With the passage of Republic Act No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or homicide is now considered, not as a separate crime, but merely a special aggravating circumstance.

In the case at bar, appellant JULIAN CASTILLO y LUMAYRO was charged with Murder and Illegal Possession of Firearms in two (2) separate Informations, thus:

Criminal Case No. 45708:

"That on or about the 14^th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, armed with a handgun, with deliberate intent and without justifiable motive, with evident premeditation, by means of treachery and with a decided purpose to kill, did then and there wilfully, unlawfully and criminally shoot, hit and wound Rogelio Abawag with the said gun, with which herein accused was then provided at the time, thereby causing upon said Rogelio Abawag bullet wounds on vital parts of his body, which caused his instantaneous death.

"CONTRARY TO LAW."^[1]

Criminal Case No. 45709:

"That on or about the 14^th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, with deliberate intent and without justifiable motive, have in his possession and control one (1) Homemade .38 caliber revolver without serial number (and) three (3) live ammunitions without the authority and permit to possess or carry the same.

"CONTRARY TO LAW."^[2]

The scene of the crime was the then on-going construction site of Gaisano Building in Lapaz, Iloilo City. On November 14, 1995, at about 8 a.m., ROBERTO LUSTICA, a construction worker, was on the last rung of the stairs on the third floor of the Gaisano building when he saw his co-worker ROGELIO ABAWAG being closely pursued by accused JULIAN CASTILLO, a lead man in the same construction site. During the chase, the accused pointed a gun at Abawag and shot him. Abawag, then about a half meter away from the accused, fell on his knees beside a pile of hollow blocks.^[3]

FRANKLIN ACASO, a mason working on the third floor of the Gaisano building, heard the first shot. Initially, he did not pay attention to it as he thought that the sound came from one of their construction equipments. Seconds later, he heard a second shot and a person screaming: "Ouch, that is enough!" When he looked towards the direction of the sound, he saw the accused in front of Abawag, about a meter away, pointing a .38 caliber revolver at the latter. Abawag was then leaning on a pile of hollow blocks, pleading for mercy. The accused shot Abawag a third time despite the latter's imploration. The accused then fled, leaving Abawag lifeless.^[4]

The management of Gaisano reported the shooting incident to the police authorities who immediately rushed to the scene of the crime. JUN LIM, alias "Akoy," brother-in-law of the victim and also a construction worker at the Gaisano, volunteered to go with the police and assist them in locating the accused.

The police, accompanied by Akoy, proceeded to Port San Pedro where they saw the accused on board a vessel bound for Cebu. When they boarded the vessel, Akoy positively identified the accused to the police as the assailant. The accused attempted to escape when the police identified themselves but the police caught up with him. Upon inquiry, the accused denied complicity in the killing of Abawag. The police found in his possession a .38 caliber handmade revolver, three (3) empty shells and three (3) live ammunitions. Further inquiry revealed that the accused owned the gun but had no license to possess it. The police then took the accused into custody and charged him for the murder of Abawag and for illegal possession of firearm.^[5]

The self-defense theory hoisted by the accused who testified solely for the defense was not given credence by the trial court. Thus, he was convicted of Homicide, as the prosecution failed to prove the alleged qualifying circumstances of evident premeditation and treachery, and of Illegal Possession of Firearm, aggravated by homicide. The trial court disposed as follows:

"WHEREFORE, premises considered and finding the accused guilty of the crimes of homicide and illegal possession of firearm aggravated by homicide beyond the shadow of the doubt, he is hereby sentenced as follows:

"1) For the crime of homicide, he is sentenced to an indeterminate penalty of imprisonment of Twelve (12) years of prision mayor, as minimum, to Seventeen (17) years and Four (4) months of reclusion temporal, as maximum;

"2) For illegal possession of firearm which is aggravated by homicide, he is sentenced to a penalty of death;

"3) To pay the family of his victim P50,000.00 as indemnity and another P50,000.00 as moral damages; and

"4) To pay the cost.

"SO ORDERED."^[6] (italics supplied)

On automatic review by this Court, appellant impugns solely his conviction for illegal possession of firearm for which he was sentenced to the supreme penalty of death.

Prefatorily, we stress that although the appellant himself does not refute the findings of the trial court regarding the homicide aspect of the case, the Court nevertheless made a thorough examination of the entire records of the case, including the appellant's conviction for homicide, based on the settled principle that an appeal in criminal cases opens the entire case for review. Our evaluation leads us to conclude that the trial court's ruling on the homicide aspect is clearly supported by the records. Thus, we shall concentrate on the appellant's lone assignment of error with respect to his conviction for the crime of illegal possession of firearm.

