G.R. No. 128148 . February 16, 2004.
PEOPLE OF THE PHILIPPINES, appellee vs. JOHNNY MALINAO Y NOBE, appellant.

FACTS

Appellant Johnny Malinao was charged with Murder and Illegal Possession of Firearm under P.D. No. 1866 for the killing of Nestor Otanguin on November 14, 1994. The prosecution established that after a prior minor incident involving the victim’s car and appellant’s rooster, appellant, while drinking with friends, invited the passing victim for a drink. When the victim declined a second drink and attempted to leave, appellant drew a .38 caliber revolver and shot him in the chest and head, causing instant death. Paraffin tests on appellant were positive for gunpowder, ballistics confirmed the bullets were from a .38 caliber firearm, and a PNP certification confirmed appellant had no license for any firearm. Appellant claimed self-defense, alleging the victim drew the gun first and it discharged during a struggle.
The trial court found the prosecution’s evidence credible and rejected the claim of self-defense. Applying the ruling in People vs. Barros, the trial court held that when murder or homicide is committed with an unlicensed firearm, the accused should be convicted only of the aggravated form of illegal possession under P.D. No. 1866, treating it as a single, composite crime. Consequently, the court convicted appellant of aggravated illegal possession of firearm and imposed the death penalty.

ISSUE

Whether the trial court correctly convicted appellant of the aggravated form of illegal possession of firearm under P.D. No. 1866, instead of separate crimes of murder and simple illegal possession.

RULING

The Supreme Court affirmed the conviction but modified the penalty. The Court upheld the legal doctrine that when an unlicensed firearm is used in committing homicide or murder, the offender should be prosecuted only for the special aggravated form of illegal possession under the second paragraph of Section 1 of P.D. No. 1866, not for two separate offenses. This rule treats the situation as a composite crime where the killing is absorbed as an element of the aggravated offense, preventing double jeopardy.
However, the Court found the penalty of death erroneously imposed. The qualifying circumstance of treachery, which attended the killing, was not alleged in the Information for Illegal Possession of Firearm. Under the rules of criminal procedure, qualifying circumstances must be specifically alleged to be validly considered. Since treachery was not pleaded in the Information for Illegal Possession (Criminal Case No. 4039), it could not be used to justify the imposition of the death penalty. The crime was therefore simple aggravated illegal possession of firearm, punishable by reclusion temporal in its maximum period to reclusion perpetua. Applying the Indeterminate Sentence Law and considering the absence of aggravating circumstances, the Court sentenced appellant to an indeterminate penalty of seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as minimum, to reclusion perpetua, as maximum.