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SECOND DIVISION

G.R. No. L-37603 March 15, 1982

CONSUELO LAZARO, Petitioners, vs. PEOPLE OF THE PHILIPPINES, HON. ALFREDO C. REYES and FISCAL MANUEL R. MAZA, Respondents.

ERICTA, J.:

In this petition for certiorari and prohibition, the petitioner, Consuelo Lazaro, seeks to annul two Orders of the Circuit Criminal Court stationed at Cabanatuan City, namely. 1) the Order dated February 23, 1973 (Annex "D", petition) denying the petitioner's motion to quash and 2) the Order dated September 11, 1973 (Annex "N", Petition) denying the petitioner's motion to dismiss.chanroblesvirtualawlibrary chanrobles virtual law library

The essential facts are not disputed. On February 8, 1973, the respondent fiscal filed an information (Annex "A", Petition) with the Circuit Criminal Court stationed at Cabanatuan City and presided over by the respondent judge charging the petitioner with parricide and docketed therein as Criminal Case No. CCC-IV-5 (73)-N.E. The information reads as follows: chanrobles virtual law library

That on or about the 20th day of January 1973, at Sto. Domingo St., San Jose City, Republic of the Philippines, and within the jurisdiction of this honorable Court, the accused, CONSUELO LAZARO @ Connie, @ Consuelo Lazaro Pascual, being then the lawfully wedded wife of Arturo D. Pascual, Jr., their marriage having been celebrated and performed on January 20, 1963, at the St. Joseph's Holy Roman Catholic Church of San Jose City, and while said marriage was still valid and subsisting, with the use of a firearm and with intent to kill, did then and there wilfully, unlawfully and feloniously shoot her husband, Arturo D. Pascual, Jr., also known as Junior, inside the bedroom where the spouses aforenamed were then dwelling, thereby hitting and inflicting upon him a gunshot wound at his neck which pierced the neck of the victim thru and thru with entrance located at the back portion of the neck and with the exit located on the front portion of the neck thereby showing that the victim was shot by the accused while said victim's back was towards the accused, resulting in the victim's instantaneous death due to shock as a result of profuse hemorrhage.chanroblesvirtualawlibrary chanrobles virtual law library

That the commission of the offense by the accused was attended by the following aggravating circumstances: (1) treachery; (2) evident premeditation; and, (3) taking advantage of nighttime.

On February 13, 1973, the petitioner, as defendant in said criminal case, filed a motion to quash (Annex "B", Petition) the information on the ground of lack of jurisdiction.chanroblesvirtualawlibrary chanrobles virtual law library

On February 23, 1973, the respondent judge issued an Order (Annex "D", Petition) denying the petitioner's motion to quash and set the arraignment of the defendant (petitioner herein) for March 1, 1973. This is the first Order of the respondent judge that the petitioner seeks to annul in this petition.chanroblesvirtualawlibrary chanrobles virtual law library

As scheduled on March 1, 1973, the respondent was arraigned and pleaded not guilty.chanroblesvirtualawlibrary chanrobles virtual law library

On March 5, 1973, the prosecution staff of the Military Tribunals at Camp Emilio Aguinaldo, Quezon City, advised the respondent judge "that the Military Tribunals have exclusive jurisdiction over the case for violation of General Orders Nos. 6 and 7 in relation to Presidential Decree No. 9 (Illegal Possession of Firearm) and parricide" and reiterated a prior request for "the transfer of the case of Consuelo Lazaro for illegal possession of firearm and parricide" to the Military Tribunals. On the same day, the respondent judge turned over to the Prosecution Staff of the Military Tribunals the records of Criminal Case No. CCC-IV-5 (73)-N.E. which is the parricide case against the petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

On June 14, 1973, the Chief of the Prosecution Staff of the Military Tribunals filed with the Military Tribunals an Amended Charge Sheet charging the petitioner with "Illegal Possession of Firearm used in Parricide" allegedly in violation of Presidential Decree No. 9, par. 1(a) The Charge Sheet reads as follows: chanrobles virtual law library

In that said accused CONSUELO LAZARO, @ CONSUELO LAZARO PASCUAL & CONNIE, a person subject to trial by the Military Tribunals in accordance with General Orders Nos. 8 and 12, dated September 27 and 30, 1972, respectively, of the President of the Philippines, on or about 20 January 1973 at San Jose City, Philippines, and not being allowed or authorized by law to keep, possess and carry firearms, did then and there wilfully, unlawfully and feloniously have in her possession, control and custody a firearm, to wit: chanrobles virtual law library

Caliber .357, Magnum, CTG, Python 356, Revolver, SN-91276 chanrobles virtual law library

without first obtaining the necessary license and/or permit to carry and possess the same, and in connection and by reason of such possession, did, then and there, wilfully, unlawfully and feloniously fire and shoot Arturo D. Pascual, Jr., her lawfully wedded husband, thus inflicting upon the latter wound and injury which caused the death of the latter as a consequence. ¹

The Charge Sheet was docketed as Criminal Case No. MC-1-16.chanroblesvirtualawlibrary chanrobles virtual law library

