REPUBLIC OF THE PHILIPPINES

First Judicial Region

MUNICIPAL TRIAL COURT
Baguio City
Branch 426-A

PEOPLE OF THE PHILIPPINES, Criminal Case No.: 8401-22

Plaintiff,
For: Reckless Imprudence
-versus- Resulting in Damage to
Property
HARRY JAMES CABELLERO,
Defendant.
x------------------------------------------x
MOTION TO DEMURRER

DEFENDANT, through the undersigned counsel and unto this

Honorable Court, respectfully submits this Motion, averring the following:
1. The defendant is presently being indicted for Reckless Imprudence
Resulting in Damage to Property filed before this Honorable Court;
2. The prosecution has already rested its case on March 3, 2023, with the
complainant presented as its witness, and has formally offered its
evidence;
3. The admissibility of exhibits so offered has been resolved.
4. During the hearing on March 3, 2023, the defendant was granted leave
by this Honorable Court to file Demurrer to Evidence on March 11,
2023. Hence, the defendant files this Motion based on the following
grounds:

I. The prosecution failed to adduce sufficient evidence to warrant the

conviction of the defendant beyond a reasonable doubt.
Rule 133, Section 2 of the Revised Rules on Evidence states that the
accused is entitled to an acquittal, unless his guilt is shown beyond
reasonable doubt. Accordingly, it is incumbent upon the prosecution to
establish the guilt of an accused, relying on the strength of its own evidence,
and not banking on the weakness of the defense of an accused.1 In relation to
the crime of reckless imprudence, it is well entrenched in jurisprudence2 that
the prosecution must establish the elements of the crime, to wit: (1) the
offender does or fails to do an act; (2) the doing or the failure to do that act is
voluntary; (3) it be without malice; (4) material damage results from the
reckless imprudence; and (5) there is inexcusable lack of precaution on the
part of the offender, taking into consideration his employment or occupation,
degree of intelligence, physical condition, and other circumstances regarding

1
Macayan v. People, G.R. No. 175842 (March 18, 2015) (Phil.)
2
Senit v. People, G.R. No. 192914 (January 28, 2016)(Phil.).

Page 1 of 7
persons, time, and place. After the presentation of the witness and evidence,
upon the facts and the law, the prosecution failed to establish the last two (2)
requisites.

Material damage did not result

from the reckless imprudence

To constitute reckless driving, it must be willful, wanton or reckless

disregard for the safety of others which “involve a conscious choice of a
course of action which injures another, either with knowledge of serious
danger to others involved, or with knowledge of facts which would disclose
the danger to any reasonable person.”3 The act must be something more than
mere negligence in the operation of a motor vehicle.4 Notably, in Exhibit C
and C-1 of the prosecution, it can be shown that the vehicle of the accused
was in its lawful lane on the inner lane of the right lane in the four-lane
highway when the incident happened. With this, since the accused was duly
driving in his proper lane, it cannot be gainsaid that the accused made a
conscious choice of a course of action with indifference to the possible
injury or danger to another. Nothing more in the testimonial nor
documentary evidence presented by the prosecution established that the
accused drove recklessly in the manner as provided for in the jurisprudence.
Hence, the material damage sustained by the complainant did not result from
reckless imprudence since the prosecution failed to establish that the accused
was driving in a reckless manner.

There is no inexcusable lack of precaution

on the part of the offender

As stated by the accused in his Judicial Affidavit in A7 and in his

cross-examination, the traffic condition during the incident was moderate,
which restrained the speed of the motorists. Notably, in such traffic flow,
Section 35 of R.A. No. 4136 requires drivers of a motor vehicle on a
highway to drive the same at a careful and prudent speed, not greater nor
less than that which is reasonable and proper. The accused complied with
such provision as he was driving at a moderate speed as testified in his
Judicial Affidavit, which is consistent with the testimony of the complainant
regarding the flow of traffic.

Furthermore, the accused was a holder of a driver’s license which

means that he possesses the necessary qualifications and proficiency in the
operation of motor vehicles in accordance with R.A. No. 41365. This means
that he is competent and knowledgeable to employ reasonable care expected
of him in driving an armored vehicle. Additionally, he could not have
secured the said license if he did not meet the requirements by the Land
Transportation Office, which include, among others, that he be physically
3
Gonzaga v. People, G.R. No. 195671 (January 21, 2015) (Phil.)
4
Dumayag v. People, G.R. No. 172778. November 26, 2012
5
Section 23, Land Transportation and Traffic Code.

