By mandate of Article 47 of the Revised Penal Code, as amended by Section 22, Republic Act No. 7659, otherwise known as the Death Penalty Law, this Court is called upon to discharge its duty to review the death sentence imposed upon accused-appellant by Branch 2 of the Regional Trial Court of the First Judicial Region stationed at the Bangued, Abra for the charge of illegal possession of firearms under Section 1, of Presidential Decree 1866, in an Information reading as follows:

That on or about January 25, 1997, between 5:00 P.M. and 6:00 P.M., at Barangay Sta. Rosa, Municipality of Bangued, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the said accused, a person not authorized to possess firearm, did then and there wilfully, unlawfully and feloniously possess and shoot IRENEO P. JIMENEZ, JR., with an unlicensed Homemade gauge 12 shotgun (recovered), thereby inflicting gunshot wound on the chest right side of the said victim which caused his instantaneous death, to the damage and prejudice of the heirs of the offended party and, without first securing the necessary license or permit to possess or carry firearm from the firearms and explosive office of the Philippine National Police.

CONTRARY TO THE PROVISION of Section 1 of P.D. 1866, as amended.

(Record, p. 1)

The antecedent facts are summarized in the People's Brief in this wise:

On January 25, 1997, at around 5:00 to 6:00 o'clock in the evening, appellant entered the yard of the house of Ireneo Jimenez, Jr. which is located at Sta. Rosa, Bangued, Abra.  Appellant, while holding a shotgun wrapped with a denim jacket and with only the muzzle of the gun, measuring about one foot, exposed, went to Ireneo, who was then pulling a sack of animal feeds out of a storeroom, and asked him where his (Ireneo) brother, Julian, was, to which question Ireneo answered "I do not know." Appellant repeated this question two more times with Ireneo giving the same answers.  Thereupon, after Ireneo had untied the knot which bound the sack and while he was standing up, appellant pointed the shotgun he was holding at Ireneo and fired the same.  After being hit in the right chest, Ireneo fell dead on the ground.  Thereafter, appellant aimed the shotgun at Mercy, Ireneo's wife, who at that time was behind Ireneo because she was helping Zenaida Viado in hanging the day's wash nearby.  This made Mercy, who witnessed the shooting, scream and run away, and ask for help from his neighbors.  Zenaida, who was about six meters away from appellant and who also witnessed the shooting incident, likewise ran away.  (TSN, May 19, 1997, pp. 3-10 and 16-18; June 4, 1997, pp. 11-17)

Thereafter, appellant rode an owner-type jeep and drove the same towards north, passing by the house of Amante Fier which is located at Zone 4, Bangued, Abra.  Moments after the vehicle passed by, Amante and his son Paolo heard a loud bumping noise. When he proceeded to the place where the sound came from, Amante saw appellant holding a long firearm while trapped inside the jeep which crashed.  Amante left and when he returned appellant was already lying on the street.  However, Amante did not see anymore the firearm which appellant had earlier. (TSN, June 24, 1997, pp. 3-8)

Freddie Bernal, who also heard a loud noise while he was at his house located at Zone 2, Bangued, Abra, went to the place where the owner-type jeep crashed and saw a shotgun inside the jeep.  Freddie told SJO3 Efigenio Barbosa about the shotgun and, upon the latter's instruction, took the shotgun from the jeep and handed the same to SJO3 Barbosa at his house.  Later, SJO3 Barbosa gave the shotgun to Senior Inspector Robert Mesa, the Chief of Police of Bangued, who turned over the same to SPO1 Odilon Aspacio, the investigating officer of the shooting incident, who then tagged the firearm, which turned out to be a homemade 12 gauge shotgun with its stock missing (Exhibit D), and engraved his initials, "ORA," and the date, "1-25-97," near the trigger. (TSN, May 19, 1997, pp. 29-31; June 4, 1997, pp. 5-9; TSN, June 24, 1997, pp. 13-16 and 21-26; Exhibit D-2.)

Dr. Pedro Ascaño, the Rural Health Physician of Bangued who conducted the autopsy of the cadaver of Ireneo later in the evening of January 25, 1997, declared that Ireneo died due to "hypovolemic shock secondary to gun shot wound," and that the firearm used in inflicting the wound could have been a shotgun.  This is so because, while Ireneo's cadaver had one gun shot wound with one point of entry, the said wound had two points of exit.  Also, four slugs were recovered from the cadaver. (TSN, May 8, 1997, pp. 5-16, Exhibit A.)

According to the certification issued by SPO4 Napoleon Pascual, Chief of Firearm and Explosive Section of the Abra Provincial Command, appellant is not a licensed firearm holder and that the 12 gauge homemade shotgun used by appellant in shooting Ireneo is not a licensed firearm. (TSN, May 19, 1997, pp. 22-24, Exhibit E.)

At the time of his death, Ireneo, who was 39 years old, was earning an annual income of P60,000.00 as a Barangay Councilman and while attending to the family store and raising pigs.  Mercy Jimenez, the widow, spent around P37,041.00 for the wake and interment of Ireneo.  She also suffered extreme sorrow as a result of Ireneo's death.  (TSN, June 4, 1997, pp. 18-19; Exhibits F and G and their sub-markings.)

