Professional Documents
Culture Documents
- versus -
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DEMURRER TO EVIDENCE
ACCUSED, through counsel, unto this Honorable Court respectfully moves for the
dismissal of the charge against her of Qualified Theft on the following grounds:
1. The highly improbable theory of the prosecution was not substantiated.
I. PREFATORY STATEMEMENT
1. This is a case of Qualified Theft filed against the herein accused, Carolyn Lim,
former Customer Relations Assistant (CRA) of the Greenhills Branch of AB
Banking Corporation, filed by Carmela Collantes, then Senior Manager of the
Audit Examination Department of said bank, in behalf of the bank as private
complainant.
2. Curiously and worthy of note is the fact that the charge was filed shortly
following charges of incriminatory machination and intriguing against honor filed
by the accused herself against the officers of the bank branch of private
complainant where the accused used to work. 1
5. It must be noted at the very outset that the charge of qualified theft of which the
accused is charged hinges entirely and exclusively on the fantastic tale the
private complainant persists to parlay that the accused succeeded in completely
deceiving her superiors at the Greenhills branch of the complainant bank into
believing that the cash collection covered by each of the bank’s official receipts
covering the transactions that are the subject of this case was pocketed by the
accused, and that she (the accused) did this on 644 separate occasions during
her stint as Customer Relations Assistant at said bank for a period of about one
year and a half—a gothic story that defies human reason and insults one’s
intelligence.
a. “The prosecution alleges in page 116 of the Formal Offer that the first set
of documents offered for a common purpose starts from Exhibit ‘A’ up to
Exhibit ‘P25-3,’ while the first set actually attached in the formal offer of
Exhibits is only from Exhibit ‘A’ to Exhibit ‘P17-3.’
d. “There are no initials of Carolyn Lim (the accused) in any portion of each
of the documents comprising Exhibits ‘A’ to ‘P25-3’ contrary to the
prosecution’s allegations.”
2. Arguing further on the matter, the accused went on by discussing that these
exhibits are misleading as they are not what the prosecution alleges them to be
and that the above-identified documents, alleged but not found in the formal offer
of the prosecution, may not be considered as having been formally offered. Under
the Rules, the court shall consider no evidence which has not been formally
offered (Rule 132, sec. 35). A formal offer is necessary, since judges are required
to base their findings of fact and their judgment solely and strictly upon the
evidence offered by the parties at the trial. Opposing parties would be deprived of
their chance to examine the document and to object to its admissibility if this
procedure were not followed.
3. In an order dated April 20, 2004, the Honorable Court, confirming the abovecited
objections, returned to the prosecution its Formal Offer of Evidence due to the
finding that some exhibits listed in the Covering Pleading of said Formal Offer
were missing as attachments.
4. Hence, in a hearing of this case dated April 27, 2004, the prosecution withdrew its
Formal Offer for the same reasons stated above. Thus, the accused was
constrained to also withdraw its Comments and Objections in order to adjust its
allegations according to the additional exhibits that were supposed to be attached
in the Formal Offer. The Court, therefore, issued an order giving the prosecution a
period of thirty (30) days within which to file its Formal Offer, and the accused
with the same period from receipt of a copy of the Formal Offer to file its
Objections and Comments thereto, after which the matter shall be deemed
submitted for resolution.
5. Subsequently, the prosecution asked, and the court granted, in an order dated July
16, 2004, another fifteen (15) day period from receipt of said order to file its
Formal Offer, giving the prosecution more than ample time to complete its offer.
6. Counsel for the accused received a copy of the prosecution’s NEW Formal Offer
of Evidence on August 3, 2004. Amazingly, this new Formal Offer, consisting of
123 pages, comprises the Cover Pleading only. It failed not only to complete the
attachments as required by this Court, but altogether omitted every and all
exhibits described therein.
7. Despite the fact that the previous Formal Offer (filed by the prosecution on March
3, 2004) has been withdrawn and, thus, considered stricken off the records of the
case, the NEW Formal Offer did not contain any attachment of any documentary
evidence, which effectively deprives the accused of any opportunity to object to
any of the alleged exhibits submitted by the prosecution.
8. Additionally, after a circumspect and painstaking scrutiny, it was found out that
the changes in the cover pleading (as discussed in the accused’s
Objections/Comments to Prosecution’s Formal Offer) constitute only insertions of
some exhibits with similar purposes as the first Formal Offer. The fact that no
documentary evidence, originally attached in the previous formal Formal Offer
or otherwise, has been attached in this new Formal Offer renders the foregoing
changes immaterial and inconsequential. It has not cured, even in the slightest
degree, the defects of the previous Formal Offer of the prosecution which has
been excluded by this Honorable Court.
