MTD for Kimaks
-
Upload
gary-de-gracia -
Category
Documents
-
view
9 -
download
0
description
Transcript of MTD for Kimaks
REPUBLIC OF THE PHILIPPINESNATIONAL CAPOITAL JUDICIAL REGION
REGIONAL TRIAL COURTMANILA
BRANCH XXII
PEOPLE OF THE PHILIPPINES,Plaintiff,
Crim. Case No.: 15-316523
For: Viol. of Sec. 28 (a) of
-versus- R.A. No. 10591
MARK DELA CRUZ Y BARCANCEL@ “MAKOY”
Accused.
x---------------------------------------------------x
MOTION TO DISMISSEx Abudanti ad Cautelam
COMES NOW Accused, by the Undersigned Counsel, unto this Most
Honourable Court most respectfully states that:
1. The Information dated 22 May 2015, charging Accused Mark Dela
Cruz Y Barcancel of violation of Section 28 (a) in relation to Sec 28 (e-1) of Repuclic
Act No. 10591 reads as follows:
“INFORMATION
The Undersigned accuses MARK DELA CRUZ Y BARCANCEL @
“MAKOY” of Violation of Section 28 (a) in relation to Section 28 (e-1) of
Republic Act No. 10591 otherwise known as the Comprehensive Law on
Firearms and Ammunition, comitted as follows:
That on or about May 19, 2015, in the City of Manila, Philippines, the
said accused, then and there willfully, unlawfully and knowingly have in his
possession and under his custody and control one (1) .45 caliber Pistol high
People v. Mark Dela CruzCrim. Case No. 15-316523
cap (trademark CASPIAN) bearing serial no. 767194 marked as “MDCE 5-19-
15” with Magazine marked as “MDCE-1 5-19-15” loaded with three (3) live
ammunitions marked as “MDCE-2 5-19-15 to MDCE-4 5-19-15” without first
having secured the necessary license or permit from the proper authorities.
Contrary to law.”
2. Accused DELA CRUZ was, likewise, charged for Attempted Homicide
before the Metropolitan Trial Court in the City of Manila Branch 19, the relevant
Information thereto is herein attached as ANNEX “A” and states as follows:
“INFORMATION
The Undersigned accuses MARK DELA CRUZ Y BARCANCEL
@ “MAKOY” and FREDERICK BARCANCEL Y POLENDEY @
FREDDIE of the crime of Attempted Homicide, comitted as follows:
That on or about May 19, 2015, in the City of Manila,
Philippines, the said accused, conspiring and confederating
together and mutually helping each other, with intent to kill, did
then and there willfully, unlawfully and feloneously commence the
commission of the crime of homicide, directly by overt acts, to wit:
by then and there holding one VIRGILIO MORILLO Y ROSARIO
on his collar, pointing a gun on his face and pulling the trigger but
said accused did not perform all the acts of execution which should
have produced the crime of homicide by reason of some cause or
accident other than his spontaneous desistance, that is, the gun
jammed and did not fire.
Contrary to law.”
3. Accused MARK DELA CRUZ is charged under the new firearms law,
particularly Sec. 28 par. A in relation to Sec. 28 par. E (1) of Republic Act No. 10591,
2
People v. Mark Dela CruzCrim. Case No. 15-316523
otherwise known as the Comprehensive Law on Firearms and Ammunition which
reads as follows:
REPUBLIC ACT NO. 10591
AN ACT PROVIDING FOR A COMPREHENSIVE LAW ON FIREARMS AND AMMUNITION AND PROVIDING PENALTIES
FOR VIOLATIONS THEREOF
…
SEC. 28. Unlawful Acquisition, or Possession of Firearms and
Ammunition. – The unlawful acquisition, possession of firearms and
ammunition shall be penalized as follows:
(a) The penalty of prision mayor in its medium period shall be
imposed upon any person who shall unlawfully acquire or possess a
small arm;
…
(e) The penalty of one (1) degree higher than that provided in
paragraphs (a) to (c) in this section shall be imposed upon any person
who shall unlawfully possess any firearm under any or combination of
the following conditions:
(1) Loaded with ammunition or inserted with a loaded
magazine;
4. However, by express provision of the same Law, section 29 provides:
SEC. 29. Use of Loose Firearm in the Commission of a Crime. – The use
of a loose firearm, when inherent in the commission of a crime
punishable under the Revised Penal Code or other special laws, shall
be considered as an aggravating circumstance: Provided, That if the
crime committed with the use of a loose firearm is penalized by the law
3
People v. Mark Dela CruzCrim. Case No. 15-316523
with a maximum penalty which is lower than that prescribed in the
preceding section for illegal possession of firearm, the penalty for illegal
possession of firearm shall be imposed in lieu of the penalty for the crime
charged: Provided, further, That if the crime committed with the use of a
loose firearm is penalized by the law with a maximum penalty which is
equal to that imposed under the preceding section for illegal possession of
firearms, the penalty of prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime punishable under the
Revised Penal Code or other special laws of which he/she is found guilty.
