Republic of the Philippines

REGIONAL TRIAL COURT

9th Judicial Region
Branch 20
Pagadian City
-oOo-

PEOPLE OF THE PHILIPPINES, Crim. Case No. 11459-2k14

Plaintiff,

-versus- -for-

RHINO ANTONIO, VIOL. OF RA 10591

Accused.
x-------------------------------------------/

DEMURRER TO EVIDENCE
(With Leave of Court)

ACCUSED, through the undersigned counsel, most respectfully submits its

Demurrer to Evidence and avers, that:

BASIS FOR THE DEMURRER

The prosecution is burdened to prove corpus delicti beyond reasonable doubt

either by direct evidence or by circumstantial or presumptive evidence (People v.
Delim, G.R. No. 142773, January 28, 2003, 396 SCRA 386, 400,
citing People v. Fulinara, G.R. No. 88326, August 3, 1995, 247 SCRA
28). Corpus delicti consists of two things: first, the criminal act and second,
defendant's agency in the commission of the act [Gay v. State, 60 Southwestern
Reporter, 771 (1901)].

It is incumbent upon the prosecution to adduce evidence sufficient to prove

beyond reasonable doubt (a) the commission of the crime, and (b) the precise degree
of participation therein by the accused (Gutib vs. Court of Appeals, 312 SCRA 365).
The charges against an accused must be dismissed if there is no competent or
sufficient evidence adduced that would sustain the charges against him, should the
same be raised in a demurrer to the evidence.

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).

TIMELINESS OF THE DEMURRER

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.

THE PROSECUTION FAILED TO PROVE THAT

THE ACCUSED HAD INTENT TO POSSESS THE
FIREARM AT THE TIME OF HIS ARREST

In illegal possession of firearms, the elements constituting the corpus delicti

of the crime are (a) the existence of the firearm and (b) that it has been actually held
with animus possidendi (II Regalado, Remedial Law Compendium, 6th Rev.
Edition/1989/p.567, citing People vs. Camayor, CA-GR No. 6142-R, April 19, 1957).

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:

TSN-Criminal Case No. 11459-2k14 (pages 7 to 8)

Witness: PO2 Vincent Andreo T. Caballero
October 5, 2017

Q (Assistant Prosecutor Torres on Direct Examination) - So when you reached TIMMULCO,

what happened there?
A- Mr. Ruby Loriche approached us immediately and pointed to us the suspect.
Q- How far was the suspect from you when Ruby Loriche pointed him to you?
A- About 10 meters, Ma’am.
Q- Can you tell us where exactly was this suspect at that time that Ruby Loriche pointed
him to you?
A- He was standing Maa’am, in front of TIMMULCO office, Ma’am.
Q- After Loriche pointed the suspect to you, what happened next?
A- We approached the suspect together with PO2 Alex Ampaso.
Q-And then, when you approached the suspect, what happened next?
A- We asked him if he was military or police.
Q-What was the attire of the suspect at that time?
A- He was wearing an orange polo shirt and maong pants.
Q-Now, what was the response if any to your question?
A-Civilian.
Q-He said that he is a civilian?
A Yes, Ma’am.
Q- And then, what else happened?
A- I told him that we received a report that he was bringing a firearm, can I see?
Q- And what was the response if any of the man that you asked?
A- He shown us his firearm, Ma’am, he took it from his bag and voluntarily handed to us
the firearm.

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:

TSN-Criminal Case No. 11459-2k14 (pages 24, 25 and 26)

Witness: PO2 Vincent Andreo T. Caballero
October 5, 2017

ATTY. ESCALANTE: (ON CROSS EXAMINATION)

Q- Do you agree with me Mr. Witness, when you first saw the person who considered to
the suspect, he was merely standing at the vicinity of TIMMULCO at that time, would you
agree with me on that?
A- Yes, sir.
Q- You will agree with me also that at that time when you saw him standing, there will be
no indication that there was a firearm in his person?
A- Yes, sir.
Q- You will also agree with me, that merely by looking at him there is no showing or
indication that there is a firearm in his body?
A- Yes, sir.
Q- You will also agree with me, Mr. Witness, that when you arrived you were together
with your companion, you were both in police uniforms?
A- Yes, sir.
Q- What kind of uniform, Mr. Witness, is that the general office uniform or the
camouflage uniform?
A- The same as I am wearing today.
Q- That is the general office attire?
A- Yes, sir.
Q- You will agree with me Mr. Witness, that you and together with your companion can
be readily identifiable as police officers because of your uniform?
A- Yes, sir.
Q- And in fact he was facing you when you arrived at the place where he was really
standing?
A- Yes sir.
Q- Would you agree, Mr. Witness, that upon seeing you the person did not run away?
A- He did not.
Q- The person also did not show any indication that he became afraid or he was fearful of
your arrival as well as your presence?
A- Yes sir.
Q- And as a matter of fact when you identify yourselves as police officers, he answered
you and your companion promptly, candidly, and without hesitation?
A- Yes sir.
Q- At the very moment that you arrived, you saw a person and then, you identified
yourself as police officer to him, you really never had any personal knowledge that he was
there at that time carrying the firearm?
A- Yes,sir.