Page 2 of 7
 and mentally fit to operate a motor vehicle and have no unsettled traffic
violations. As a driver of an armored car, it carries the presumption that he
has acquired a certificate of training from the Armored Services Association
of the Philippines or other related association.6
Since the accused was slowly driving on the innermost lane where he
was supposed to be, and he was on the road with proven competency, there
is no imprudence or negligence that can be imputed to the defendant in
consideration of the time, the place and the totality of the circumstances. In
the absence of such negligence, it would be impossible for the prosecution to
prove that defendant acted in utter disregard of the consequences of his
action, as it is the “inexcusable lack of precaution or conscious indifference
to the consequences of the conduct which supplies the criminal intent and
brings an act of mere negligence and imprudence under the operation of the
penal law.”7
Therefore, for failure to prove the last two (2) requisites of the crime
charged due to insufficiency of evidence, the prosecution failed to prove the
guilt of the accused beyond reasonable doubt.

II. The complainant’s own negligence was the immediate and

proximate cause of his injury and thus, he cannot claim damages.
Under Art. 2179 of the Civil Code, when the plaintiff's own
negligence was the immediate and proximate cause of his injury, he cannot
recover damages. The testimony of the witness of the prosecution shows that
the complainant’s acts before the incident is the proximate cause of the
damages it sustained.
Prior to the incident, in relation to A8 of the Judicial Affidavit of the
complainant, the prosecution seems to want to impress to this Court that
were it not for the jeepney, the complainant would not have suddenly
stopped, which at such juncture, the defendant allegedly bumped his vehicle.
However, the prosecution failed to present any evidence of the existence of
said jeepney. During cross-examination, not only did the complainant affirm
the absence of any evidence pointing to the identity of the jeepney, but he
was also not able to recall the identity of the driver. The defense is of the
position that it was merely the complainant’s plot to excuse himself of his
own negligence in shifting lanes by stating the jeepney was the reason for
his sudden stop.
Moreover, the complainant was shown to be negligent because, before
the incident, he was shifting lanes despite the heavy traffic in the area as
attested by the complainant during the cross examination. It can be shown
that his vehicle has covered approximately one-eighth (⅛) of the innermost
lane as evidenced by Exhibit C and C-1 of the prosecution. Section 44 (a) of
R.A. No. 4136, as amended, requires that the complainant must have “before
starting, stopping x x x from a direct line, shall first see that such movement

6
Filipino Driver’s Manual. Vol 1 (2021) 2nd Edition.
7
Ibid.

Page 3 of 7
 can be made in safety”. During the complainant's cross-examination, he was
asked what he did before he decided to shift lane, to which he responded,
“Naka-on po ang aking signal light.” Afterwards, when he further confirmed
that he was indeed shifting to the innermost lane, he answered in the
affirmative adding, “xxx nakahinto po ako diyan.” With this, the defense
posits that despite turning on his signal light, he was nevertheless negligent
in complying with traffic rules and etiquettes which requires him to observe
the following measures, to wit: (a) check traffic ahead, behind and on the
sides; (b) check the rearview mirror and side mirrors for approaching
vehicles, and (c) take a quick glance on the blind spots.8 These precautionary
measures are obviously not followed by the complainant when he intended
to shift lanes. He further mentioned in his cross-examination that he did not
see the defendant’s armored van approaching which is a clear indication that
he did not check his rearview mirror and side mirrors for approaching
vehicles before changing lanes. Accordingly, the complainant failed to
exercise reasonable care by ensuring that it is safe to shift to the lane of the
defendant considering the traffic condition as the law and regulations
expects of him.
The acts of the complainant in disregarding the traffic rules which
impose a requirement to do a definite act is negligence per se9. Stated
otherwise, a person driving a vehicle is presumed negligent if at the time of
the mishap, he was violating a traffic regulation.10 Verily, the complainant’s
negligence or inexcusable lack of precaution is the proximate cause of the
collision, resulting in the damage sustained by the vehicles of the
complainant and the defendant. Therefore, the complainant cannot claim
damages.

III. The compromise agreement allegedly executed by the complainant

and the defendant lacks consent of the latter contrary to the
requisites of Article 1318 of the Civil Code, and hence, null and
void.
A compromise agreement is a contract whereby the parties make
reciprocal concessions.11 Accordingly, Art. 1318 of the Civil Code states that
a valid compromise must have the following elements, to wit: (1) the
consent of the parties to the compromise; (2) an object certain that is the
subject matter of the compromise; and (3) the cause of the obligation that is
established.
The prosecution avers the complainant claims that they have reached
an agreement, on the day of the incident, that the accused will shoulder the
damages sustained by the complainant’s vehicle as a result of the accident,
and reduced the same in writing on June 27, 2022. Consequently, the
prosecution presented Exhibit B-1 appearing to be signed by the
complainant, the defendant, and their witness, Police Officer 1 Mark
8
Filipino Driver’s Manual. Vol 1 (2021) 2nd Edition.
9
Anonuevo v. CA, G.R. No. 130003 (October 20, 2004)
10
Filipinas Synthetic Fiber Corporation v. Wilfredo De Los Santos, et al., GR No. 152033 (March 16, 2011)
11
Asset Pool, Inc. v. Clark Development Corp., G.R. No. 205915 (November 10, 2015)

