While the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of the petitioner, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned.[24]
Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner was carrying a firearm without prior authority, license or permit, the latter must be exculpated from criminal liability under P.D. No. 1866, as amended.
With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as amended, otherwise known as the Omnibus Election Code, the Court is constrained to affirm the conviction of the petitioner, since the prosecution successfully discharged its burden of proof.
Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded, provides:
Sec. 261. Prohibited Acts. – The following shall be guilty of an election offense:
(q) Carrying firearms outside residence or place of business. – Any person who, although possessing a permit to carry firearms, carries any firearms outside his residence or place of business during the election period, unless authorized in writing by the Commission: Provided, That a motor vehicle, water or air craft shall not be considered a residence or place of business or extension hereof.
x x x x (Emphasis supplied)
Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the Omnibus Election Code, provides:
SEC. 32. Who May Bear Firearms. – During the election period, no person shall bear, carry or transport firearms or other deadly weapons in public places, including any building, street, park, private vehicle or public conveyance, even if licensed to possess or carry the same, unless authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during the election period. (Emphasis supplied)
In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866, as amended, the burden to prove the negative allegation that the accused has no license or permit to carry a firearm lies with the prosecution; under the Omnibus Election Code, however, the burden to adduce evidence that accused is exempt from the COMELEC Gun Ban, lies with the accused.
Section 32 of R.A. No. 7166 is clear and unequivocal[25] that the prohibited act to which this provision refers is made up of the following elements: 1) the person is bearing, carrying, or transporting firearms or other deadly weapons; 2) such possession occurs during the election period; and, 3) the weapon is carried in a public place. Under said provision, it is explicit that even if the accused can prove that he is holding a valid license to possess such firearm, this circumstance by itself cannot exculpate him from criminal liability. The burden is on the accused to show that he has a written authority to possess such firearm issued by no less than the COMELEC.
On this point, the petitioner failed to present any form of such authority, and, therefore, his conviction must be affirmed.
Section 264 of the Omnibus Election Code provides:
Sec. 264. Penalties. – Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served.
The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply Section 1 of the Indeterminate Sentence Law[26] which provides:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.
Thus, the penalty that should be meted out to petitioner should have a minimum and a maximum period. The Court deems it reasonable that petitioner should suffer imprisonment for a period of one (1) year as the minimum and two (2) years, as the maximum.
Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be disposed of according to existing laws, which, in this case, must be read in light of Article 45 of the Revised Penal Code, to wit:
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.— Every penalty imposed for the commission of a felony shall carry with it the forefeiture of the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.
http://sc.judiciary.gov.ph/jurisprudence/2007/feb2007/156320.htm#_ftn17
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