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HERMOSISIMA, JR., J., concurring:

Murder, most foul for betraying a depraved heart, is the inordinate killing of a human being, unlawfully and with premeditated malice, willfully, deliberately, a felony described in and penalized under Article 248 of the Revised Penal Code.

On the other hand, the unlawful possession of an unlicensed firearm, that artifice consisting essentially of a straight tube to propel a shot, shell or bullet by the explosion of gunpowder, is penalized as the offense of Illegal Possession of Unlicensed Firearm by Presidential Decree No. 1866 of martial law vintage.

Against accused-appellant Daniel Quijada y Circulado were filed the two aforestated cases: Murder, Criminal Case No. 8178 and Illegal Possession of an Unlicensed Firearm, Criminal Case No. 8179 "which firearm was carried by the said accused outside of his residence and was used by him in committing the crime of murder" inviolation of paragraph 2, Section 1, of Presidential Decree (P.D.) No. 1866. After a joint trial, the trial court convicted accused-appellant in both cases and sentenced him to suffer the penalty of Reclusion Perpetua for the crime of Murder and imprisonment a period of Seventeen (17) Years, Four (4) Months and One (1) Day, as minimum, to Twenty (20) Years and One (1) Day, as maximum, for the offense of Qualified Illegal Possession of Unlicensed Firearm penalized under the aforecited P.D. No. 1866.

There is no question that, as found by the majority, the crime of Murder and the offense of Illegal Possession of Firearm had been established by evidence beyond the shadow of doubt.

While the majority affirms the twin conviction of the accused-appellant in both Criminal Case No. 8178 for Murder and Criminal Case No. 8179 for Illegal Possession of an Unlicensed Firearm, the minority asserts the dissenting opinion that, as in People v. Barros, ¹ accused-appellant may only be convicted of the offense of Illegal Possession of Unlicensed Firearm inits aggravated form, inferring that the crime of Murder has been absorbed by that offense or rather that the two (2) crimes may be said to have been complexed with each other.

While the teleological debate on whether criminal punishment is justified as retribution or as reformation continually rages, hardly disputable is the static view and unchanged reality that the primordial justification for punishing any man isthat he has broken the law. While in Anglo-American jurisdictions, there exist what are known as common law offenses, in our jurisdiction, no act is a crime unless it is made so by statute. ² Every law enacted by the legislature for the restraint and punishment of crimes and for the preservation of the public peace, health and morals comes within the police power of the State. ³cräläwvirtualibräry

"The right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs to the sovereign power instinctively charged by the common will of the members of society to look after, guard and defend the interests of the community, the individual and social rights and the liberties of every citizen and the guaranty of the exercise of his rights. ⁴cräläwvirtualibräry

In the exercise of its right, duty and power to determine and define crimes and their corresponding penalties, the lawmaking body is initially and usually guided by the general condition of penal liability under the legal maxim, "actus non facit reum, nisi mens sit rea," which, if freely translated, means that "an act is not criminal unless the mind is criminal." On the basis of this, which is commonly known as the mens rea doctrine, our Revised Penal Code was enacted to largely penalize unlawful acts accompanied by evil intent which are denominated en masse as crimes mala in se. The paramount consideration here is the existence of a malicious intention borne out by the concurrence of freedom, intelligence and intent which altogether make up the "criminal mind" behind the resultant criminal act."

It is not always, however, that the evil to society anent a criminal act depends upon the state of mind of the offender. And no less valid, critical and indispensable is the prerogative of the legislature, through special enactments, to forbid the doing of a particular act and legislate the commission of such act to be a crime, regardless of the intent of the doer.

"In many crimes, made by statutory enactment, the intention of the person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially worthless. It would be impossible of execution. In many cases the act complained of is itself that which produces the pernicious effect which the statute seeks to avoid. In those cases, the pernicious effect is produced with precisely the same force and result whether the intention of the person performing the act is good or bad. x x x It is quite different from that large class of crimes, made such by the common law or by statute, in which the injurious effect upon the.public depends upon the corrupt intention of the person perpetrating the act." ⁵cräläwvirtualibräry

In general, it may be said that there must be malus animus or a criminal intent. But there is also a class of crimes known as crimes mala prohibita which, on the broad grounds of public policy, criminalize certain acts without the usual requisite proof of the intent of the actor to commit the crime.