If the violation of this Act is in furtherance of, or incident to, or in
connection with the crime of rebellion of insurrection, or attempted coup
d’ etat, such violation shall be absorbed as an element of the crime of
rebellion or insurrection, or attempted coup d’ etat.
If the crime is committed by the person without using the loose firearm,
the violation of this Act shall be considered as a distinct and separate
offense. (Emphasis Supplied)
5. Thus, clear from the letters of Information for the crime of Attempted
Homicide, the use of the firearm, is alleged in the said Information. And said use of
the firearm shall be considered as a generic aggravating circumstance for the crime
of Attempted Homicide by express provision of Section 29 of the new Firearms Law,
Republic Act No. 10591, which uses the mandatory terminology of “SHALL”.
6. And when such use of the firearm is inherently used in the commission
of a crime punishable under the Revised Penal Code, or other spacial law, the
penalty as provided under Section 29 of Republic Act. No. 10591 shall be observed.
7. Also, it is clear that under the last paragraph of Section 29 of the new
Comprehensive Firearms Law, the only instance that violation thereof can only be
4
People v. Mark Dela CruzCrim. Case No. 15-316523
considered as a separate and distinct offense is that, when a crime is committed
without using a loose firearm.
8. And in accordance with the Ruling of the Supreme Court in People of
the Philippines v. Guillermo Nepomuceno Jr., (G.R. No. 130800, July 29, 1999),
which involves a case wherein accused Nepomuceno was charged separately with
the crime of parricide and violation of the Presidential Decree 1866 as amended by
Republic Act. No. 8294, or the then firearms law, the Supreme Court acquited
Nepomuceno in this wise:
Under the old second paragraph of Section 1 of P.D. No. 1866, if the
killing of a person is committed, with the use of the unlicensed firearm,
the accused could be prosecuted for, and convicted of, (1) illegal
possession of firearm in an aggravated form and (2) either murder or
homicide. In People v. Quijada, 8 this Court declared:
The unequivocal intent of the second paragraph of
Section 1 of P.D. No. 1866 is to respect and preserve homicide
or murder as a distinct offense penalized under the Revised
Penal Code and to increase the penalty for illegal possession of
firearm where such a firearm is used in killing a person. Its
clear language yields no intention of the lawmaker to repeal or
modify, pro tanto, Articles 248 and 249 of the Revised Penal
Code, in such a way that if an unlicensed firearm is used in the
commission of homicide or murder, either of these crimes, as
the case may be, would only serve to aggravate the offense of
illegal possession of firearm and would not anymore be
separately punished. Indeed, the words of the subject provision
are palpably clear to exclude any suggestion that either of the
crimes of homicide and murder, as crimes mala in se under the
Revised Penal Code, is obliterated as such and reduced as a
5
People v. Mark Dela CruzCrim. Case No. 15-316523
mere aggravating circumstance in illegal possession of firearm
whenever the unlicensed firearm is used in killing a person.
The only purpose of the provision is to increase the penalty
prescribed in the first paragraph of Section 1 — reclusion
perpetua in its maximum period to reclusion perpetua to death,
seemingly because the accused's manifest arrogant defiance
and contempt of the law in using an unlicensed weapon to kill
another, but never, at the same time, to absolve the accused
from any criminal liability for the death of the victim.
But, pursuant to the amendment, the use of an unlicensed firearm in the
commission of murder or homicide is treated as an aggravating
circumstance. Therefore, the illegal possession or use of the unlicensed
firearm is no longer separately punished. This Court emphatically said so
in People v. Bergante, 9 thus:
The violation of P.D. No. 1866 should have been
punished separately conformably with our ruling in People v.
Quijada. Nevertheless, fortunately for appellant Rex
Bergante, P.D. No. 1866 was recently amended by Republic
Act. No. 8294, otherwise known as "An Act Amending the
Provisions of Presidential Decree No. 1866, as Amended.