9. Moreover, the introduction of the foregoing changes did not affect the purposes
for the offer of the documentary evidence as there has been no changes
whatsoever in the discussion of the purposes for said offer.
10. It should be stressed that the new Formal Offer did not even incorporate by
reference the incomplete attachments of the previous Formal Offer of Exhibits.
11. On these scores, as this Court has expressed in its July 16, 2004 Order “Failure to
comply within the reglementary period will be considered as a waiver of the
prosecution’s right.” The submission of the Formal Offer by the prosecution,
although made in time, is, in fact, not a compliance at all.
12. The failure of the prosecution to offer a complete exhibit in the previous Formal
Offer and its failure to submit any exhibit on the new Formal Offer should be
deemed a waiver of its right to do so. The delay of the proceedings in this case
due to the unjustified lapses in the prosecution’s offer of evidence has been
clearly vexatious and oppressive, constitutive of a violation of the right to a
speedy trial of the accused.
13. Nevertheless, maintaining the above arguments, if only to obviate any further
possible delay, and in the event that the Honorable Court, for whatever judicious
and just reason there may be, would find no merit in the above discussion, or if
the Court would consider the attachments in the previous Formal Offer as deemed
incorporated in the second Formal Offer, the accused, without admitting the
propriety of the new Formal Offer, interposed its comments and objections both to
the withdrawn and the new Formal Offer of Exhibits of the prosecution. Thus, the
following arguments and discussion in support of the demurrer:
This directly contradicts the line peddled under oath by the other
prosecution witnesses 19 that the accused, as CRA, invariably received or
took delivery of SDB clients’ rental payments. This testimony even
bolsters the fact that, in fact and in truth, the accused received no money
from the bank’s customers.
2. That after the CRA had prepared the income ticket, “the teller presents it to
the bank official for validation.” 20
Fourteen days later, on February 5, 2001, the witness changed his testimony by
saying that he referred the matter first to “our Legal,” and then “drafted it first” 23
before giving it to a staff member for typing.
“xxx we were just trying to get information from her [fishing expedition?]
xxx usap-usapan lang.” 24 [translation: “It is just mere talk.”]
c. Time of meeting of senior branch staff with the accused on May 29, 1996.
Branch Operations Head Peña testified on February 5, 2001 that he, along with
the other senior branch staff and the accused, had a meeting in the office of Acting
Branch Manager Santos on the alleged anomaly concerning the SDB rental
payment of bank client Peter Li ”at around 11:00 A.M.” and that the Notice of
Investigation was presented to the accused at 11:30 A.M. or 12:00 noon during
said meeting. 25
On the other hand, Acting Branch Manager Santos, under direct examination,
declared that the meeting actually took place at 10:00 A.M., not 11:00 A.M. 26 —
a full one hour difference from the meeting time testified to by Carlos Peña.
Prosecution witness Peña said on the witness stand on February 5, 2001 that the
Notice of Investigation issued to the accused was in connection with the case of
Mr. Peter Li. When cross-examined, however, he admitted that there was nothing
such contained in the said Notice, 27 a fact verified by an examination of the
document. For his part, Acting Branch Manager, Santos never mentioned a thing
about it.
This particular matter is likewise very material, since it is customary, nay required
standard operating procedure, that a notice of investigation must indicate the
purpose of the investigation, the absence of which exposes the person to be
investigated to an ambush in gross violation of his/her right to due process.
e. Bank Procedures.
Acting Branch Manager Santos testified that the accused cried inside his office
while the meeting was being conducted. 29
On the other hand, Edna Garcia declared on the witness stand that the crying
incident took place before the meeting and not in the office of Acting Branch
Manager Santos. Operations Head Peña was silent about the matter.
Ms Garcia also supposedly had the following exchange of words with the accused
as follows:
“Ms Carolyn Lim [accused] cried and told me, among others, that
“NOON PA DURING THE DAYS WHEN KA CLOSE KO SI GINA. SABI
NGA NG KA CLOSE KO PAG KAILANGAN KO NG PERA, GANITO
AND GAWIN KO.”[Translation: “Even then when I was close to Gina.
She said that whenever I need money, this is what I should do.”] She
further told me that one of the reasons why she requested for transfer to
another branch is because she could not control herself from doing it
anymore. She even told me “FEELING KO ANG GALING-GALING KO
NA. HINDI NILA AKO NAHUHULI.” 30 [Translation: “I felt I was very
good. They cannot catch me.”]
This is an unnatural and preposterous exchange, if such exchange ever took place,
which even caught the unusual attention of the court when the alleged exchange
of words was narrated by the witness.