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.

A long line of cases decided by the Supreme Court likewise makes it

mandatory that “a valid arrest must precede the search, and not vice versa”. 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.

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:

TSN-Criminal Case No. 11459-2k14 (pages 23)

Witness: PO2 Vincent Andreo T. Caballero
October 5, 2017

Q (Assistant Prosecutor Torres on Direct Examination)- Do you have any correction to be

made in your affidavit?
A- There is a correction, Ma’am.
Q- And what is the correction?
A- Regarding the sequence between the arrest and the search of his bag?
Q- And what would it be?
A- It should be the arrest first and then the search of his bag.
 At this point, we believe that a review of the allegations in Joint-Affidavit of
Arrest identified by PO2 Caballero is in order and thus we are reproducing the
relevant portions thereof which will show the sequence that he sought to be
corrected.
“That at or about 12:30 PM, while we were at Bayog Municipal
Police Station, the person of Ruby Loriche y Cahanap called by cellphone
thru our hotline number and he informed us that suspicious person
wearing orange polo shirt and maong pants was seen standing infront of
Timbermines Multi-Purpose Cooperative (TIMMULCO), at Purok 9,
Barangay Poblacion, Bayog, and reportedly carrying .45 caliber pistol.

That acting on the report, we immediately proceeded to the

aforementioned place and there we saw Ruby Loriche who then
approached us. Ruby Loriche who was with Marcelino Legal pinpointed to
us the suspect identified as RHINO ABAN ANTONIO, 23 years old, single,
resident of Barangay Camanga, Malangas, Zamboanga Sibugay.

That Ruby Loriche accompanied us in approaching the suspect who

then carrying with him a stripe green backpack. I affiant (PO2 Vincent
Andreo T. Caballero) introduced ourselves us police officers and asked the
suspect Rhino Antonio to show up his firearm of which he acceded. Rhino
Antonio voluntarily handed to us his .45 caliber pistol with trademark
(homemade) Colt MKIV with serial number 192865 with One (1) magazine
loaded with Seven (7) live ammos and with a black holster. When we
checked his backpack, we recovered another Twelve (12) live ammunitions
for .45 caliber pistol, One (1) empty magazine for .45 caliber pistol, Twenty
six (26) pieces of plastic cable tie and One (1) packing tape;

That at this precise moment at or about 1:00 pm, April 6, 2014, we

asked from the suspect Rhino Antonio if he has with him firearm’s license
or other legal document that authorizes him to carry said firearm.
However, the suspect failed to present any which prompted us to place him
under arrest followed by apprising to him his constitutional rights: That,
we then brought the arrested suspect to Bayog Municipal Police Station for
proper disposition;”

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.

ATTY. FELIX M. ESCALANTE, JR.

Counsel for Accused-Movant
Provincial Capitol Complex
Pagadian City
Attorney’s Roll No. 57655
IBP No. 1039460, 01/03/17
Issued at Pagadian City
PTR No. 0166655, 01/03/17
Issued at Pagadian City
MCLE Compliance No. IV-0014312
Issued on March 21, 2013
MCLE Compliance V: 0005045
Issued on December 18, 2014 and
Valid until April 14, 2019
Email ad: pgochief@yahoo.com
0917-623-0775

Copy furnished:
Assistant Prosecutor Mary Ann Tugbang-Torres
Office of the Provincial Prosecutor
Justice Hall, Pagadian City

NOTICE

The Clerk of Court

Regional Trial Court
Branch 29
Justice Hall, Pagadian City

Attention: Assistant Prosecutor Mary Ann Tugbang-Torres

Office of the Provincial Prosecutor
Justice Hall, Pagadian City

Greetings!

Please submit the foregoing Demurrer to Evidence (With Leave of

Court) for the kind consideration of the Honorable Court and schedule the
same for hearing on October 24, 2017. Thank you.

ATTY. FELIX M. ESCALANTE, JR.