The third paragraph of Section 1 of said Act provides that
"if homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance." In short,
only one offense should be punished, viz ., either homicide
or murder, and the use of the unlicensed firearm should
only be considered as an aggravating circumstance. Being
favorable to Rex Bergante, this provision may be given
6
People v. Mark Dela CruzCrim. Case No. 15-316523
retroactive effect pursuant to Article 22 of the Revised Penal
Code, he not being a habitual criminal.
Being clearly favorable to NEPOMUCENO, who is not a habitual
criminal, the amendment to the second paragraph of Section 1 of P.D. No.
1866 by R.A.. No. 8294 should be given retroactive effect in this case.
Considering that NEPOMUCENO was in fact convicted in the case for
parrictide, and that his conviction was affirmed in our decision of 11
November 1998 in G.R. No. 127818, with the slight modification that the
penalty should be reclusion perpetua and not "forty years of reclusion
perpetua," it follows that NEPOMUCENO should be ACQUITTED in the
case at bar. (Emphasis Supplied)
9. And in PEOPLE OF THE PHILIPPINES vs. PO2 ALBERT ABRIOL,
MACARIO ASTELLERO, and JANUARIO DOSDOS, (G.R. No. 123137, October 17,
2001) wherein at the recommendation of the Solicitor General, The Supreme Court
held that the use of an unlicesed firearm in murder or homicide is not a separate
crime and ruled as follows:
“The Office of the Solicitor General recommends that although appellants
were charged with and convicted of two separate offenses of murder and
violation of P.D. No. 1866, R.A. No. 8294, which amended said decree,
should be applied to appellants retroactively, citing People v. Molina, 292
SCRA 742, 779 (1998) interpreting R.A. No. 8294.
We agree. We ruled in Molina that with the passage of R.A. No. 8294
on June 6, 1997, the use of an unlicensed firearm in murder or
homicide is not a separate crime, but merely a special aggravating
circumstance. This was recently reiterated in People v. Castillo, G.R.
Nos. 131592-93, February 15, 2000. Appellants are thus guilty only of
murder with the special aggravating circumstance of use of unlicensed
7
People v. Mark Dela CruzCrim. Case No. 15-316523
firearms. The imposition of the penalty of reclusion perpetua cannot
however be modified since the murder took place before the effectivity of
R.A. No. 7659.” (Emphasis Supplied)
10. Consequently, the Supreme Court laid down the rules in cases of
violation of the the firearms law committed with other crimes in the leading case of
People of the Philippines v. Walpan Ladjaalam, (G.R Nos. 136149-51, September
19, 2000), as reiterated in the recent case of Arnel Sison v. People of the
Philippines, (G. R No. 187229, February 22, 2012)
“Citing People v. Jayson, the OSG argues that the foregoing provision
does not cover the specific facts of this case. Since another crime -- direct
assault with multiple unlawful homicide -- was committed, appellant
cannot be convicted of simple illegal possession of firearms under the
second paragraph of the aforecited provision. Furthermore, since there
was no killing in this case, illegal possession cannot be deemed as an
aggravating circumstance under the third paragraph of the provision.
Based on these premises, the OSG concludes that the applicable law is not
RA 8294, but PD 1866 which, as worded prior the new law, penalizes
simple illegal possession of firearms even if another crime is committed at
the same time.
Applying a different interpretation, the trial court posits that appellant
should be convicted of illegal possession of firearms, in addition to direct
assault with multiple attempted homicide. It did not explain its ruling,
however. Considering that it could not have been ignorant of the proviso
in the second paragraph, it seemed to have construed no other crime as
referring only to homicide and murder, in both of which illegal possession
of firearms is an aggravating circumstance. In other words, if a crime
other than murder or homicide is committed, a person may still be
8
People v. Mark Dela CruzCrim. Case No. 15-316523
convicted of illegal possession of firearms. In this case, the other crime
committed was direct assault with multiple attempted homicide; hence,
the trial court found appellant guilty of illegal possession of firearms.
We cannot accept either of these interpretations because they ignore
the plain language of the statute. A simple reading thereof shows that
if an unlicensed firearm is used in the commission of any crime, there
can be no separate offense of simple illegal possession of firearms.
Hence, if the other crime is murder or homicide, illegal possession of
firearms becomes merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for
illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused.