(Rollo, pp. 89-92.)

From the foregoing facts, the trial court rendered the judgment of conviction, thusly:

WHEREFORE, the Court finds the accused Mario Adame alias "Cobra" guilty beyond reasonable doubt of the crime of aggravated illegal possession of firearm for killing with an unlicensed firearm the victim Ireneo Jimenez, Jr. defined and penalized under Sec. 1 of PD No. 1866 as specified in the beginning of this decision in relation to Art. 47 and 62 of the Revised Penal Code as amended by Secs. 22 and 23 of Rep. Act No. 7659, respectively, with all the attending aggravating circumstances of treachery, abuse of superior strength and dwelling without any mitigating circumstance and sentences him to suffer the extreme penalty of DEATH.  He is ordered to pay the family of the victim the amounts of P50,000.00 for the death of the latter; P37,041.00 as actual expenses incurred during the wake and interment of the deceased, P500,000.00 in unearned income and P300,000.00 in moral and exemplary damages and to pay the costs of this suit.

SO ORDERED.

(Record, pp. 213-214.)

In the automatic review of this case, appellant assigns the following errors:

I
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF VIOLATION OF SECTION 1, OF PD1866 IN ITS AGGRAVATED FORM.

II
ON THE ASSUMPTION THAT ACCUSED-APPELLANT COMMITTED THE ACTS COMPLAINED OF, THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF AGGRAVATED ILLEGAL POSSESSION OF FIREARMS AND IN IMPOSING THE DEATH PENALTY.

Partly, the Court agrees with accused-appellant for, indeed, the trial court erred in convicting him under Section 1 of Presidential Decree No. 1866.  The alleged crime of illegal possession of firearm in its aggravated form was committed on January 25, 1997, at which time, it was punishable with the extreme penalty of death under Section 1 of Presidential Decree 1866.  Effective July 6, 1997, however, this law was amended by Republic Act No. 8294,  Section 1 of which, in part, provides:

If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed shall be considered as an aggravating circumstance.

Beginning aforesaid date, no separate and independent criminal liability for violation of Presidential Decree No. 1866 attaches when a person commits murder or homicide using an unlicensed firearm.  Therefore, under the present law, as amended, the separate charge of illegal possession of firearm no longer has any legal basis or ground.  To be sure, no court can convict a person of a crime which no longer exists even though that person may have committed acts which were punishable at the time such acts were perpetrated.  In People vs. Valdez (304 SCRA 611 [1999]), we held:

. . . Insofar as it will spare accused-appellant in the case at bar from a separate conviction for the crime of illegal possession of firearms, Republic Act No. 8294 may be given retroactive application in Criminal Case No. U-8749 (for Illegal Possession of Firearm), subject of this present review.

(p. 630.)

Considering,  thus, that there is no separate crime of illegal possession of firearm in this case, as also ruled earlier in People vs. Molina (292 SCRA 742 [1998]), and reiterated in People vs. Feloteo (295 SCRA 607 [1998]), should accused-appellant be, therefore, acquitted and set free in this case?

The Court rules in the negative.

A perusal of the Information captioned for the charge of illegal possession of firearm clearly shows that it charged acts constituting the crime of simple homicide, to wit: "That on or about January 25, 1997..., the said accused, a person not authorized to possess firearm, did then and there wilfully, unlawfully and feloniously possess and shoot IRENEO P. JIMENEZ, JR., with an unlicensed Homemade gauge 12 shotgun (recovered), thereby inflicting gunshot wound on the chest right side of the said victim which caused his instantaneous death, to the damage and prejudice of the heirs of the offended party... (Rollo, p. 6; Emphasis supplied).

Provided there is proof beyond reasonable doubt that accused-appellant committed the acts constituting the crime as alleged in said Information, he can be convicted of the crime of homicide despite the fact that the original charge intended was one for violation of Presidential Decree 1866. This is not violative of his constitutional right to be informed of the charge against him.  In People vs. Mabag (98 SCRA 730 [1980]), we ruled:

It has been held, however, that if the above requirement (Rule 110, Sec. 7, Rules of Court) is not complied with and no name has been given to the offense alleged to have been committed, the defect is merely of form which does not prejudice the substantial rights of the defendant. This is especially so where the facts pleaded are clearly constitutive of a specific offense.  In such cases, the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of the law alleged to have been violated, but by the facts recited in the complaint or information.  This is so because 'from a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged.  It in no way aids him in his defense on the merits . . . . The real, question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth.  If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute . . . In the designation of the crime, the accused never has a real interest until the trial has ended.  For his full and complete defense he need not know the name of the crime at all.  It is of no consequence whatever for the protection of his substantial rights . . . It is the province of the court alone to say what the crime is and what it is named.' Accordingly, the accused will not be permitted 'to stand by and watch the fiscal while he guesses as to the name which ought to be applied to the crime with which he charges the accused, and then take advantage of the guess if it happens to be wrong, while the acts and omissions upon which that guess was made and which are the only real foundation of the charges against him are clearly and fully stated in the information.' Otherwise, it would 'change the battleground in criminal cases from issues to guesses and from facts to fancy.' (IV Moral, Rules of Court, pp. 22-23, 1970 ed.)

