Republic of the Philippines

REGIONAL TRIAL COURT IN NEGROS ORIENTAL

7th Judicial Region
BRANCH 43
Dumaguete City

PEOPLE OF THE PHILIPPINES,

Plaintiff,
-versus-
CRIMINAL CASE NO. 1212
SABINO GUTIB, FOR: ROBBERY WITH HOMICIDE
Accused.
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POSITION PAPER
COME NOW, the Answering Defendant Sabino Gutib, by the undersigned

counsel, to the Honorable Court, respectfully submit his Position Paper, as follows:

STATEMENT OF THE CASE

On February 4, 2009, plaintiff, surviving spouse of the late Marcial Gomez filed

its complaint before the Regional Trial Court in Negros Oriental against Sabino Gutib

herein defendant for Robbery with Homicide docketed as Criminal Case No. 1212.

In its complaint, plaintiff asserted that the accused Sabino Gutib was the last

person with the victim the day he died. That at around 7 oclock in the morning the

accused Sabino Gutib fetch her husband to buy a carabao that he sighted in Brgy

Manipis, Tanjay City, and she learn later from the testimony of her neighbor that her

husband return home at around 8 am on the same day.

That on that the same day her husband was killed who suffered multiple fatal stab

wounds and that he discovered that the P25, 000.00 was allegedly missing from the

possession of the victim and only recovered P15,000.00.

 That the complainant identified the pieces of evidence found in the crime scene the

yellow polo shirt and the camouflage lousy cap as that of Sabino Gutib. Witnesses was

presented giving their accounts that her husband before his death was able to tell that he

was robbed and stabbed by his companion.

Defendant is now facing criminal charges for allegedly committing a

crime of Robbery with Homicide.

On the arraignment proceeding held ____, defendant pleaded not guilty, the

Honorable court thereby directed the parties to file their respective position paper, hence,

the submission of this paper.

STATEMENT OF THE FACTS

On January 23, 2009 around 7 am, Defendant fetch the victim Marcial in their to

supposedly buy a carabao in Manipis, Tanjay City but when they arrived the carabao was

already sold. So they decided to buy a goat instead and the victim instructed the

defendant to look for a carabao and the victim went home with the goat.

That the defendant was able to find another carabao at Nyubi, Pamplona, that was

when he texted the victim to meet him in the terminal going to Pamplona so that they can

check the said carabao. That when they arrived at Nyubi, Pamplona around 9:20 am

Marcial bought the carabao and paid the amount of P25,000 to Marcaryo Tubil, the

Acknowledgement Receipt signed by the seller was attached in the Affidavit of Marcaryo

Tubil as “Exhibit 1” identified and authenticated by Marcaryo Tubil.

That the victim Marcial Gomez asked the defendant to stay at the sellers house at

Nyubi, Pamplona and prepare for the transport of the said carabao as he will be looking

for the carrier for them to transport. That the victim was at the house of the seller from

9:20 to 1:00 o’clock in the afternoon corroborated by the testimony of Marcaryo Tubil

and another buyer Dexter Alviola.

 That when Marcial did not return in the afternoon the defendant decided to go

home and directly proceed to Bayawan city to fetch her wife. That he was shocked when

he found out on the later days that Marcial was killed when he received summon and

complaint of the wife of the victim and was arrested.

By reason of the foregoing, defendant was ordered to secure services of the lawyer

to defend his case.

ISSUES

WHETHER OR NOT THE CIRCUSMTANTIAL EVIDENCE PRESENTED BY

THE PROSECUTION IS SUFFICIENT TO FIND THE ACCUSED GUILTY BEYOND

REASONABLE DOUBT OF THE CRIME CHARGED;

ARGUMENTS

The circumstantial evidence was insufficient to prove Gutib’s guilt beyond

reasonable doubt for the crime of Robbery with Homicide.

The Rules of Court itself recognizes that circumstantial evidence is sufficient for

conviction, under certain circumstances:

Sec. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is

sufficient for conviction if:

(1) There is more than one circumstance;

(2) The facts from which the inferences are derived are proven;

(3) The combination of all the circumstances is such as to produce a conviction

beyond a reasonable doubt.

