Republic of the Philippines

REGIONAL TRIAL COURT

11th Judicial Region
Branch _
_, _

THE PEOPLE OF CRIM. CASE NO. _

THE PHILIPPINES,
Plaintiffs,

- versus - For: Murder

_
_,
Accused.
X - - - - - - - - - - - - - - - - - -- - - - - - x

DEMURRER TO EVIDENCE WITH LEAVE OF COURT

COMES NOW accused _ and _, through the undersigned counsel and

unto this Honorable Court, most respectfully submits this Demurrer to
Evidence, with previous leave of court, based on the following ground:

1. There is insufficient evidence to prove the guilt of the accused beyond

reasonable doubt;

2. That the accused were illegally searched, hence the firearms allegedly
confiscated by the police authorities are inadmissible as evidence
against them.

BRIEF STATEMENT OF FACTS

The accused in the present case was indicted with the crime of Murder
under Art. 248 the Revised Penal Code in an Information dated 29
December 2015, which states:
 “That on or about December 27, 2015, in _, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating with one another, armed with firearms,
and with treachery and abuse of superior strength, which is alleged
herein as qualifying circumstances, with intent to kill, willfully,
unlawfully and feloniously shot _ multiple times in a sudden and
unexpected manner while the latter was unaware and defenseless, with
manifest deliberate employment of excessive force which is out of
proportion to the means of defense available to the victim, thereby
inflicting upon the latter multiple gunshot wounds in the different
parts of his body which caused his instantaneous death, to the damage
and prejudice of the heirs of the victim.”

The accused _ and _ were subsequently arraigned before this

Honorable Court and thereafter pleaded not guilty to the Information filed
against them.

The prosecution presented six (6) witnesses, namely: 1) _; 2) _; 3) _;

4) _; 5) _; 6) _.

_, a ballistician at the Regional Crime Laboratory Office XI at Davao

City, test-fired the confiscated firearms purportedly in possession of the
accused at the time the crime was committed.

Responding officers _ and _ testified as to the acts they made when

they investigated the area subject of a purported shooting incident.

The other responding officers, _ and _, mainly handled the crime

scene and the evidence therein: the former took pictures of the crime scene
and the bullets found thereat, while the latter collected them the
aforementioned bullets.
 Finally, _, testified that he accompanied _ and _ to the police station
to report a shooting incident at _. In addition, he also said that he later urged
_ and _ to accept the invitation by the policemen, and he turned over the
firearms issued to the accused; he had no personal knowledge as to the
corpus delicti.

The prosecution rested its case after presenting the aforementioned six
(6) witnesses and after submitting their oral formal offer of exhibits in open
court.

After the closing of the prosecution’s presentation of evidence, the

defense asked this Honorable Court for leave to file its demurrer to evidence.
Said leave of court was subsequently granted.

Hence this Motion to Dismiss by way of Demurrer to Evidence.

ARGUMENTS AND DISCUSSION

There is insufficient evidence to prove the guilt of the accused beyond

reasonable doubt.

The elements of murder that the Prosecution must establish 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.1

Among the aforementioned elements, what the prosecution ultimately

failed to establish is that accused _ and _ killed _. Upon perusal of the
witness testimonies, no reasonable and prudent man can draw any
conclusion therefrom that herein accused committed murder.

1
People v. Gabrino, G.R. No. 189981, March 9, 2011
 Upon cross-examination, _ had no personal knowledge how the
sample cartridges were recovered by the police. 2 Furthermore, _ and _, who
respectively took the pictures of the bullets at the crime scene and thereafter
collected them, testified that the area was covered in darkness. It can be
inferred from such circumstance that, absent any showing that other sources
of light were present around that time, the identity of accused _ and _ could
not be ascertained by any eyewitness in the area.3

The testimonies of _ and _ were without consequence as well. In sum,

the Prosecution anchors its quest for conviction against _ and _ based on
circumstantial evidence that could not even reach the slightest cohesion, like
piecing together incompatible parts of a jigsaw puzzle.

In Espineli v. People of the Philippines,4 the High Court has posited:

Jurisprudence teaches us that "for circumstantial evidence to be sufficient to
support a conviction, all circumstances must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the same
time inconsistent with the hypothesis that he is innocent x x x." Thus,
conviction based on circumstantial evidence can be upheld provided that the
circumstances proven constitute an unbroken chain which leads to one fair
and reasonable conclusion that points to the accused, to the exclusion of all
others, as the guilty person.

Where the evidence is purely circumstantial, there must be an even

greater need to apply the rule that the Prosecution depends not on the
weakness of the defense but on the strength of its own evidence. Conviction
must rest on nothing less than a moral certainty of the guilty of the accused.5

To begin with, no witness could positively identify _ and _ as having

killed Osay. Certainly, no conclusion can be had that they shot the victim
2
Transcript of stenographic notes dated 16 March 2016, p. 18
3
Transcript of stenographic notes dated 16 March 2016, p. 27; Transcript of stenographic notes dated 03
February 2016, p. 09
4
G.R. No.179535, June 9, 2014
5
People of the Philippines v. Baulite, G.R. No. 137599, October 8, 2001
with the firearms illegally seized by the police officers. PO2 Ricky Ocampo
even testified to the effect that he could not ascertain when the bullets he
examined were fired.