"In the case of The State vs. McBrayer (98 N.C, 623) this court stated:

It is a mistaken notion that positive, willful intent to violate the criminal law is an essential ingredient in every criminal offense, and that where there is an absence of such intent there is no offense; this is especially true as to statutory offenses. When the statute plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates. When the language is plain and positive, and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation.

xxx xxx xxx

Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. The accused did not consciously intend to commit a crime; but he did intend to commit an act, and that is, by the very nature of things, the crime itself-intent and all. The working of the law is such that the intent and the act are inseparable. The act is the crime." ⁶cräläwvirtualibräry

Indeed, to distinguish between crimes mala in se and mala prohibita by simply pointing out that the former refer to felonies in the Revised Penal Code while the latter are punished under special laws, does not amount to much, for there are indeed felonies that are penalized regardless of the felon's criminal intentions, and conversely, there are also special offenses that require proof of criminal intent.

Whether or not in a given case the statute is to be construed as forbidding the doing of an act and criminalizing the same without regard to the intent of the perpetrator of the act, is to be determined by the court by considering the subject matter of the prohibition as well as the language of the statute, thereby ascertaining the intention of the lawmaker. The index of whether or not a crime is malum prohibitum is not its form, that is, whether or not it is found in the Revised Penal Code or in a special penal statute, but the legislative intent that underlies its continuing existence as part of the law of the land.

"Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is." ⁷cräläwvirtualibräry

In this light, we have not just a few times precisely delineated the malum prohibitum nature of P.D. No. 1866, which is a codification of the laws on unlawful possession of unlicensed firearms, among others.

As has been aforesaid, in determining whether or not an offense is malum prohibitum or not, the relevant inquiry must concern the legislative intent as to the requirement of criminal intent or lack thereof. In this respect, the discussion of Justice Regalado in People vs. De Gracia ⁸ is appropriate:

"The first issue to be resolved is whether or not intent to possess is an element of the offense punishable under Presidential Decree No. 1866 and, if so, whether appellant x x x 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 x x x.

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, in which case good faith and absence of criminal intent are not valid defenses.

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.

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. 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." ⁹cräläwvirtualibräry

In its enactment, P.D. No. 1866 was undoubtedly intended as a substantial measure in response to the perennial problem of law enforcement and public order and safety. Thus, we always pointed out that P.D. 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, which crimes have resulted in loss of human lives, damage to property and destruction of valuable resources of the country. ¹⁰cräläwvirtualibräry

The aforecited public policy concern justified the blanket prohibition in P.D. No. 1866 against mere possession of unlicensed firearms, among others, without regard to the criminal intent of the possessor. Indeed, what is being punished is the illegal possession, among others, of unlicensed firearms.

"What the decree does is to define the offense and provide for the penalty that may be imposed, specifying the qualifying circumstances that would aggravate the offense. There is no encroachment on the power of the court to determine after due hearing whether the prosecution has proved beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the qualifying circumstances attached to it has been established also beyond reasonable doubt as the Constitution and judicial precedents require." ¹¹cräläwvirtualibräry

Insofar as material to the present case, what is penalized is the sole, simple act of a person who shall, among others, it unlawfully possess any firearm." The gravamen of the offense is the fact of possession of a firearm without a license or authority for such possession. ¹² It is only the offense of Illegal Possession of Unlicensed Firearm that is, in the corporeal and material sense, provided for and defined in Section 1 of P.D. No. 1866. The penalty therefor, however, is another matter.

It is undisputed that P.D. No. 1866 was validly enacted in 1983 in the exercise of legislative powers by then President Marcos under the 1973 Constitution, which powers inherently included the prerogative to prohibit certain acts perceived by the lawmaker to be substantially prejudicial to the public interest. Thus, Section 1 forbids the possession by any person of a firearm for which he does not have the proper license and/or authority. The sole act forbidden, prohibited and thereby criminalized is the illegal possession of an unlicensed firearm. That is all. However, while the offense penalized is singular, the penalties for such offense are plural and are distinguished from each other by certain circumstances which the lawmaker considered to be valid reasons to impose penalties heavier than the others. Thus, as a whole, the pertinent portion of said decree provides to wit:

"Section 1. Unlawful manufacture, Sales, 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 firearm, 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 crimes of rebellion, insurrection, or subversion, the penalty of death shall be imposed.

xxx xxx xxx" ¹³cräläwvirtualibräry

The circumstances (1) that homicide or murder is committed with the use of an unlicensed firearm and (2) that the illegal possession of unlicensed firearm is committed in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, only qualify or aggravate the offense of Illegal Possession of Unlicensed Firearm for purposes of increasing the penalty therefor. These circumstances do not create another offense or a special kind of illegal possession or another form of illegal possession. When either of such circumstances is attendant under the premises of a case, such circumstance only authorizes and justifies the imposition of a higher penalty. It only has the effect of upgrading the penalty and not of supplying an additional, separate element of a new or another offense. Thus, there is no such thing as a special complex crime of illegal possession of unlicensed firearm used in homicide, ¹⁴ or murder for that matter. Neither could we have conceived what we have been calling the aggravated form of illegal possession ¹⁵ or qualified illegal possession, ¹⁶ to be a separate, distinct and independent offense from illegal possession without any qualifying circumstance. Even Justice Regalado concedes in his Separate Opinion in People v. Barros ¹⁷ that "the nomenclature of aggravated illegal possession is used just for expediency, in the same manner as that of 'qualified rape' under Article 335 when the sexual assault is attended by the circumstances therein which result in increase penalties."

