any of the weapons described in the presidential decree is not a
criminal offense in itself. What makes the act criminal or punishable under the decree is the motivation behind it. Without that
motivation, the act falls within the purview of the city ordinance or some statute when the circumstances so warrant.
In the construction or interpretation of a legislative measure a presidential decree in these cases the primary rule is to search for
and determine the intent and spirit of the law. Legislative intent is the controlling factor, for in the words of this Court in Hidalgo v. Hidalgo,
per Mr. Justice Claudio Teehankee, whatever is within the spirit of a statute is within the statute, and this has to be so if strict adherence to the
letter would result in absurdity, injustice and contradictions.
In the paragraph immediately following the last "Whereas" clause, the presidential decree states:
"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 Orders Nos. 6 and 7, do hereby
order and decree that:
"xxx xxx xxx
From the above it is clear that the acts penalized in P.D. 9 are those related to the desired result of Proclamation 1081 and General Orders
Nos. 6 and 7. General Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3) which refers to blunt or bladed weapons.
It follows that it is only that act of carrying a blunt or bladed weapon with a motivation connected with or related to the afore-quoted
desired result of Proclamation 1081 that is within the intent of P.D. 9(3), and nothing else.
Penal statutes are to be construed strictly against the state and liberally in favor of an accused. American jurisprudence sets down the
reason for this rule to be "the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which
mankind would be safe, and the discretion of the court limited." The purpose is not to enable a guilty person to escape punishment through a
technicality but to provide a precise definition of forbidden acts.
The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order that the latter may constitute a
sufficiently valid charged. The sufficiency of an Information is determined solely by the facts alleged therein. Where the facts are incomplete
and do not convey the elements of the crime, the quashing of the accusation is in order. Section 2(a), Rule 117 of the Rules of Court provides that
the defendant may move to quash the complaint or information when the facts charged do not constitute an offense.
Two courses of action were open to Petitioner upon the quashing of the Informations in these cases, viz:
First, if the evidence on hand so warranted, the People could have filed an amended Information to include the second element of the
offense as defined in the disputed orders of respondent Judges. We have ruled that if the facts alleged in the Information do not constitute a
punishable offense, the case should not be dismissed but the prosecution should be given an opportunity to amend the Information.
Second, if the facts so justified, the People could have filed a complaint either under Section 26 of Act No. 1780, quoted earlier, or
Manila City Ordinance No. 3820, as amended by Ordinance No. 3928, especially since in most if not all of the cases, the dismissal was
made prior to arraignment of the accused and on a motion to quash.
Yes, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is however a judicial task and prerogative to
determine if official action is within the spirit and letter of the law and if basic fundamental rights of an individual guaranteed by the Constitution
are not violated in the process of its implementation. We have to face the fact that it is an unwise and unjust application of a law, necessary and
justified under prevailing circumstances, which renders the measure an instrument of oppression and evil and leads the citizenry to lose their faith
in their government.
The court affirmed the Orders of respondent Judges dismissing or quashing the Information concerned.

People vs Ringor
The prosecution established that on June 23, 1994 at around 6:00 o'clock in the evening, Ringor and his two companions entered at the
People's Restaurant. After seating themselves, they ordered a bottle of gin. Minutes later, appellant approached one of the tables where Florida,
the restaurant's cook, was drinking beer. Without any warning, Ringor pulled Florida's hair and poked a knife on the latter's throat. Florida stood
up and pleaded not to harm him. Ringor relented and released his grip on Florida. Thereafter, they left the restaurant. Few minutes later, Ringor
was back brandishing a gun and menacingly entered the kitchen of the restaurant. He stealthily approached Florida from behind and fired six
successive shots at Florida which caused his instantaneous death. Then, he fled, but he was arrested by a policeman, and a paltik caliber .38
revolver was recovered from him. For his defense, Ringor interposed the theory of self-defense. Subsequently, the Regional Trial Court of Baguio
City convicted him for the crime of murder and a penalty of death was imposed upon him. He was also found guilty of illegal possession of
firearms.
SC Ruling on Onus Probandi
Well-settled is the rule that in interposing self-defense, the offender admits authorship of the killing. The onus probandi is thus shifted to
him to prove the elements of self-defense and that the killing was justified; otherwise, having admitted the killing, conviction is inescapable.
Concomitantly, he must rely on the strength of his own evidence and not on the weakness of the prosecution's evidence.
For self-defense to prosper, it must be established that: (1) there was unlawful aggression by the victim; (2) that the means employed to
prevent or repel such aggression was reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending
himself.