Moreover, in Lozano v. People, G.R. No. 165582, July 9, 2010, the Court clarified

the application of the circumstantial evidence rule:

 “To sustain a conviction based on circumstantial evidence, it is essential that the

circumstantial evidence presented must constitute an unbroken chain which leads one to

a fair and reasonable conclusion pointing to the accused, to the exclusion of the others,

as the guilty person. The circumstantial evidence must exclude the possibility that some

other person has committed the crime.”

The pieces of circumstantial evidence do not clearly make an unbroken chain

which leads one to a fair and reasonable conclusion that accused perpetrated the

crime.

The events that transpired from the time appellant had been last seen with the

victim at seven o'clock in the morning of January 23, 2009 to around 10’oclock , the time

when the victim's body was discovered, are unaccounted for.

The testimony of the wife that the victim was last seen with the accused around

seven o’clock in the morning broke the chain of circumstantial evidence, when another

witness testified that he saw the victim went home around 8’clock in the morning

bringing the goat. There is also no proof showing that accused was actually seen with the

victim during that span of time. Mere suspicions and peculations can never be bases of

conviction in a criminal case. The accused had been last seen with the appellant do

not necessarily mean he authored the crime.

The identification of the wife of the cap and the clothes of the accused was

insufficiently proven without doubt. She cannot described them, in particular, but how

she could make out the special identity of the cap or the clothes from where she stood and
where and how the she was positioned in a short span of time. The object evidence the

yellow polo shirt, marked as Exhibit “N” to prove that the polo shirt found at the crime

was the one worn by the accused as identified by the witness does not fit with the accused

Second, the testimony of the witness who allegedly heard the victim said

“Tabanga ko ninyo kay gidunggab kos akong kauban, gkuha akong kwarta”

Four requisites must concur in order that a dying declaration may be admissible,

thus: First, the declaration must concern the cause and surrounding circumstances of the

declarant's death. This refers not only to the facts of the assault itself, but also to matters

both before and after the assault having a direct causal connection with it. Statements

involving the nature of the declarant's injury or the cause of death; those imparting

deliberation and willfulness in the attack, indicating the reason or motive for the killing;

justifying or accusing the accused; or indicating the absence of cause for the act are

admissible. Second, at the time the declaration was made, the declarant must be under

the consciousness of an impending death. The rule is that, in order to make a dying

declaration admissible, a fixed belief in inevitable and imminent death must be entered

by the declarant. It is the belief in impending death and not the rapid succession of death

in point of fact that renders the dying declaration admissible. It is not necessary that the

approaching death be presaged by the personal feelings of the deceased. The test is

whether the declarant has abandoned all hopes of survival and looked on death as

certainly impending. Third, the declarant is competent as a witness. The rule is that

where the declarant would not have been a competent witness had he survived, the

proffered declarations will not be admissible. Thus, in the absence of evidence showing

that the declarant could not have been competent to be a witness had he survived, the

presumption must be sustained that he would have been competent. Fourth, the

declaration must be offered in a criminal case for homicide, murder, or parricide, in

which the declarant is the victim. PP vs. Jose Umapas, G.R. No. 215742.
 On the second requisite of dying declaration, the fact that the declarant said

“Tabanga ko ninyo”, this means that the declarant is not aware of the impending death

and certainty has not abandoned all hopes of survival. Also, the statement “gidunggab

kos akong kauban, gkuha akong kwarta” does not necessarily point to the accused

since there was no proof that the accused was actually with the victim at that time.

Considering the weakness of the prosecution evidence against accused the possibility that

another person or persons could have committed the crime cannot be discounted. The

evidence at hand neither proves beyond cavil appellant's complicity nor precludes the

possibility of another person's liability for the crime.

The facts and circumstances proven by the prosecution, taken together, are not

sufficient to justify the unequivocal conclusion that Sabino Gutib has intent to take the

money from Marcial Gomez and killed him. No other convincing evidence was presented

by the prosecution that would link him to Robbery. The fact that the P 25,000 was not

anymore in the possession of Marcial Gomez and that Sabino Gutib was seen with the

accused on that day does not necessarily point to the conclusion that it was Sabino Gutib

who took the money and killed him. In the appreciation of circumstantial evidence,

the rule is that the circumstances must be proved, and not themselves presumed.