In People v. Barros, ¹⁸ we were mainly concerned with the issue as to whether or not, whenever a killing is effected with the use of an unlicensed firearm, the malefactor should be punished separately for both offenses, with the unlawful taking of life to be proceeded against under the corresponding provision of the Revised Penal Code and the illegal possession of the firearm under P.D. No. 1866. There, we decided that said malefactor ought only to be punished for qualified illegal possession of firearm essentially because the two crimes are not altogether separate or disconnected from each other both in law and in fact and could thus be viewed as a situation bordering close to or approximating the concept of complex crime proper and/or as a situation where the graver offense (of qualified illegal possession) can be said to have absorbed the lesser offense (of homicide or murder) which constitutes the essential element siring the so-called "capital offense of the aggravated form of illegal possession."

There is no time more appropriate to re-examine the Barros ruling than now, for to persist in it would result in an absurd situation that cannot be justified even under the hallowed principle of stare decisis.

Merely that two crimes are not altogether separate or disconnected from each other both in law and in fact, is of no moment. In the first place, should they in law and in fact be altogether separate or disconnected from each other to foreclose their absorption into or complexing with, each other? In the second place, that very statement provides a basic presumption and reality that must be fully understood insofar as its implications and consequences are concerned. They are precisely two crimes, and these two crimes are punished under two separate, distinct and independent laws. Punishment is a corollary of lawbreaking by a member of society whose law is broken. ¹⁹ In this case, there are two separate laws involved, two separate crimes punished by two laws, and two counts of breaking the law constituting two crimes for which two separate penalties are provided. Concededly, accused-appellant performed only one action which was made basis for two Informations each charging a distinct offense. But it is also a well-established rule in this jurisdiction that

"a single act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewise, where two different laws (or articles of the same code) define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other." ²⁰cräläwvirtualibräry

Where there are, as in this case, two crimes punished by two distinct laws enacted for absolutely different purposes, and both laws are clear and unambiguous, and no absurdity or unreasonableness is evident from the application of both, it is not the proper function of the court to change or alter in any way the state of things thereunder. That it is desirable, equitable, wise, humane or charitable to find a way to decrease the penalty or avoid imposition of the penalties under the two laws, is not denied, but at most we can only "legislate interstitially x x x confined from molar to molecular motions" ²¹ and clear up ambiguities or fillin the gaps. Gaps in our conscience and our personal convictions must be found and provided some other legitimate channel for expression and realization.

The law on complex crime proper is not applicable here. One of the reasons often cited in proscribing complexing a crime under the Revised Penal Code and an offense under a special law is that the latter is not punishable by a penalty divisible into periods. Now following our ruling in People vs. Simon, ²² the suppletory effect of the Revised Penal Code upon P.D. No. 1866 is now starkingly broadened because though it is a special penal law, the penalties provided therein are actually taken from the Revised Penal Code in their technical nomenclature, duration, correlation and legal effects, such that the same treatment as that respecting Revised Penal Code penalties may now be given to penalties under certain special laws.

However, notwithstanding the import of our ruling in the said case of People v. Simon, it still cannot be said that there is no longer any obstacle in complexing murder with qualified illegal possession because the very essence and nature of each of these crimes remains unchanged and unaffected. Murder, or for that matter, homicide, remains distinct from the crime of Illegal Possession of Unlicensed Firearm where the firearm is used in perpetrating the killing. The defendant in such cases committed two different acts with two separate criminal intents, to wit, the desire to take unlawfully the life of a person and the sheer violation of the law which prohibits the possession of a firearm without the required permit. ²³ In other words, there is in this instant case a case of plurality of crimes where accused-appellant performed one act which resulted in two different crimes penalized under two separate laws which have distinct purposes and are independent from each other.

