Violation of Comelec Resolution No. 8714 in Relation to Sec. 32 & 33 of Ra 7166

Republic of the Philippines
REGIONAL TRIAL COURT
5th Judicial Region
Branch 11
Ligao City

PEOPLE OF THE PHILIPPINES, Plaintiff, CRIM CASE No. 6146

For: VIOLATION OF COMELEC -versus- RESOLUTION No. 8714 in relation to Sec. 32 & 33 of RA 7166
MICHAEL DEL ROSARIO, Accused.

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J U D G M E N T

Accused Michael del Rosario was charged by the Office of the Provincial Prosecutor of Albay for Violation of COMELEC Resolution No. 8714 in relation to Sections 32 & 33 of R.A. No. 7166, in an Information quoted hereunder:

INFORMATION

The undersigned Assistant Provincial Prosecutor of Albay hereby accuses MICHAEL DEL ROSARIO of Amtic, Ligao City for VIOLATION OF COMELEC RESOLUTION NO. 8714 in relation to Sections 32 and 33 of RA 7166, committed as follows, to wit:

“That at about 2:50 o’clock in the morning of February 6, 2010, at Barangay Magurang, Municipality of Polangui, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to violate the law, did then and there wilfully, unlawfully and knowingly bear, carry and possess a deadly weapon (balisong) in a public place, without the necessary permit and authority from the COMELEC to possess and carry the same within the election period, to the damage and prejudice of the public interest.”

ACTS CONTRARY TO LAW.

Ligao City, Albay, Philippines, February 28, 2010.

(Sgd.) VIRGILIO N. ORPIADA, JR. Prosecutor 1 MCLE III-0008894

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Crim Case No. 6146
People vs. del Rosario x--------------------------x The accused was committed to the Polangui District Jail on April 29, 2010. He was arraigned on May 18, 2010 in the dialect known to him with the assistance of his counsel from the Public Attorney’s Office and he pleaded not guilty to the offense as charged which was entered into the records. During the pre-trial conference on June 28, 2010, the admitted fact of both the prosecution and the defense is only the identity of the accused as arraigned. Thereafter, trial on the merits ensued.

EVIDENCE FOR THE PROSECUTION

The prosecution presented four (4) witnesses, namely: PO3 Russel C. Requeza, Wenceslao P. Reyes, Jeheil Navarez and Rodrigo P. Sapo. Their testimonies may be summarized as follows:

At around 2:50 A.M. on February 6, 2010, Jeheil Navarez (Jeheil for short) was awakened by the presence of a thief inside his house. When he called the attention of the thief, the latter immediately jumped out of the window. Jeheil’s brother woke up and both of them searched for the thief who jumped out of the window. They were able to find the thief who was being chased and mauled by many persons who were also victimized by the said thief at Barangay Magurang, Polangui, Albay. Jeheil saw his cellphone in the possession of the thief who was identified as Michael del Rosario, the herein accused. When Police Officer Russel C. Requeza arrived at the place of the incident because of the request for police assistance from a certain Rodrigo P. Sapo, he pacified the bystanders who mauled herein accused and he directed the latter to lift his shirt. It is at this point in time that Police Oficer Russel C. Requeza saw the fan knife (balisong) tucked on the waist of the accused. The latter did not use the fan knife to defend himself from the bystanders who mauled him. Thereafter, the accused was brought to the Polangui Police Station and a corresponding complaint was filed against him. In support of the complaint for the Violation of COMELEC Resolution No. 8714 in relation to Sections 32 & 33 of RA 7166, the prosecution presented a Certification from COMELEC stating that the accused was not authorized to possess or carry a fan knife or “balisong” and the same was testified to by Election Officer III Wenceslao P. Reyes.

EVIDENCE FOR THE DEFENSE

The defense presented its lone witness, the accused himself, as it could not locate a certain Reggie Boy Suarez who appears to be the companion of the accused at the time of the incident. His testimony may be summarized as follows:

Accused Michael del Rosario is a resident of Amtic, Ligao City, Albay. He works as a painter and at the time of the alleged incident, he was contracted to do a painting job for Banco de Oro, Polangui Branch.

