G. R. Nos.

102009-10 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE
GRACIA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:

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:

Sec. 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 contingencies 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., Padilla, Puno and Mendoza, JJ., concur.