In the case at bar, accused-appellant failed to prove the element of unlawful aggression. The allegation that the victim allegedly went out
of the kitchen armed with a bolo, and was about to hack him (accused-appellant) who was then at an almost prone lying position on the
table he was occupying, is a self-serving and unconvincing statement which did not in anyway constitute the requisite quantum of proof
for unlawful aggression. Prosecution witness Fely Batanes, a waitress in the restaurant where the shooting incident occurred, was firm in her
declaration that the victim was in the kitchen unarmed when the accused-appellant shot him. The victim had no weapon or bolo. He was neither
threatening to attack nor in any manner manifesting any aggressive act which could have imperiled accused-appellant's safety and well-being.

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 No improper motive having been shown on the part of Fely Batanes to testify falsely against accused-appellant or to implicate him
in the commission of the crime, the logical conclusion is that there was no such improper motive and her testimony is worthy of full faith
and credit. What is more, the testimony of Fely Batanes is buttressed by the fact that immediately after the incident, the body of the victim was
found lying in the kitchen and not outside; thus weakening further the theory of accused-appellant that he shot the victim while they were at the
dining area.
Then too, the nature, location and number of gunshot wounds inflicted on the deceased belie accused-appellant's theory of
self-defense. The deceased sustained three gun shot wounds on the back and one in front. Dr. John Tinoyan, who conducted the autopsy on
the cadaver of the victim, testified that the gunshot wound on the frontal portion of the victim's body showed a downward trajectory of the bullet
on his chest, penetrating the liver, perforating the stomach down to the small intestine, and then lodged underneath the skin. Verily, such finding
negates the claim of accused-appellant that he shot the victim while he was at an almost prone lying position and the victim was standing in front
of him about to strike with a bolo. If this were true, the trajectory of the bullet should have been upward or better still, it should have been at the
level at which the gun was fired while he (accused-appellant) was in a prone lying position.
SC Ruling on Treachery
The Court a quo properly appreciated the aggravating circumstance of treachery which qualified the crime to murder. It was clearly
established that the accused-appellant fired six successive shots on the victim, suddenly, without warning, and from behind, giving the
victim no chance to flee or to prepare for his defense or to put up the least resistance to such sudden assault. There is treachery when the
means, manner or method of attack employed by the offender offered no risk to himself from any defensive or retaliatory act which the victim
might have taken.
SC Ruling on Illegal Possession of Firearm
With respect to the conviction of accused-appellant for illegal possession of firearms under P.D. No. 1866, it was held in the case of People
vs. Molina and reiterated in the recent case of People vs. Ronaldo Valdez, that in cases where murder or homicide is committed with the use of
an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of
the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply
considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for
illegal possession of firearms shall be imposed provided that no other crime is committed. In other words, where murder or homicide was
committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance.
On the matter of the aggravating circumstance of "use of unlicensed firearm" in the commission of murder or homicide, the trial court erred
in appreciating the same to qualify to death the penalty for the murder committed by accused-appellant. It should be noted that at the time
accused-appellant perpetrated the offense, the unlicensed character of a firearm used in taking the life of another was not yet an
aggravating circumstance in homicide or murder.
The amendatory law making the "use of an unlicensed firearm" as an aggravating circumstance in murder or homicide, cannot be
applied here because the said provision of R.A. No. 8294 is not favorable to accused-appellant, lest it becomes an ex post facto law.
Accused was convicted but sentenced to reclusion perpetua not death.

Rimando vs Comelec
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court with prayer for the issuance of a temporary restraining order
and/or writ of preliminary injunction to reverse and set aside the following issuances of the Commission on Elections (COMELEC) En Banc: 1)
Resolution promulgated on October 11, 2005 and 2) Resolution promulgated on January 5, 2007 in Election Offense (E.O.) Case No. 01-130 for
Violation of the Omnibus Election Code.
That on or about February 27, 2001, and/or during the election period from January 2, 2001 to June 13, 2001, in Quezon City and Santa
Rosa, Laguna, and within the jurisdiction of this Honorable Commission, . . . JUANITO R. RIMANDO, being then the President and General
Manager of the Illustrious Security and Investigation Agency, Inc. despite the COMELEC denial on February 19, 2001 of his/its application for a
Firearms & Other Deadly Weapons Ban Exemption, in conspiring with one another, did then and there, willfully and unlawfully, allow, permit
and/or sanction his/its SECURITY GUARDS JACINTO CARAG AND JONRY ENAYA, to work as such as they in fact unlawfully and willfully
did at the Santa Rosa Homes, Santa Rosa, Laguna, using 12 GA with Firearms License Nos. 0002946J0048708 and 0002946J00478992, knowing
fully well that they had no prior written COMELEC authority to do so under said Section 2, paragraph e and Section 3, paragraph d COMELEC
RESOLUTION 3328; that on February 27, 2001, respondent-Security Guard JACINTO CARAG, without any justifiable cause, with intent to kill,
taking advantage of nighttime, with treachery and use of firearm, did then there, willfully, feloniously and unlawfully shoot to death with a
shotgun JONATHAN MAGNO, a 19-year old unarmed and defenseless nautical student in his school uniform. . . that said respondent-Security
Guard CARAG immediately fled from the scene of the crime and is still at large, and that the fatal weapon though recovered by the afore-named
agency has not yet been surrendered by said respondent RIMANDO to the police authorities, to the damage and prejudice of the heirs of said
victim represented by the undersigned mother. . . .