Upon the amended Charge, the petitioner, as defendant, was arraigned and tried by the Military Tribunal. After trial, the Military Commission No. I found the petitioner guilty of "Illegal Possession of Firearm used in the Commission of Parricide" and sentenced her to the mandatory penalty of death. The decision of the Military Tribunals was sent for review to the Military Board of Review. ² chanrobles virtual law library

The records of the parricide case or Criminal Case No. CCC-IV-5 (73)-N.E. were returned to the Circuit Criminal Court, from where they were borrowed after the termination of Criminal Case No. MC-1-16 of the Military Tribunals. Thereupon, on August 1, 1973, the respondent judge set the trial of the Criminal Case No. CCC-IV-5 (73)-N.E. for September 3, 4, 5, and 6, 1973. ³ On August 27, 1973, the petitioner filed with the Circuit Criminal Court a motion to dismiss (Annex "K", Petition) Criminal Case No. CCC-IV-5 (73)-N.E. on the ground of double jeopardy. On September 11, the respondent judge issued an Order (Annex "N") denying the petitioner's motion to dismiss and setting the case for trial for October 15, 16, 17, 18 and 19, 1973. This is the second Order of the respondent judge that the petitioner seeks to annul.chanroblesvirtualawlibrary chanrobles virtual law library

Hence, the instant petition was filed. This Court issued a temporary restraining Order on October 12, 1973 restraining the respondent judge from acting on the case until further Orders of the Court.chanroblesvirtualawlibrary chanrobles virtual law library

The issues are: chanrobles virtual law library

1. Did the Military Tribunals have jurisdiction to try the petitioner for the offense of "Illegal Possession of Firearm used in Parricide" punishable under Section 1 (a) of Presidential Decree No. 9? chanrobles virtual law library

2. Would the trial of the petitioner in the Circuit Criminal Court under the information for parricide subject her to double jeopardy? chanrobles virtual law library

Under General Order No. 12 issued on September 30, 1972, the Military Tribunals have exclusive jurisdiction over the following cases: chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

8) Those involving crimes constituting violations of the Law on Firearms and Explosives found in the Revised Penal Code and existing laws ... .chanroblesvirtualawlibrarychanrobles virtual law library

x x x x x x x x x chanrobles virtual law library

13) Violations of all decrees, orders, and regulations promulgated by me (Ferdinand E. Marcos) personally or upon my direction pursuant to Proclamation No. 1081 dated September 21, 1972.

The petitioner was accused and tried and convicted under Presidential Decree No. 9 which is a law "declaring violations of General Orders Nos. 6 and 7 ... to be unlawful and providing penalty therefore." General Order No. 6 prohibits the "possessing, keeping or carrying outside of his residence any firearms" unless such person is duly authorized to do so. General Order No. 7 provides that only officers and men of the Armed Forces of the Philippines and police officers in actual mission or duty shall be allowed to carry firearms outside their residence and that guards of private security agencies can carry their licensed firearms only from the premises of the offices of such agencies to their places of work and return.chanroblesvirtualawlibrary chanrobles virtual law library

Section 1, pars. (a) and (b) of Presidential Decree No. 9, provides: chanrobles virtual law library

1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the violator shall, upon conviction suffer:

(a) The mandatory penalty of death by a firing squad or electrocution as a Military Court Tribunal Commission may direct, if the firearm involved in the violation is unlicensed and is attended by assault upon, or resistance to persons in authority or their agents in the performance of their official functions resulting in death to said persons in authority or their agents; or if such unlicensed firearm is used in the commission of crimes against persons, property or chastity causing the death of the victim, or used in violation of any other General Orders and/or Letters of Instructions promulgated under said Proclamation No. 1081; chanrobles virtual law library

(b) The penalty of imprisonment ranging from twenty years to life imprisonment as a Military Court/Tribunal/Commission may direct, when the violation is not attended by and of the circumstances enumerated under the preceding paragraph.

xxx xxx xxx

From the foregoing provisions, it is clear that the crime of illegal keeping, possessing or carrying outside of one's residence of any firearm, whether licensed or unlicensed, prohibited by General Orders Nos. 6 and 7 and penalized by presidential Decree No. 9 is of two categories, namely: (1) qualified illegal keeping, possessing or carrying of firearms defined under paragraph 1 (a) and (2) ordinary or simple keeping, possessing, or carrying of firearm penalized under paragraph 1 (b).chanroblesvirtualawlibrary chanrobles virtual law library

The offense of keeping, possessing or carrying of firearm is qualified if attended by the following circumstances: (1) when the firearm is unlicensed; and (2) when the firearm is used either (a) to commit assault upon or resistance to persons in authority or their agents in the performance of their official functions resulting in death to said persons in authority or their agents or (b) to commit any crime against persons, property or chastity causing the death of the victim or (c) to commit any violation of any other General Orders and for Letters of Instructions promulgated under Proclamation No. 1081.chanroblesvirtualawlibrary chanrobles virtual law library

