MOTION TO DISMISS BY WAY OF DEMURRER TO EVIDENCE

ACCUSED, by counsel, unto this Honroable Court, with prior leave of court,
most respectfully moves to dismiss the above-entitled criminal case against
accuse SAMSON ORQUE, by way of demurrer, due to insufficiency of the
prosecution’s evidence, and respectfully avers that:
(THE INDICTMENT)
(THE EVIDENCE FOR THE PROSECUTION)
(ARGUMENTS – why should the case be dismisse; insufficiency of evidence
should be among those enumerated, showing why the same is insufficient)
(Prayer)
(notice of hearing, proof of service, explanation)
STATEMENT OF THE CASE AND FACTS

Samson Orque was indicted for the crime of RESISTANCE TO ARREST

under an Information, which alleges:

“That on or about the ____,

 During arraignment, accused with the assistance of counsel de parte in
the person of Atty. ____, pled not guilty to the Information. Thereafter trial
proceedings ensued.
The prosecution sought to prove the guilt of the accused through
circumstantial evidence through testimonies of its four witnesses,
namely_________.

SPO1 ___, one of the arresting officer substantially testified that accused
____ (based testimonies in the TSN…….., direct and cross exams…)

DISCUSSION

The prosecution miserably failed to prove the supposed unbroken chain

of circumstantial evidence that accused committed the crime.

The prosecution was emphasizing the fact that the ………… The
prosecution presented photographs as exhibits…Noteworthy is the fact …..

Noteworthy that the prosecton witness SPO1 … admitted in court that

….

As in criminal cases, speculation and probabilities cannot take the place

of proof required to establish guilt beyond reasonable doubt. 1

1
People v Balderas, G.R. No. 106582, July 31, 1997, 276 SCRA 470.
 Evidence showing a mere possibility of guilt, no matter how strong, is
insufficient to warrant a conviction. 2

In the appreciation of evidence in criminal cases, it is a basic tenet that

the prosecution has the burden of persuasion in establishing the guilt of the
accused for the offense he is charged – ei incumbit probation non qui negat. The
conviction of the accused must rest not on the weakness of his defense but on
the strength of the prosecution’s evidence. 3
Otherwise, we will see the absurdity of an accused being put in a more
difficult position where the prosecution’s evidence is vague and weak than
where it is strong.4
The presumption of innocence is founded upon the basic principles of
justice and is a substantial part of the law, it cannot be overcome by mere
suspicion or conjecture.5 Under our criminal justice system, 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. 6 This applies with
more vigor in the case at bar where the evidence of the prosecution is purely
circumstantial. A judgment of conviction must rest on nothing less than a moral
certainty.7

In summation, the defense respectfully submits that the pieces of

circumstantial evidence are insufficient to prove the guilt beyond reasonable
doubt of accused SAMSON ORQUE for the crime of Resistance to Arrest. They
do not pass the requisite moral certainty, as they admit of the alternative
inference that other persons, not necessarily the accused, may have
perpetrated the crime. Where the evidence admits of two interpretations, one

2
People v Comesario, 306 SCRA 400-404 (1999).

3
People v Fabon, 328 SCRA 302, 318 (200); citing People v. Masalihit, 300 SCRA 147 (1998); People v. Olivarez, Jr.,
299 SCRA 635 (1998).
4
People v. Manambit, G.R. Nos. 72744-45, April 18, 1997, 271 SCRA 344.
5
People v. Isla, 278 SCRA 160.
6
People v. Vasquez, 280 SCRA 160.
7
People v. Canlas, G.R. No. 141633, Dec. 14, 2001, citing People v. Caparas, Jr. 290 SCRA 78 (1998).
of which is consistent with guilt, and the other with innocence, the accused
must be acquitted. Indeed, it ould be better to set free 10 men who might be
probably guilty of the crime charged thatn to convict one innocent man for the
crime he did not commit.8

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Court that the Information for Resistance against the accuse
Samson Orque be DISMISSED for insufficiency of evidence.

Borbon, Cebu, Philippines. June ___ 2021.

NOTICE OF HEARING
The Branch Clerk of Court

Prosecutor’s Office

Greetings:

Please take notice that the foregoing motion is submitted for the
consideration and resolution of the Honorable Court on ___ at ___ in the
morning.

8
People v. Capili, 333 SCRA 335, 366 (2000).
 ATTY. CONCEPCION T. CEJANO

Copy furnished:
Hon. City Prosecutor
Prosecutor’s Office