Neither does the doctrine of absorption obtain in this case. For absorption to take place under the circumstances thereof, there must be two materially distinct and separate offenses involved -- murder and what has been referred to as the capital offense of the aggravated form of illegal possession of unlicensed firearm. As has been explained hereinabove, however, the offense defined in Section 1 of P.D. No. 1866 is plainly, simply illegal possession of unlicensed firearm. The circumstance of homicide or murder only operates to upgrade the penalty for the offense of illegal possession of unlicensed firearm and does not as it has not been intended to, sire and penalize a second offense or the so-called capital offense of the aggravated form of illegal possession of unlicensed firearm. The offense of illegal possession, as such, in turn, cannot validly absorb murder or homicide because the latter is not an element of the former. Nothing more indubitably evidences the intent of the legislature to maintain the integrity and effectivity of the penal provision for murder and homicide, on the one hand, and of Section 1 of P.D. No. 1866, on the other, than the very pertinent provision of said decree which neither created any special complex crime nor amended nor repealed the provisions on murder or homicide nor defined a separate offense of an aggravated form of illegal possession.

We are not unaware of the fundamental legal principle that every doubt in the construction of a criminal statute should be resolved in favor of any person accused of a crime. To mete out a lesser penalty is certainly favorable to an accused; such, however, presupposes the existence of some doubt in the application of the law pertinent to his circumstances. In the instant case, there is no ambiguity, ambivalence, confusion, doubt or question respecting the applicable laws. The penalties provided for by the Revised Penal Code for the crime of Murder and by P.D. No. 1866 for the offense of Illegal Possession of Unlicensed Firearm are not under attack. And it could not also be said that the application of said laws and the imposition of said penalties bring about an undeniable situation characterized by such absurdity, unreasonableness, and socially, morally or philosophically virulent consequences as to justify the utter disregard of said laws and their substantive provisions regarding penalties. Certainly, there must be a limit to what the court may do to remedy what it perceives as a difficult but avoidable situation. The consequences of the application of our valid, subsisting laws, after all, do not always have to satisfy our own standards of what is just and fair.

Finally, with the enactment of Republic Act (R.A.) No. 7659 ²⁴ reimposing the death penalty for certain heinous crimes, an anomalous situation may emerge in our midst if we apply Barros . Said Act enumerated particular crimes under the Revised Penal Code and specific offenses under special laws that shall henceforth contain provisions imposing the death penalty under certain circumstances. One of the crimes enumerated thereunder is Murder, which may now be punished by death. ²⁵ The death penalty may now also be meted out in, among others, the case of drug-related crimes as provided for in the Dangerous Drugs Act of 1972 ²⁶ and the crimes provided for in the Anti-Carnapping Act of 1972. ²⁷cräläwvirtualibräry

Of utmost significance is the fact that not included in the enumeration of special offenses where the death penalty has been revived, is P.D. No. 1866. R.A. 7659 being a penal statute which must, as a rule, be strictly construed against the State, the inescapable and inevitable conclusion is that Congress, in enacting R.A. No. 7659, did not intend to revive the death penalty provision found in the second and third paragraphs of Section 1 of P.D. No. 1866.

The foregoing makes for a tremendous import. On the one hand, were we to insist that murder may be complexed with or absorbed by illegal possession of unlicensed firearm where said firearm is used in the commission of murder or homicide, a person convicted for said offense may only be punished with a penalty no higher than reclusion perpetua since R.A. No. 7659 did not revive the death penalty provision in Section 1 of P.D. No. 1866. On the other hand, a person who has used a licensed firearm in committing murder may be punished with death if there were sufficient aggravating circumstances attendant in the killing, since R.A. No. 7659 restored the death penalty for the crime of murder. No much deeper analysis is needed to realize that an anomalous, absurd situation confronts us where the use of an unlicensed firearm in killing is rewarded by a lesser penalty. Herein lies real injustice. And we cannot scale down this resounding message which indifference on our part would impart: if "would be" criminals were to kill, they ought to kill with unlicensed firearms so that they will fall within the purview of P.D. No. 1866 with respect to which the death penalty has not been restored and not within the provisions of the Revised Penal Code for murder, for then depending upon the nature and number of the aggravating circumstances that may attend such crimes, they face the possibility of being sentenced to death, an eventuality that could never be under P.D. No. 1866.

Certainly, we cannot close our eyes to this absurd situation, and it will be irresponsible of us to allow the absurdity to persist. We should not stubbornly cling to the illusion that murder and illegal possession of unlicensed firearm used in murder may be complexed with each other or absorbed into each other. Anyway, they are not so disconnected from each other that doing so would translate into a lower penalty. For us to cling to such an illusion would be tantamount to a complete disregard of legal concepts and principles in the realm of crime and punishment that has remain good, sound, valid law.

WHEREFORE, the conviction of the accused by the court a quo of the two (2) crimes aforesaid, that is, for Murder and Illegal Possession of Unlicensed Firearm, should be, as it is, affirmed.