(p. 747. )

There is no doubt that accused-appellant killed Ireneo Jimenez, Jr.  Indeed, he admitted having done so.  His defense, however, is that the shotgun accidentally discharged while he and the victim were grappling over it.  His version is, however, incongruent with the physical evidence as well as the direct and straightforward testimony of the eyewitnesses.  The Court gives great weight to the factual findings of the trial court in this regard.  There is no other alternative but to lay the responsibility for Ireneo's death upon accused-appellant.

Treachery, though duly established by the evidence, nonetheless can not qualify the killing to constitute the crime of murder because this was not alleged in the Information as such.  It may be appreciated as a mere generic aggravating circumstance.  As correctly pointed out in the brief submitted by Solicitor General Ricardo P. Galvez, Assistant Solicitor General Magdangal M. de Leon, and Solicitor Eric Remigio O. Panga,  therefore, "appellant committed the crime of homicide with the aggravating circumstance of treachery.  For, from the positive and categorical testimonies of Mercy Jimenez and Zenaida Viado, it is clear that - when appellant shot to death the unarmed Ireneo at the right chest, without any provocation, and while Ireneo was standing up - the killing was attended by the aggravating circumstance of treachery.  It is settled that an unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack constitutes alevosia.  The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person attacked" (Rollo, p. 94).

The finding that accused-appellant intentionally and purposely sought this circumstance to obviate any defense that may be put up by the victim is further bolstered by the fact that accused-appellant kept his firearm concealed by a jacket, thereby not affording the victim any opportunity to become suspicious of any impending assault. The two conditions which must concur before treachery may be appreciated, as we applied in People vs. Porras (255 SCRA 514 [1996]), are present in this case, viz: (a) the employment of means of execution that give the persons attacked no opportunity to defend himself or to retaliate, and (b) that said means of execution be deliberately and consciously adopted.

The Court, however, disagrees with the Office of the Solicitor General that the crime is further aggravated the use of an unlicensed firearm.  While it is true that under the express provisions of Republic Act 8294, the use of an unlicensed firearm aggravates the crimes of homicide or murder, the provisions of the said law cannot apply to the case at bar because the crime was committed prior to the effectivity of the said law.  As we held in Valdez, supra, while the provisions of Republic Act No. 8294 may be applied retroactively so as to prevent conviction of the separate crime of illegal possession of firearm because this accrues to the benefit of the accused, it cannot, however, be applied retroactively so as to aggravate the crimes of homicide or murder.

For the penalty, Article 249 of the Revised Penal Code provides:

Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

With one aggravating circumstance of treachery and the absence of any mitigating circumstance, the penalty of reclusion temporal shall be imposed in its maximum term. Applying the indeterminate sentence law, the imposable penalty is prision mayor in its maximum period, as the minimum, to reclusion temporal in its maximum period, as the maximum, or 10 years and 1 day, as minimum, to 17 years, 4 months, and 1 day, as maximum.

With regard to civil damages, Ireneo's heirs should be awarded P50,000.00 as civil indemnity (People vs. Basco, 318 SCRA 615 [1999]), and P37,041.00 as actual damages representing funeral and burial expenses. Moral damages, which include physical suffering and mental anguish may be recovered in criminal cases resulting in physical injuries or the victim's death, as in this case (People vs. Bromo, 318 SCRA 760 [1999]), which, under the prevailing jurisprudence is fixed at P50,000.00 (People vs. Panida, 310 SCRA 66 [1999]).  The award of P300,000.00 as moral and exemplary damages is, therefore, reduced to this amount.  The loss of earning capacity is computed as 2/3 × (80 - age of deceased) × (reasonable portion of his annual income) (People vs. Cordero, 263 SCRA 122 [1996]).  Other than Ireneo's widow's testimony that her husband's aggregate income from various sources was P60,000.00 per annum, the record is bereft of any accurate basis to determine what her husband's annual income actually was.  The Court, as it did in People vs. Quilang (312 SCRA 314 [1999]), however, recognizes the fact that the heirs are entitled to damages as a result of the loss of earning capacity of the deceased. The Court, therefore, finds the amount of P300,000.00 instead of P500,000.00 as a reasonable amount in this case.

WHEREFORE, premises considered, accused-appellant's conviction of the crime of illegal possession of firearm in its aggravated form is REVERSED and SET ASIDE, but he is found GUILTY beyond reasonable doubt of the crime of homicide and is imposed an indeterminate prison term of ten (10) years and one (1) day, as minimum to seventeen (17) years, four (4) months, and one (1) day, as maximum. Accused-appellant is further ordered to pay the heirs of Ireneo Jimenez, Jr. the amount of P50,000.00 as civil indemnity, P37,041.00 as actual damages, P50,000.00 as moral damages, and P300,000.00 for loss of earning capacity, or a total of P437,041.00.  No special pronouncement is made as to costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.