In this case, the plain meaning of RA 8294s simple language is most
favorable to herein appellant. Verily, no other interpretation is
justified, for the language of the new law demonstrates the legislative
intent to favor the accused. Accordingly, appellant cannot be
convicted of two separate offenses of illegal possession of firearms
and direct assault with attempted homicide. Moreover, since the
crime committed was direct assault and not homicide or murder,
illegal possession of firearms cannot be deemed an aggravating
circumstance.
…
Just as unacceptable is the interpretation of the trial court. We find no
justification for limiting the proviso in the second paragraph to murder
and homicide. The law is clear: the accused can be convicted of simple
9
People v. Mark Dela CruzCrim. Case No. 15-316523
illegal possession of firearms, provided that no other crime was
committed by the person arrested. If the intention of the law in the
second paragraph were to refer only to homicide and murder, it
should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we.” (Emphasis
Supplied)
11. Now, as again quoting, Section 29 of the New Firearms Law, Republic
Act No. 10591, otherwise known as the Comprehensive Law on Firearms and
Ammunition provides that, the use of loose firearm shall be considered as an
aggravating circumstance when crime is committed which is punishable under the
Revised Penal Code or any other Special Law,
12. As in this case, Accused herein MARK DELA CRUZ has been accused
in a separate Information for Attempted Homicide, a crime punishable under the
Revised Penal Code, which such use of an unlicensed firearm is duly alleged in the
said Information for Attempted Homicide.
13. And under the last paragraph of Republic Act No. 10591 which reads,
that if the crime is committed by the person without using the loose firearm, only
then will be that, violation of this Act shall be considered as a distinct and separate
offense.
14. What is at stake in all criminal cases is either the life or, as herein
present, the liberty of a human being in the person of the Accused. Hence,in case
there is a cloud within the letters of the law which places in limbo the life or liberty of
an Accused, then the justice should tilt in favor of the latter as guaranteed and
anchored on the Constitutional Provision on the Presumption of Innocence.
15. Whereas here, Section 29 of Republic Act No. 10591 otherwise known
as the Comprehensive Firearms and Ammunitions Act is clear, that an Acccused
charged with a felony or offense using a loose firearm SHALL only be charged with
the felony or offense thus committed.
10
People v. Mark Dela CruzCrim. Case No. 15-316523
16. Further, such use of a loose firearm SHALL aggravate, in accordance
with the penal provisions of Section 28 of the said law, the felony or offense which
the Accused committed, and this aggravating circumstance is properly alleged in the
Information charging Accused MARK DELA CRUZ in the crime of Attempted
Homicide.
17. In this light, the Republic Act No. 10591 which accuses MARK DELA
CRUZ of the possession of a loose firearm is clear as provided in the foregoing, and
the Supreme Court is consistent that when there is no doubt in the provisions of the
law, there is no room other than its plain interpretation.
18. Verily, as to be consistent with the foregoing laws and prevailing
jurisprudence, a dismissal of the present case would be proper as submitted before
the wisdom of this Honourable Court.
P R A Y E R
WHEREFORE, in view of the foregoing, it is most respectfully prayed of
this Most Honourable Court that the present case be DISMISSED.
Praying, further, for such other reliefs in law and equity.
Manila for Quezon City, 24 September 2015.
The Law Firm of:
DAVID B. AGONCILLOCounsel for Plaintiffs-Appellants
Office AddressNo. 1425-A Pampanga Street
Tondo, ManilaRoll No. 25604
IBP Receipt No. 94947612 November 2015 Manila 4
MCLE Cert. of Comp. No. 111-0005754PTR VC-3371533 12 January 2015
Email address: [email protected] No. 0919-279-7071
11
People v. Mark Dela CruzCrim. Case No. 15-316523
N O T I C E O F H E A R I N G
The Branch Clerk of CourtRegional Trial CourtManila Br. 12
Assistant City ProsecutorCity of Manila
Greetings!
Please take notice that the Undersigned Counsel for the Accused will
submit the foregoing Motion to Dismiss Ex Abudanti Ad Cautelam for the approval of
the same by this Honourable Court on __ October 2015 at 8:30 (A.M.) in the
morning thereof.
DAVID B. AGONCILLO
E X P L A N A T I O N
Copy of this pleading was served through registered mail upon Assistant
City Prosecutor of Manila, for lack of personnel to effect personal service thereof.
DAVID B. AGONCILLO
Copy Furnished:
Assistant City ProsecutorCity of Manila2nd Floor Manila City Hall
12