The circumstantial evidence must exclude the possibility that some other person has

committed the offense charged. (People v. Anabe, G.R. No. 179033, September 6,

2010)

The prosecution failed to establish the intent

to take personal property before the killing.

In robbery with homicide cases, it is incumbent that the prosecution prove that: (a)

the taking of personal property is perpetrated by means of violence or intimidation

against a person; (b) the property taken belongs to another; (c) the taking is characterized
by intent to gain or animus lucrandi; and (d) on the occasion of the robbery or by reason

thereof, the crime of homicide is committed.

“The prosecution should establish the offender's intent to take personal property

before the killing, regardless of the time when the homicide is actually carried out. When

the prosecution fails to conclusively prove that the homicide was committed for the

purpose of robbing the victim, no accused can be convicted of robbery with homicide.”

(G.R. No. 193837, September 21, 2016, People of the Philippines vs. Renato M. Pangan)

Records also do not show that there is an intent to take the money by the accused,

in fact the accused was able to give proof that the amount allegedly robbed was used in

buying the carabao and the fact that there is still P 15,000.00 recovered from the victim.

Robbery with homicide is a special complex crime against property. Absent clear

and convincing evidence that the crime of robbery was perpetrated, and that, on occasion

or by reason thereof, a homicide was committed, an accused cannot be found guilty of

robbery with homicide, but only of homicide or murder, as the case may be. There is

scarce evidence to show appellant's complicity in the killing of the victim. The Court

cannot convict appellant of the special complex crime of robbery with homicide or of the

separate crimes of robbery or homicide when the circumstantial evidence relied upon by

the trial court is plainly inadequate and unconvincing in proving appellant's guilt beyond

reasonable doubt. In the final analysis, the circumstances narrated by the prosecution

engender doubt rather than moral certainty on the guilt of appellant.

“In our criminal justice, the overriding consideration is not whether the court

doubts the innocence of the accused but whether it entertains a reasonable doubt as to

his guilt. Where there is reasonable doubt as to the guilt of the accused, he must be

acquitted even though his innocence may be doubted since the constitutional right to be

presumed innocent until proven guilty can only be overthrown by proof beyond

reasonable doubt.” People v. Canlas, 423 Phil. 665, 686 (2001).

 CONCLUSION

Wherefore, the prosecution’s failure to prove the intent to take personal

property before the killing and the guilt of the accused and the circumstantial

evidence relied upon by the trial court is plainly inadequate and unconvincing in

proving appellant's guilt beyond reasonable doubt. With circumstances narrated by

the prosecution engender doubt rather than moral certainty on the guilt of the

accused, defense prays for the dismissal of the case.

Respectfully submitted.

Dumaguete City, June 17, 2009.

JANE C. ALBINA
Counsel for the Defendant
Room 100, Portal West Building
Silliman Avenue, Dumaguete City
I.B.P. #728433; 12-24-2008
P.T.R. #9252639; 01-05-2009
All issued at Dumaguete City
Roll No. 32821; 05-08-1984
MCLE No. II-0013372; 10-22-2008
 VERIFICATION

I, THE UNDERSIGNED, Filipino, of legal age, married with office address at Sta.

Catalina, Negros Oriental, after having been sworn to in accordance with law, hereby

depose and state:

That I have caused the preparation of the above-entitled Pleading; I have read and

understood the contents of the said Pleading including all its annexes and that these are

true and correct of my own knowledge and based on authentic documents.

IN WITNESS WHEREOF, I hereunto set my hand this 8th day of August 2018 in

Dumaguete City, Negros Oriental.

SABINO GUTIB
Affiant
Driver’s License No. DO6-01-232728
Issued by the LTO
With Expiry Date on June 25, 2019

SUBSCRIBED AND SWORN to before me, in the City of Dumaguete this 8 th day

of August 2018 by the affiant who presented his competent evidence of identity indicated

below his name.

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Series of 2018