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Crim Case No. 6146
People vs. del Rosario x--------------------------x In the evening of February 5, 2010, from their barracks at the construction site, the accused and his co-worker, Reggie Boy Suarez, went to Barangay Magurang, Polangui, Albay to watch the scheduled basketball game. After viewing the basketball game and before going back to their barracks, Reggie Boy Suarez told the accused that they would first go to the house of his uncle situated also at Bgy. Magurang, Polangui, Albay. So, the accused went with Reggie Boy Suarez but he was left behind by the latter at the corner of the street. Only Reggie Boy Suarez reached the house of his uncle. The accused waited for Reggie Boy Suarez at the corner of the street for about 30 minutes. Thereafter, while both of them were already walking towards their barracks, several bystanders chased them and shouted that they are thieves. The accused stopped because he did not know why they were being chased by the bystanders, but unfortunately, he was mauled and he suffered injuries. Reggie Boy Suarez was able to escape. Then, two (2) policemen arrived and pacified the bystanders. The accused was brought to the police station. The following day, he was brought to the Provincial Hospital.

The accused claimed that the cell phone recovered from him was being held by Reggie Boy Suarez and he just borrowed it from the latter because he would like to text somebody. He denied having possessed the fan knife because if ever he has a bladed weapon, he could have defended himself when he was mauled by the bystanders. He doesn’t know who owns the fan knife. He admitted that he is serving sentence for the judgment rendered by the MCTC Polangui – Libon – Oas.

I S S U E

The issue to be resolved in the case at bar is whether or not the accused is guilty beyond reasonable doubt of the crime charged against him.

RULING OF THE COURT

Resolution No. 8714, which was promulgated by the Commission on Elections (COMELEC) on December 16, 2009, provides for rules and regulations on the bearing, carrying or transporting of firearms or other deadly weapons; and the employment, availment or engagement of the services of security personnel or bodyguards, during the election period for the May 10, 2010 national and local elections.

Section 32 of Republic Act No. 7166 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 firearms licenses shall be suspended during the election period.

x x x

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Crim Case No. 6146
People vs. del Rosario x--------------------------x The above provisions clearly include deadly weapons such as bladed instrument. It means that no person is allowed to bear, carry or transport a deadly weapon during the election period, which is from January 10, 2010 to June 9, 2010, in public places such as any building, street, park, private vehicle or public conveyance, unless authorized in writing by the COMELEC.

Section 32 of R.A. No. 7166 is clear and unequivocal 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. x x x 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.

In the case at bar, all of the abovementioned elements are present. The accused was in possession or was carrying a deadly weapon in a public place during the election period. The COMELEC had issued a Certification stating that the accused was NOT authorized by the said office to possess and/or carry a fan knife locally known as “balisong” measuring 8½ long including the handle when open. The accused failed to present any proof that he has the authority from the COMELEC to possess and/or carry the deadly weapon in a public place.

The prosecution has clearly established the guilt of the accused beyond reasonable doubt. There is no qualm that the accused has violated COMELEC Resolution No. 8714 in relation to Section 32 & 33 of R.A. No. 7166.

Furthermore, Section 34 of R.A. No. 7166 provides that the subject firearm or other deadly weapon found in the possession of the person prosecuted for the election offense shall be disposed of according to existing laws. Thus, Article 45 of the Revised Penal Code, as amended, should also be considered in the disposition of this case.

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 forfeiture 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.

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Crim Case No. 6146
People vs. del Rosario x--------------------------x WHEREFORE, in the light of the foregoing, judgment is hereby rendered:

1.) FINDING accused MICHAEL DEL ROSARIO GUILTY beyond reasonable doubt of the crime of Violation of COMELEC Resolution No. 8714 in relation to Sections 32 & 33 of R.A. No. 7166 and thereby sentence him to suffer the penalty of ONE YEAR of imprisonment, not subject to probation; and he shall suffer DISQUALIFICATION to hold public office and DEPRIVATION of the right of suffrage.

2.) ORDERING the confiscation and forfeiture of the subject deadly weapon in favor of the government.

SO ORDERED.

Given and promulgated this 28th day of May, 2012 at Ligao City, Albay, Philippines.

Amy Ana L. de Villa-Rosero Presiding Judge

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[ 1 ]. Rodolfo Abenes vs. CA, G.R. No. 156320, Feb. 14, 2007
[ 2 ]. Exhibit “C”
[ 3 ]. Exhibit “B”