Endnotes:
1 Original Record (OR), Criminal Case No. 94-0617-D, 7.
4 OR, Criminal Case No. 94-00617-D, 19; OR Criminal Case No. 94-00619-D, 17; and OR, Criminal Case No. 94-00620-D, 26.
9 Id., 9-13.
10 Id.,16-18.
12 Exhibit F; OR, Criminal Case No. 94-00617-D, 9; TSN, 9 August 1994, 5-7.
31 Id., 26.
38 OR, Criminal Case No. 94-00617-D, 99-111; Rollo, G.R. Nos. 118940-41, 35-47.
46 OR, Criminal Case No. 94-00620-D, 162-164; Rollo, G.R. No. 119407, 30-32.
47 An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended,
Other Special Penal Laws, and for Other Purposes, which took effect on 31 December 1993 (People v. Simon, G.R. No. 93028, 234
SCRA 555 [1994]).
48 1 C.J.S. Actions 108, 1343; Cojuangco v. Court of Appeals, 203 SCRA 619, 632 [1991].
51 As distinguished, for instance, from the phraseology of Section 1 of P.D. No. 1866 on qualified illegal possession of firearm,
where murder or homicide is committed with the use of an unlicensed firearm -- the assailant is also liable for murder or homicide in
view of the clear intent of the law to respect and preserve the latter as a distinct offense under the Revised Penal Code and to increase
the penalty for illegal possession of firearm where such firearm is used in killing a person. (People v. Quijada, 259 SCRA 191
[1996]).
52 The term "Motor Vehicle" is defined therein as any vehicle propelled by any power other than muscular power using the public
highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian
trucks, and cranes if not used on public highways, vehicles which run only on rails or tracks and tractors, trailers and traction engines
of all kinds used exclusively for agricultural purposes.
56 People v. Dramayo, 42 SCRA 59, 64 [1971]; People v. Aguilar, 222 SCRA 394, 407-408 [1993].
57 People v. Pido, 200 SCRA 45 [1991]; People v. Cordova, 224 SCRA 319, 348 [1993].
68 Id., 15.
69 Id., 9.
70 Id., 13.
SEC. 27. Offer of compromise not admissible. -- In civil cases, an offer of compromise is not an admission of any liability, and is not
admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of
compromise by the accused may be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser offense, is not admissible in evidence against
the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof
of civil or criminal liability for the injury.
The witness for the prosecution Rita Pino testified that she saw the motorcycle of
George Lozano ridden by three men when it passed by the cotton farm in
barangay Cabuway, General Santos City. 6 She was able to identify the accused.
She was unwavering in her declaration. According to the accused-appellants,
there were inconsistencies between the signed statement of Rita Pino that "she
was invited to go to the police station to identify the suspects" 7 and her
statements in open court that "she came to the police station out of her own
volition"8 which placed a doubt on her credibility. This is not the first time that the
Court will hold that discrepancies between the statements of an affiant in his
affidavit and those made by him on the witness stand do not necessarily discredit
him since ex-parte affidavits are generally incomplete. Affidavits are generally
subordinate in importance to open court declarations. 9
Republic of the Philippines
SUPREME COURT
FIRST DIVISION
G.R. No. 130594 July 5, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AKMAD SIRAD, ORLIE SULTAN y MASDAL and SALIK AMINO y
LUGEOMAN, accused.
ORLIE SULTAN y MASDAL and SALIK AMINO y LUGEOMAN, accused-
appellants
PARDO, J.:
The issue is what is the quantum of circumstantial evidence that will be sufficient
to convict the accused-appellants. This Court had on many occasions ruled that
circumstantial evidence would suffice when, " (1) there is more than one
circumstance; (2) the facts from which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to produce a conviction
beyond reasonable doubt."12
The peculiarity of circumstantial evidence is that the guilt of the accused cannot be
deduced from scrutinizing just one particular piece of evidence. It is more like weaving a
tapestry of events that will culminate in a clear picture that will reveal a convincing
scenario pointing towards the accused as the author of the crime.
In the case at bar, the circumstances are as follows:
1....Martillano Lozano and Rita Pino saw the familiar red motorcycle of George
Lozano passed by the cotton farm at around 9:00 a.m. on February 4, 1992;
2....At around 12:00 noon, Martillano and Rita Pino saw the motorcycle of George
Lozano without the bread box pass by with the three accused riding on it;
3....At about 10:00 p.m. the dead body of George Lozano was found at the ranch
of Bernardino Lozano about three (3) meters away from the cotton farm where
Rita and Martillano was gathering left over cotton;
4....The three accused riding the motorcycle were driving away from the direction
where the body of George Lozano was found;
5....Orlie Sultan and Akmad Sirad were riding the motorcycle of the victim, when
they were apprehended by police officers on February 8, 1992;
6....Akmad Sirad explained to the police officers that he was in possession of the
motorcycle because he was instructed by Salik Amino to deliver it to Sultan
Kudarat; and
7....Rita Pino and Martillano Lozano identified accused-appellants and their co-
accused Akmad Sirad.
