FACTS:

Luisito Gaborne y Cinco (appellant) was charged with Murder with the use of an Unlicensed Firearm and Frustrated Murder. The charges stemmed from an incident on February 2, 2007, wherein appellant, along with two others, allegedly shot Sixto Elizan and Rey Perfecto De Luna at a videoke bar in Barangay Mugdo, Hinabangan, Samar. Elizan died from his injuries while De Luna survived. Appellant denied the accusations and claimed that he was not the one who fired the shots. Appellant and his co-accused were arrested and underwent paraffin tests. The Regional Trial Court (RTC) found appellant guilty of both charges, while his co-accused were acquitted. The Court of Appeals (CA) affirmed the decision of the RTC with modifications on the damages awarded. Appellant appealed the decision of the CA, which was given due course by the Supreme Court. Both parties adopted their respective arguments from their previous briefs in lieu of filing supplemental briefs.

ISSUES:

1. Whether the appellant can question the legality of his arrest for the first time on appeal.

2. Whether the elements of murder and frustrated murder were established.

3. Whether the defense of denial can be given more weight over a witness' positive identification.

4. Whether the positive identification of the eyewitnesses outweighs the defense of denial.

5. Whether the paraffin test is conclusive evidence of the accused's guilt.

6. Whether the corpus delicti of the crime of illegal possession of a firearm was established.

7. Whether the use of an unlicensed firearm can be considered as an aggravating circumstance in the crimes of murder and frustrated murder.

8. Whether the use of an unlicensed firearm in the commission of the crimes of Murder and Frustrated Murder should be considered as an aggravating circumstance thereof.

RULING:

1. The appellant cannot question the legality of his arrest for the first time on appeal. It is required that any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction over the person of the accused must be made before he enters his plea. Failure to do so results in the waiver of the objection. Even if there was an irregularity in the arrest, it is deemed cured by the appellant's voluntary submission to the jurisdiction of the trial court through his active participation in the arraignment and trial of the case.

2. The elements of murder and frustrated murder were established. The circumstances of treachery can be appreciated, qualifying the crime to murder. The elements of murder are: (1) that a person was killed; (2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the Revised Penal Code (RPC); and (4) that the killing is not parricide or infanticide. Treachery exists when the offender employs means, methods, or forms in the execution of the crime that ensure its execution without risk to the offender arising from the defense of the victim. The lower courts also appropriately found the appellant liable for the crime of frustrated murder, as all the acts of execution to produce the crime of murder were performed but did not result in the victim's death due to timely medical attendance.

3. The defense of denial cannot be given more weight over a witness' positive identification. Motive is not synonymous with intent, and motive alone is not proof of guilt. Positive identification by an eyewitness can outweigh the defense of denial. In this case, the appellant was positively identified by witnesses as the person who fired the shots during the incident. The intent to kill was established beyond reasonable doubt based on the appellant's act of shooting the victims from behind while they were innocently singing and drinking, as well as the number of gunshot wounds sustained by the victims.

4. The positive identification of the eyewitnesses carries more weight than the accused's defense of denial. The trial court, being in the best position to observe the demeanor of the witness, evaluated their testimony and found them to be credible. The Court agrees with the lower courts in giving more weight to the positive identification made by the prosecution witnesses.

5. Paraffin tests are not conclusive evidence of guilt. Scientific experts have declared that paraffin tests are extremely unreliable and can only indicate the presence of nitrates or nitrites on the hand, without determining whether it came from the discharge of a firearm. The presence of nitrates should only be taken as an indication, but not infallible proof, that a person has fired a gun. In this case, the positive identification by the eyewitnesses is considered to be more reliable evidence than the negative paraffin test result.

6. The corpus delicti of the crime of illegal possession of a firearm was established through testimony and certification from the Philippine National Police. While the firearm used was not presented as evidence, the existence of the firearm can be established through testimony. The prosecution witnesses testified to the existence of the firearms and the certification proved that the accused was not licensed to possess firearms.

7. The use of an unlicensed firearm can be considered as an aggravating circumstance in the crimes of murder and frustrated murder. Under R.A. No. 1059, the use of a loose firearm in the commission of a crime, such as murder, is considered as an aggravating circumstance. Illegal possession of a firearm is now treated as a special aggravating circumstance and not a separate offense when it occurs in conjunction with murder. The intent of Congress is to treat the offense of illegal possession of a firearm and the commission of homicide or murder with the use of an unlicensed firearm as a single offense.

8. The use of an unlicensed firearm in the commission of the crimes of Murder and Frustrated Murder is considered as an aggravating circumstance.

PRINCIPLES:

• Any objection involving a warrant of arrest or the court's acquisition of jurisdiction must be made before the accused enters his plea, otherwise, it is deemed waived.

• The elements of murder are: that a person was killed; that the accused killed him or her; that the killing was attended by any of the qualifying circumstances mentioned in Article 248 of the RPC; and that the killing is not parricide or infanticide.

• Treachery exists when the offender employs means, methods, or forms in the execution of the crime that ensure its execution without risk to the offender arising from the defense of the victim.

• Frustrated felony occurs when the offender performs all the acts of execution that would produce the felony as a consequence but is prevented from doing so by causes independent of the perpetrator's will.

• Motive alone is not proof of guilt, and positive identification by an eyewitness can outweigh the defense of denial.

• The positive identification of eyewitnesses carries more weight than the defense of denial.

• Paraffin tests are not conclusive evidence of guilt.

• The corpus delicti of a crime can be established through testimony.

• Illegal possession of a firearm can be considered as an aggravating circumstance in the crimes of murder and frustrated murder.

• The use of an unlicensed firearm in the commission of a crime can be considered as an aggravating circumstance.

• R.A. No. 9346 mandates that the penalty of reclusion perpetua without eligibility for parole be imposed on individuals convicted of certain offenses that would have otherwise carried the death penalty.

• In awarding damages in criminal cases, the Supreme Court may modify the amounts based on recent jurisprudence.