Professional Documents
Culture Documents
-versus- -for-
Accused.
x-------------------------------------------/
DEMURRER TO EVIDENCE
(With Leave of Court)
Section 23, Rule 119 of the Revised Rules of Criminal Procedure provides:
“Sec. 23 After the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of evidence (1) on
its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or
without leave of court.
x x x”
It is a well-settled rule that conviction for a criminal offense should be based
on clear and positive evidence and not on mere assumption. (Gaerlan vs. CA 179
SCRA 20). The burden lies upon the prosecution to prove the guilt of the accused
beyond reasonable doubt rather that upon the accused to prove that he is in fact
innocent. (People vs. Lati, 184 SCRA 336). Failing in this, the presumption of
innocence will prevail. (Sec. 1 (a) Rule 115).
The Honorable Court granted leave for the accused to file his demurrer to
evidence on October 5, 2017, giving him ten (10) days therefrom, or until October 15,
2017. Considering that October 15, 2017 is a Sunday, and the days after (October 16
and 17, 2017) were declared non-working days by virtue of the nationwide strike, this
demurrer is therefore filed today, October 18, 2017, the next working day, and thus
the same is timely filed.
According to the Supreme Court in the case of Elenita Fajardo vs People of the
Philippines, G.R. No. 190889, January 10, 2011, “(i)n dissecting how and when
liability for illegal possession of firearms attaches, the following disquisitions
in People v. De Gracia[22] are instructive:
“The rule is that ownership is not an essential element of illegal
possession of firearms and ammunition. What the law requires is merely
possession which includes not only actual physical possession but also
constructive possession or the subjection of the thing to one's control and
management. This has to be so if the manifest intent of the law is to be
effective. The same evils, the same perils to public security, which the law
penalizes exist whether the unlicensed holder of a prohibited weapon be its
owner or a borrower. To accomplish the object of this law the proprietary
concept of the possession can have no bearing whatsoever.
But is the mere fact of physical or constructive possession sufficient
to convict a person for unlawful possession of firearms or must there be an
intent to possess to constitute a violation of the law? This query assumes
significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, in which case good faith and absence
of criminal intent are not valid defenses.
When the crime is punished by a special law, as a rule, intent to
commit the crime is not necessary. It is sufficient that the offender has the
intent to perpetrate the act prohibited by the special law. Intent to commit
the crime and intent to perpetrate the act must be distinguished. A person
may not have consciously intended to commit a crime; but he did intend to
commit an act, and that act is, by the very nature of things, the crime itself.
In the first (intent to commit the crime), there must be criminal intent; in
the second (intent to perpetrate the act) it is enough that the prohibited act is
done freely and consciously.
In the present case, a distinction should be made between criminal
intent and intent to possess. While mere possession, without criminal intent,
is sufficient to convict a person for illegal possession of a firearm, it must
still be shown that there was animus possidendi or an intent to possess on
the part of the accused. Such intent to possess is, however, without regard to
any other criminal or felonious intent which the accused may have harbored
in possessing the firearm. Criminal intent here refers to the intention of the
accused to commit an offense with the use of an unlicensed firearm. This is
not important in convicting a person under Presidential Decree No. 1866.
Hence, in order that one may be found guilty of a violation of the decree, it is
sufficient that the accused had no authority or license to possess a firearm,
and that he intended to possess the same, even if such possession was made
in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless
possession or control of a firearm cannot be considered a violation of a
statute prohibiting the possession of this kind of weapon, such as
Presidential Decree No. 1866. Thus, although there is physical or
constructive possession, for as long as the animus possidendi is absent, there
is no offense committed.[23] (citations omitted)
A review of the oral testimony of the lone eyewitness presented by the
prosecution will show that the accused did not have the animus possidendi of the
firearm at the time of his arrest. May we invite the court’s attention on the following
portions of the testimony of PO3 Vincent Caballero, viz:
The foregoing will actually demonstrate that the accused only had temporary,
incidental, casual or harmless possession or control of a firearm which cannot be
considered a violation of the statute prohibiting the possession of a firearm.
Notwithstanding his physical possession thereof, animus possidendi cannot be
established as the accused did not have any predeliction to use the same in
the commission of a crime. Consider the following portions of witness
Caballero’s testimony:
Since courts cannot penetrate the mind of an accused and thereafter state its
perceptions with certainty, resort to other evidence is necessary. Animus possidendi,
as a state of mind, may be determined on a case-to-case basis by taking into
consideration the prior or contemporaneous acts of the accused, as well as the
surrounding circumstances. Its existence may and usually must be inferred from the
attendant events in each particular case (“PEOPLE OF THE PHILIPPINES vs
Carlos Dela Cruz, G.R. No. 182348 November 20, 2008, citing People v.
Lagata, G.R. No. 135323, June 25, 2003).