The above circumstances established by the prosecution successfully overcome the
constitutional presumption of innocence and established the guilt of the accused-
appellants beyond reasonable doubt.
In a last ditch effort to exculpate themselves from the crime charged, accused-appellants
raise the issue of the illegality of their identification by the prosecution's witnesses at a
police line-up. According to accused-appellants, the identification was in violation of
their constitutional right to counsel because there was no counsel present at the time.
Further, they alleged that their investigation shifted from investigatory to accusatory for
they were considered as primary suspects.
We disagree with accused-appellants. When they were apprehended, they were riding the
motorcycle of the deceased George Lozano, and to make things worse, they fled when
they were asked by the police to stop. Possession of a stolen property creates the
presumption that the possessor stole it. Adding the fact that they fled when asked by the
police to stop, it is just normal and more likely that they would be considered primary
suspects.
Accused-appellants hold the view that their identification in the "police line-up" was a
violation of their constitutional rights and thereby inadmissible in evidence. We disagree.
In People vs. Timon,13 we held that "[I]n resolving the admissibility of and relying on out
of court identification of suspects, courts have adopted the totality of circumstances test
where they consider following factors, viz: (1) the witness' opportunity to view the
criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the
accuracy of any prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length of time between the crime
and the identification; and (6) the suggestiveness of the identification procedure."
Applying this totality of circumstances test to the case at bar, we rule that there is no
violation of the constitutional rights of accused-appellants. The witnesses positively
identified the three accused inside the jail. The three accused were in the company of
other inmates. Thus, they were in a group. The police officers did not in any way
influence the witnesses. All they did was to ask the witnesses to identify the three accused
they saw riding the motorcycle. The identification took place on February 10, 1992, only
a few days after the incident.
Furthermore, appellant's allegation of suggestiveness in the identification is
unsubstantiated. The identification of accused-appellants was effected through a zealous
investigation of the police. The accused-appellants' allegation of irregularity,
maltreatment and torture has not been proven, ergo, the investigators are presumed to
have performed their duties regularly and in good faith.
Also, in People vs. Lapura14 and People vs. Pacistol15 we ruled that "[T]he uncounselled
identification made at the police station, however, did not foreclose the admissibility of
the independent in-court identification."
It is, however, necessary for the Court to correct the error of the trial court in convicting
the accused of the crime of carnapping with homicide. During the commission of the
crime, which was on February 4, 1992, there was no crime denominated as carnapping
with homicide. The proper denomination for the crime is carnapping as defined and
penalized under of Republic Act No. 6539, Sections 2 and 14. Under Republic Act No.
6539, Section 14, the penalty for carnapping in case the owner, driver or occupant of the
carnapped motor vehicle is killed in the course of the commission of the carnapping shall
be reclusion perpetua to death. Considering that at the time of the commission of the
crime the death penalty was suspended, accused are hereby sentenced to reclusion
perpetua.
In conformity with prevailing jurisprudence, the trial court correctly awarded the amount
of P50,000.00 as civil indemnity for the death of the victim. Anent moral damages, the
victim's widow testified that the death of her husband left her with six children to
support, thus, she does not know what to do. Moral damages which include physical
suffering and mental anguish, may be recovered in criminal offenses resulting in physical
injuries and the victim's death as in this case.16
The trial court failed to consider the fact that under Article 2206 of the Civil Code, in
addition to civil indemnity of P50,000.00 for the death of the victim, the accused-
appellants are also jointly and severally liable for the loss of the earning capacity of the
deceased and such indemnity should be paid to the heirs of the latter. The widow Nenita
Lozano testified that her husband was employed as a deliveryman for bread and was
earning P300.00 a day before his death and that they had six children and the deceased
was 42 years old.
:
Republic Act No. 6539, otherwise known as An Act Preventing and Penalizing
Carnapping, defines carnapping, thus:
Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another
without the latters consent, or by means of violence against or intimidation of persons, or
by using force upon things.[Ibid., sec. 2]
Intent to gain, or animus lucrandi, as an element of the crime of carnapping, is an internal
act and hence presumed from the unlawful taking of the vehicle. [15 Unlawful taking, or
apoderamiento, is the taking of the vehicle without the consent of the owner, or by means
of violence against or intimidation of persons, or by using force upon things; it is deemed
complete from the moment the offender gains possession of the thing, even if he has no
opportunity to dispose of the same. [16