Speculations and probabilities cannot substitute for proof required to

establish the guilt of the accused beyond reasonable doubt. 6 In a criminal
case, every circumstance favoring the innocence of the accused must be duly
taken into account.7

Therefore, _ and _ must be acquitted because of reasonable doubt as

to their guilt. "Every accused is presumed innocent until the contrary is
proved; that presumption is solemnly guaranteed by the Bill of Rights. The
contrary requires proof beyond reasonable doubt, or that degree of proof that
produces conviction in an unprejudiced mind. Short of this, it is not only the
right of the accused to be freed; it is even the constitutional duty of the court
to acquit them.8

The accused were illegally searched, hence the firearms allegedly

confiscated by the police authorities are inadmissible as evidence
against them.

_ and _ had conflicting accounts as to how they put _ and _ in

custody; the former said that _ and _ were merely “invited”,9 while the latter
said that they were asked to be surrendered. Regardless, under Republic Act
No. 7438 (R.A. No. 7438), custodial investigation includes the practice of
issuing an "invitation" to a person who is investigated in connection with an
offense he is suspected to have committed.

_ and _ may have already waived their right to contest the legality of
the arrest by participating in the arraignment, but they are not deemed to

6
People of the Philippines v. Jumao-as, G.R. No. 101334, February 14 1994
7
People of the Philippines v. Sinatao, G.R. Nos. 110815-16, October 25, 1995
8
Baulite supra
9
Transcript of stenographic notes dated 03 February 2016, p. 18
have equally waived the right to contest the legality of the search. When
they were arrested without a warrant, they were neither caught in flagrante
delicto committing a crime nor was the arrest effected in hot pursuit. Verily,
it cannot therefore be reasonably argued that the warrantless search
conducted on petitioner was incidental to a lawful arrest.

Under Section 2, Article III of the 1987 Philippine Constitution, "(t)he

right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."

Jurisprudence is replete with pronouncements on when a warrantless

search can be conducted. These searches include: (1) search of a moving
vehicle; (2) seizure in plain view; (3) customs search; (4) waiver or
consented search; (5) stop-and-frisk situation; (6) search incidental to a
lawful arrest and (7) exigent and emergency circumstance.

The search made was not among enumerated instances. While the
surrender by _ of the firearms may seemingly fall under the consented
search exception, the Supreme Court has declared in Caballes v. Court of
Appeals that "[c]onsent to a search is not to be lightly inferred, but shown by
clear and convincing evidence."10 The question whether a consent to a search
was in fact voluntary is a question of fact to be determined from the totality
of all the circumstances.11

The constitutional immunity against unreasonable searches and

seizures is a personal right which may be waived. The consent must be

10
G.R. No. 136292, January 15, 2002
11
Schneckloth v. Bustamonte, 412 U.S. 218
voluntary to validate an otherwise illegal detention and search, i.e., the
consent is unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion.12

Relevant to the determination are the following characteristics of the

person giving consent and the environment in which consent is given: (1) the
nature of the police questioning; (2) the environment in which the
questioning took place; and (3) the possibly vulnerable subjective state of
the person consenting. (Caballes supra)

The totality of the circumstances would infer that consent was not
freely and intelligently given: _ was alone when he was summoned to the
entrance of the remote ANG Farms by several armed police officers, under
the cover of darkness. Such scenario would send shivers to any individual
caught in a similar situation.

Having been obtained through an unlawful search, the seized firearms

are thus inadmissible in evidence against _ and _. Obviously, this is an
instance of seizure of the "fruit of the poisonous tree." Hence, such
confiscated items are inadmissible in evidence consonant with Article III,
Section 3(2) of the 1987 Constitution: "Any evidence obtained in violation
of this or the preceding section shall be inadmissible for any purpose in any
proceeding."

Therefore, _ and _ must be acquitted because the very evidence

implicating them were products of an illegal search. The Prosecution has
hinged its arguments on the illegally seized firearms, the emblematic fruits
of the poisonous tree; without them, no conviction can be sustained.

WHEREFORE, it is most respectfully prayed of the Honorable Court that

this case be dismissed for insufficiency of evidence and for failure of the
Prosecution to prove the guilt of the accused beyond reasonable doubt.
12
Valdez v. People of the Philippines, G.R. No. 170180, November 23, 2007
 Davao City, Philippines, _.

_
Counsels for the Complainant
_

By:

_
Roll #_
MCLE Compliance No. _
PTR No. _
IBP No. _

Copy furnished:
The Branch Clerk of Court

EXPLANATION

This Demurrer to Evidence is filed with this Honorable Court, and a copy
hereof is furnished upon the abovementioned, by registered mail due to
distance constraints.