Apart from the testimony of the lone witness, there is no other evidence which
will show that accused had the animus possidendi over the said firearm. On the
contrary, the prior and contemporaneous acts of the accused however, in not running
away upon the arrival of the police, in not being afraid of their arrival and presence,
and in promptly, candidly and without hesitation answering and cooperating with
the arresting officers, will actually show that he did not have animus possidendi over
the same. This is coupled by the fact that when he was arrested, he was merely
standing, the alleged firearm was not recovered from his body but was inside the bag,
and he allegedly himself even handed the same to the witness, thereby indicating
that he did not intend to commit any crime and if true that he was in possession
thereof, the same was merely fleeting, temporary, momentary and without any intnet
to violate the law.
THE SEARCH PRECEDED THE ARREST; THE
PROSECUTION FAILED TO PROVE THAT THE
ARREST OF THE ACCUSED WAS VALID AND
LEGAL UNDER THE CONSTITUTION AND THE
RULES OF COURT
Under the Rules of Court, Rule 113, Section 5, a warrantless arrest, is lawful
under three circumstances:
1. When, in the presence of the arresting officer, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense. This is
the "in flagrante delicto" rule.
2. When an offense has just been committed, and he has probable cause to believe,
based on personal knowledge of facts or circumstances, that the person to be
arrested has committed it. This is the "hot pursuit" arrest rule.
3. When the person to be arrested is a prisoner who has escaped from a penal
establishment.
In the instant case, the initial portions of the oral testimony of PO2 Caballero
will tend to show that what happened on the accused was an in flagrante delicto
arrest. As the oral testimony however went on, the witness will now begin to reveal
that his oral testimony is in contrast and materially inconsistent with his allegations
in the Joint-Counter Affidavit which he identified in open court and which was used
as basis for the filing of the criminal information in this case. Please consider these:
This is in stark contrast and materially inconsistent with the oral testimony of
the witness when he said that:
TSN-Criminal Case No. 11459-2k14 (pages 30, 31, and 32)
Witness: PO2 Vincent Andreo T. Caballero
October 5, 2017
Q (On cross-examination)- Now Mr. Witness, you were asked earlier whether there
were errors in your affidavit and you said there was an error with regards with the
sequence, is that correct?
A- Yes, sir.
Q- Is it not a fact, Mr. Witness, it is only now you are changing the contents of your
affidavit having therein the sequence leading to the arrest of this person, would you
agree with me on that?
A- When I review reading in my affidavit, sir.
Q- But you will agree with me that this affidavit was prepared three (3) years ago
exactly on April 2014, am I correct?
A- Yes, sir.
Q- And in fact, you were present when this particular Joint Affidavit of Arrest was
prepared?
A- Yes sir.
Q- And in fact, it was you who narrated to the investigator?
A- Yes, sir.
Xxxxxxxxx
COURT:
Q- Whatever is in your affidavit that you are referring to?
A- Pagsearch nakosa iyang bag. Your honor, nauna man gud tong pag-arrest niya.
FISCAL TORRES:
Q.- You tell the Court first what was in your affidavit and then what is the correction?
A- What is put in my affidavit is that he handed it the firearm and I checked his bag
and then I arrested him, but the correct one is I arrested him and then i searched his
bag.
Considering the fact that the preparation of the JointAffidavit of Arrest was
immediately after the arrest, we believe that the contents thereof should be given
more credence than the present testimony of the witness given more than three (3)
years after the fact of arrest. We believe that the “correction” sought by the witness is
not an innocent effort to shell out the truth but is actually an afterthought after he
realized that he should show to the court that the warrantless arrest was made first
before the subsequent search was made. We believe this is fatal to the prosecution as
this shows a complete disregard of the rule that a valid arrest must precede the
search, and not vice versa”. This is likewise an afterthought as the witness may have
realized that any evidence obtained during an illegal search in violation of this rule
(even if it confirms initial suspicion of felonious activity) is considered absolutely
inadmissible for any purpose in any proceeding, since it is considered to be the fruit
of a poisonous tree.
This portion of the testimony of the witness likewise breaks wide open the
issue on whether or not indeed the accused voluntarily handed over to him a firearm.
We believe this is incredible. Considering the circumstances mentioned above, it is in
all likelihood and consistent with ordinary human experience that the accused was
first searched and arrested. This is the reason why in the Joint-Affidavit of Arrest,
the arresting officer-witness categorically declared that he searched first the bag and
later on arrested the accused. This must be so as the affidavit of arrest is reflective of
a recollection of a very fresh event. This must be so because at the time the same was
prepared, the arresting officer as well as the investigator had not yet realized the
legal consequence of such averments, that is, that an arrest must first happen or
precede the search, otherwise it will be illegal, and the gun recovered from the
accused cannot be considered as evidence of the corpus delicti as it is the fruit of the
poisonous tree and should be excluded in any proceeding, including this case.
PRAYER
WHEREFORE, it is most respectfully prayed of the Honorable
Court that an Order issue acquitting the accused based on the grounds
above-cited.
Other reliefs just and equitable are likewise prayed for.
Respectfully submitted this 18th day of October 2017 at Pagadian
City, Philippines.
Copy furnished:
Assistant Prosecutor Mary Ann Tugbang-Torres
Office of the Provincial Prosecutor
Justice Hall, Pagadian City
NOTICE
Greetings!