The offense is simple or ordinary if the keeping, possessing or carrying of the firearm is "not attended by the circumstances enumerated under the preceding paragraph meaning paragraph I (a) of Presidential Decree No. 9.chanroblesvirtualawlibrary chanrobles virtual law library

Whether the offense is qualified illegal keeping, possessing or carrying of firearm or simple or ordinary keeping, possessing or carrying of firearm, the Military Court has exclusive original jurisdiction to try the case pursuant to paragraphs 8 and 13 of General Order No. 12 already quoted above.chanroblesvirtualawlibrary chanrobles virtual law library

In the instant case, the respondent was charged in the Military Court of "Illegal possession of Firearm used in Parricide" punishable under paragraph 1 (a) of Presidential Decree No. 9. In other words, she was charged with qualified illegal possession of firearm for having used said firearm in killing her lawfully wedded husband, Arturo D. Pascual. Hence, the Military Tribunals have jurisdiction of the case pursuant to Sections 8 and 13 of General Order No. 12.chanroblesvirtualawlibrary chanrobles virtual law library

The contention of the respondents that the illegal possession of firearm should be filed with the Military Tribunals while the information for ordinary parricide should be filed with the ordinary civil courts is without merit. This view should be rejected on the following grounds: first, it overlooks the view that parricide is only essential ingredient or a qualifying circumstance of the offense of qualified illegal possession of unlicensed firearm. In the instant case, the use of the unlicensed firearm in committing parricide is an essential ingredient of qualified illegal possession of firearm which is punishable by the mandatory penalty of death. Second, the filing of one separate action for illegal possession of firearm in the Military Courts and another information for parricide in civil courts would result to split jurisdiction and unnecessary duplication of prosecution work.chanroblesvirtualawlibrary chanrobles virtual law library

This is precisely what the Secretary of National Defense and the Secretary of Justice sought to avoid when in a joint circular addressed to all state prosecutors, fiscals and military lawyers dated June, 1973, they issued the following guidelines: chanrobles virtual law library

If a prima facie case is found for crimes within the scope of PD No. 9, (say, possession of unlicensed firearm attended by killing through the use thereof), the findings and recommendations thereon should be submitted through the Judge Advocate General, Armed Forces of the Philippines, through the Secretary of National Defense in accordance with the Circular of the Department of Justice dated November 27, 1972 prescribing guidelines for the implementation of General Order No. 12-A and related general orders. In such case, in order to avoid multiplicity of prosecution, no information should be filed with the civil courts for the attendant crime (like killing) committed through the use of unlicensed firearm which will be utilized as an aggravating circumstance in the proceedings before the Military Tribunals. ⁴chanrobles virtual law library

In connection with the foregoing joint circular, We make the observation that using an unlicensed firearm for killing is not an aggravating circumstance as stated in the joint circular but more correctly a qualifying circumstance or an essential ingredient of the offense of qualified illegal possession of firearm, the presence of which requires the imposition of the mandatory death penalty.chanroblesvirtualawlibrary chanrobles virtual law library

Having resolved the question of jurisdiction in favor of the Military Court, We hold that the Circuit Criminal Court presided over by the respondent judge can no longer proceed to try the parricide case on the merit. The petitioner was already convicted and the penalty of death was already imposed upon her by the Military Tribunals. The case is now set for review by the Military Board of Review. The defendant was accused in the Military Court of "Illegal Possession of Unlicensed Firearm used in committing Parricide". To convict the defendant of said offense, it was necessary to prove that the gun was unlicensed and that the petitioner used the gun in committing parricide. Stated otherwise, parricide had to be proven, as in fact it was proven, to justify the imposition of the death penalty.chanroblesvirtualawlibrary chanrobles virtual law library

The offense of "Illegal possession of Unlicensed Firearm used in Parricide" includes the lesser offense of Parricide. To subject the petitioner Consuelo Lazaro to another prosecution and possible conviction of parricide is to subject her to double jeopardy.chanroblesvirtualawlibrary chanrobles virtual law library

In passing, it may be stated that General Order No. 69 issued after the lifting of Martial Law, and which transferred to civil courts all cases filed with the Military Tribunals does not include: (1) cases undergoing trial in the Military Tribunals and (2) cases pending review. The case of the petitioner is now pending review by the Military Board of Review.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the Order of the lower court dated February 23, 1973 (Annex "D", Petition) denying the motion to quash and the Order dated September 11, 1973 (Annex "N", Petition) denying the motion to dismiss are hereby nullified and Criminal Case No. CCC-IV-5 (73)-N.E. is ordered dismissed. With costs de oficio chanrobles virtual law library

SO ORDERED.

Barredo (Chairman), Aquino, Concepcion, Jr., De Castro and Escolin, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Abad Santos, J. is on leave.

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Endnotes:

1 Annex I, Petition.chanrobles virtual law library

2 Pars. VIII & IX, Petition, pars. VIII & X, Respondent's Answer.chanrobles virtual law library

3 Annex "J", Petition

4 Annex "M", p. 43, Rollo.