SC Ruling on Gun Ban
A perusal of Section 261 (s) in its entirety would show that, as a rule, the bearing of arms by a member of security or police organization of
a government office or of a privately owned security agency outside the immediate vicinity of one's place of work is prohibited. Implicitly, the
bearing of arms by such person within the immediate vicinity of his place of work is not prohibited and does not require prior written
approval from the Commission. However, Section 261 (s) also lays down exceptions to this rule and states that the general prohibition
shall not apply in three instances: (a) when any of the persons enumerated therein is in pursuit of another person who has committed or is
committing a crime in the premises the former is guarding; (b) when such person is escorting or providing security for the transport of
payrolls, deposits, or other valuables; and (c) when he is guarding private residences, buildings or offices. It is only in the case of the third
exception that it is provided that prior written approval from the COMELEC shall be obtained.
In the case at bar, the cause of the confusion appears to be the fact that the security guards who were being charged with violation of the
election gun ban were bearing firearms within the immediate vicinity of their place of work, but their place of work happened to be a residential
subdivision where they were guarding the residences of private persons. Indeed, this seeming conflict between the general rule (which allows the
bearing of arms within the immediate vicinity of the security personnel's place of work) and the exception (which states that prior written approval
from the COMELEC is necessary when security personnel are guarding private residences or offices) can be harmonized if we interpret the
exceptions as pertaining to instances where the security personnel are outside the immediate vicinity of their place of work or where the
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boundaries of their place of work cannot be easily determined. Applying this interpretation to the case at bar, prior written approval from
the COMELEC is only required when a member of a security agency is guarding private residences outside the immediate vicinity of his
place of work, or where the exact area of his assignment is not readily determinable.
From the foregoing provisions of COMELEC Resolution No. 3328, one of the prohibited acts is for a member of a privately owned or
operated security agency to bear firearms outside the immediate vicinity of his place of work. Such prohibition shall not apply 1) when the
member of the security agency is in the actual performance of his duty in the specific area of his assignment with prior written authority from the
Commission, and 2) when such member is guarding private residences, buildings or offices with prior written authority from the Commission.
However, these two instances presuppose that the member of the security agency was undertaking his duties in such a manner that the boundaries
of his place of work cannot be determined with exactitude.
Even assuming for the sake of argument that Section 261 (s) required petitioner's security agency to secure prior written approval
from the COMELEC for its security guards to bear arms in their place of work (which was a residential subdivision), the failure of the
President or General Manager of the security agency to secure such approval is not itself defined as an election offense. What is punished
or prohibited under Section 261 (s) is merely the bearing of arms by a member of a security agency outside the immediate vicinity of his
place of work without the approval of the COMELEC as required under particular circumstances.
It may likewise be noted that mere possession of unlicensed firearms is already punishable by statute as a crime. Hence, the owner, manager
or operator of the security agency that obtains unlicensed firearms and issues the same to security guards in its employ is undeniably criminally
liable. Moreover, the law on illegal possession of firearms has been amended to specifically penalize the owner, president, manager, director, or
other responsible officer of any public or private firm or entity who knowingly allows the use of unlicensed firearms by his personnel. To
reiterate, under Section 261 (s) of the Omnibus Election Code, the punishable act is the bearing of arms outside the immediate vicinity of
one's place of work during the election period and not the failure of the head or responsible officer of the security agency to obtain prior
written COMELEC approval.
In any event, there is likewise nothing in R.A. 7166 that expressly penalizes the mere failure to secure written authority from the COMELEC
as required in Section 32 thereof. Such failure to secure an authorization must still be accompanied by other operative acts, such as the bearing,
carrying or transporting of firearms in public places during the election period.
All told, petitioner should be absolved of any criminal liability, consistent with the doctrine of nullum crimen, nulla poena sine
lege there is no crime when there is no law punishing it.
Resolution os the COMELEC en banc was set aside.

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