Page 4 of 7
 Ordinario. However, the prosecution did not adduce any other evidence that
will establish that the consent of the defendant was given intelligently,
freely, and spontaneously12 in such a settlement. Truly, where consent is
wanting, the contract is non-existent.13
Moreover, it is worthy to note that the said compromise agreement
was not dated and is not duly notarized. Hence, it did not become a public
document and there is no prima facie evidence of its due execution. 14 For
these reasons, the compromise agreement cannot be relied upon to conclude
the liability of the accused as to the actual damages claimed by the
complainant as it is null and void.

IV. The prosecution failed to establish that the complainant is entitled

to any damages.
Jurisprudence holds that the acquittal of the defendant in the criminal
action is a bar to his civil liability based upon the same criminal act.15 For
failure to establish reckless imprudence and inexcusable lack of precaution
of the defendant, the prosecution failed to establish his guilt beyond
reasonable doubt as to the crime of reckless imprudence resulting in damage
to property. Following the jurisprudence, the complainant’s claim for
damages has no leg to stand on. Thus, the complainant is not entitled to an
award of damages.

PRAYER
WHEREFORE, premises considered, the defendant respectfully
prays the Honorable Court to resolve and grant the Motion to Demurrer to
Evidence, and to order the following:
(1) The case be dismissed with finality; and
(2) The defendant be allowed to present his testimonial and
documentary evidence in the event that this Motion to Demurrer be
denied.
Conceding unto the defendant such other reliefs that this Honorable
Court may deem just and equitable in the premises.
It is respectfully submitted.
City of Baguio, March 11, 2023.

12
Lim v. San and Lo, G.R. No. 159723 (September 9, 2004)
13
Ibid.
14
Sec. 30, Rule 132 (B), Rules of Court.
15
Corpus v. Paje, G.R. No. L-26737 (July 31, 1969)

Page 5 of 7
 MAKK LAW AND ASSOCIATES
Counsel for the Defendant
hello@makklaw&associates.com | (063) 334 8912
Room 231, 2F Grand Sierra Pines Hotel,
#43 North Outlook Drive, Baguio City, 2600 Benguet

By:

Atty. Kenjo Ernesto S. Bay-an Atty. Mary Luz A. Ebes

knjoeb@makklaw&associates. maryluz@makklaw&associates
Roll of Attorneys No. 80080 Roll of Attorneys No. 78790
IBP Lifetime No. 08237 IBP Lifetime No. 07348
PTR No. 176346/01-05-23/Baguio City PTR No. 287457/01-07-23/Baguio City

Atty. Aeron Sean D. Nesperos Atty. Kriselle Armi S. Umingan

aeronsean@makklaw&associates. krisellearmi@bgulaw.com
Roll of Attorneys No. 08544 Roll of Attorneys No. 80990
IBP Lifetime No. 08448 IBP Lifetime No. 08589
PTR No. 3785774/01-06-23/Baguio City PTR No. 167679/28-06-23/Baguio City

Copy furnished through personal service:

Office of the Provincial Prosecutor

Hall of Justice
Lingayen, Pangasinan

Atty. King Blas Jervin Pagtailan (Lead Private Prosecutor)

KING BJ and Associates
Counsel for the Plaintiff
#69 Mezzanine, TELOF Building,
Post Office Loop, Session Road,
Baguio City

Page 6 of 7
 NOTICE OF HEARING

Office of the Provincial Prosecutor

Hall of Justice
Lingayen, Pangasinan

Atty. King Blas Jervin Pagtailan

Lead Private Prosecutor
KING BJ and Associates
Counsel for the Plaintiff
#69 Mezzanine, TELOF Building,
Post Office Loop, Session Road,
Baguio City

Greetings!
Please take notice that the foregoing Motion to Demurrer to Evidence
is hereby submitted, for consideration and grant of the Honorable Court on
March 11, 2023, at 4:00 in the afternoon at Municipal Trial Court of Baguio
City, Branch 426-A.

Atty. Kriselle Armi S. Umingan

Counsel for the defendant
krisellearmi@bgulaw.com
Roll of Attorneys No. 80990
IBP Lifetime No. 08589
PTR No. 167679/28-06-23/Baguio City

Page 7 of 7