P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by Republic Act 8294. Aside from lowering the penalty for said crime, R.A. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance.^[7] This amendment has two (2) implications: first, the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but merely as a special aggravating circumstance; second, as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one penalty shall be imposed on the accused.^[8]

Prescinding therefrom, and considering that the provisions of the amendatory law are favorable to herein appellant, the new law should be retroactively applied in the case at bar.^[9] It was thus error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of the case, the crime for which the appellant may be charged is homicide, aggravated by illegal possession of firearm, the correct denomination for the crime, and not illegal possession of firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which aggravates the crime of homicide under the amendatory law.

The appellant anchors his present appeal on the assertion that his conviction was unwarranted as no proof was adduced by the prosecution that he was not licensed to possess the subject firearm. In their Manifestation and Motion in lieu of Appellee's Brief, the Solicitor General joined cause with the appellant.^[10]

We agree.

Two (2) requisites are necessary to establish illegal possession of firearms: first, the existence of the subject firearm, and second, the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence. The onus probandi of establishing these elements as alleged in the Information lies with the prosecution.^[11]

The first element -- the existence of the firearm -- was indubitably established by the prosecution. Prosecution eyewitness Acaso saw appellant shoot the victim thrice with a .38 caliber revolver.^[12] Appellant himself admitted that he did not turn over the gun to the security guards in the building after the shooting.^[13] The same gun was recovered from the appellant and offered in evidence by the prosecution. However, no proof was adduced by the prosecution to establish the second element of the crime, i.e., that the appellant was not licensed to possess the firearm. This negative fact constitutes an essential element of the crime as mere possession, by itself, is not an offense. The lack of a license or permit should have been proved either by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the subject firearm^[14] or that the type of firearm involved can be lawfully possessed only by certain military personnel.^[15] Indeed, if the means of proving a negative fact is equally within the control of each party, the burden of proof is on the party averring said negative fact. As the Information alleged that the appellant possessed an unlicensed gun, the prosecution is duty-bound to prove this allegation. It is the prosecution who has the burden of establishing beyond reasonable doubt all the elements of the crime charged, consistent with the basic principle that an accused is presumed innocent until proven guilty.^[16] Thus, if the non-existence of some fact is a constituent element of the crime, the onus is upon the State to prove this negative allegation of non-existence.^[17]

Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun recovered from his possession, his admission will not relieve the prosecution of its duty to establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In People vs. Solayao,^[18] we expounded on this doctrine, thus:

"x x x (b)y its very nature, an 'admission is the mere acknowledgement of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt.' In other words, it is a 'statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction.' From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged.

"Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states:

'An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.'

"Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license." (italics supplied)

Additionally, as pointed out by both the appellant and the Solicitor General, the extrajudicial admission was made without the benefit of counsel. Thus, we hold that the appellant may only be held liable for the crime of simple homicide under Article 249 of the Revised Penal Code.

We come now to the penalty. The crime of homicide is penalized by reclusion temporal.^[19] There being no aggravating or mitigating circumstance attendant to the commission of the crime, the penalty of reclusion temporal shall be imposed in its medium period, i.e., from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, the imposable penalty shall be within the range of prision mayor, i.e., from six (6) years and one (1) day to twelve (12) years, as minimum, to reclusion temporal in its medium period of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, as maximum.

IN VIEW OF THE FOREGOING, the assailed Decision is MODIFIED. Appellant Julian Castillo y Lumayro is found guilty of Homicide. He is sentenced to imprisonment of from nine (9) years and four (4) months of prision mayor as minimum to sixteen (16) years, five (5) months and nine (9) days of reclusion temporal as maximum. However, the civil indemnity and moral damages awarded by the trial court to the heirs of the victim in the total amount of one hundred thousand (P100,000.00) pesos are affirmed.

SO ORDERED.

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

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^[1] Rollo, p. 1.

^[2] Original Records, p. 1.

^[3] July 31, 1996 TSN, pp. 2-4, 10.

^[4] July 24, 1996 TSN, pp. 3-11.

^[5] May 22, 1996 TSN, pp. 8-22; July 3, 1996 TSN, pp. 3-9.

^[6] Decision, dated February 25, 1997; Rollo, pp. 15-22.

^[7] Section 1, par. 3.

^[8] People vs. Molina, 292 SCRA 742, 779-783 (1998)

^[9] Article 22, Revised Penal Code.

^[10] Rollo, pp. 71-85.

^[11] People vs. Eubra, 274 SCRA 180 (1997); People vs. Villanueva, 275 SCRA 489 (1997); People vs. Mallari, 265 SCRA 456 (1996); People vs. Tiozon, 198 SCRA 368 (1991)

^[12] July 24, 1996 TSN, at p. 6.

^[13] October 16, 1996 TSN, p. 15.

^[14] People vs. Villanueva, supra.

^[15] People vs. Mesal, 244 SCRA 166 (1995)

^[16] 29 Am. Jur., 2d, pp. 180-181.

^[17] Underhill's Criminal evidence, 4^th edition, p. 70.

^[18] 262 SCRA 255 (1996)

^[19] Article 249, Revised Penal Code.