REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGIONBRANCH 223, QUEZON CITY

PEOPLE OF THE PHILIPPINES,Plaintiff,

- versus – Crim. Case No. Q-05-131745For: FALSIFICATION OF PUBLIC DOCUMENT

SPO3 ISIDORO B. BOTE,Accused.

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DEMURRER TO EVIDENCE

The Accused SONNY MANGALINDAN, through the undersigned counsel,

most respectfully submits its Demurrer to Evidence and avers:

BASIS FOR THE DEMURRER

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 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).

ARGUMENTS/DISCUSSION

The only witness for the prosecution was REYNALDO P. CAMILLO. It cannot

be overemphasized that the affidavit of the complainant and the testimony of said witness

showed that he had no personal knowledge of the alleged theft that was committed on 01

January 2006. Moreover what is more dubious is that the affidavit of said complainant

was done on 04 February 2006, more than one (1) month after the alleged incident took

place. Said witness did not see the alleged taking, stealing and carrying away of the cash

money since he was on vacation at Baguio City. Complainant was miles away when the

alleged taking, stealing and carrying away of the cash money was done. It was highly

improbable for him to witness the incident. In complainant’s affidavit, he based his

accusation only on the information of his grandson which is also the son of the accused

that it was his father who entered the room. There was no mention made that accused was

seen taking, stealing and carrying away the cash money. The same information was

given to him by his daughter who is also the wife of the accused. In other words, there

was no witness at all who had seen the alleged alleged taking, stealing and carrying away

of the cash money. Noteworthy is the fact that the grandson and the wife of the accused

did not testify to corroborate the testimony of the complainant. Hence, the basis of the

complainant in charging the accused for theft is not substantiated considering that it is

purely hearsay and have no probative value whether objected to or not. It was

emphasized by the defense in their cross-examination of said witness that he had no

personal knowledge of the circumstances surrounding the alleged taking, stealing and

carrying away of the cash money. In fact the complainant himself was having a hard

time remembering the exact amount of the cash money that was allegedly taken whether

it was P120,000.00 or P150,0000.00. There is no need to discuss the other elements of

theft since the prosecution was not able to establish the alleged taking, stealing and

carrying away of the cash money.

Indeed, any oral or documentary evidence is hearsay by nature if its probative

value is not based on the personal knowledge of the witness but on the knowledge of

some other person not on the witness stand. (2 Regalado, Remedial Law Compendium,

1989 6th Rev. Ed., p. 486). By virtue of this legal aphorism, no probative value can attach

to the alleged confession of Carlos albeit no objection thereto was interposed by the

defense. (People vs. Villahermosa, (CA) 67 O.G. 4929 citing People vs. Cabral, et. Al.

(unpub.) 58 Phil. 946; Vide, at p. 486). Verily, in criminal cases the admission of hearsay

evidence would be a violation of the constitutional provision that the accused shall enjoy

the right of being confronted with the witnesses testifying against him and to cross-

examine them. Moreover the court is without opportunity to test the credibility of hearsay

statements by observing the demeanor of the person who supposedly made them (20 Am.

Jur. 400-401; cited at 7-1, Francisco, Revised Rules of Court, 1973 ed., p. 437). People

vs. MeloSantos, 245 SCRA 569, July 3, 1995.

P R A Y E R

WHEREFORE, premises considered, it is respectfully prayed that the Honorable

Court that this Demurrer to Evidence be granted and that the criminal charge of Theft

against the accused SONNY MANGALINDAN be DISMISSED.

Other reliefs, just and equitable, are likewise prayed for.

Quezon City, Philippines, May 28, 2007.

DEPARTMENT OF JUSTICE

Public Attorney’s Office

Rm. B-29 Hall of Justice, Quezon City

By:

ATTY. CAROLINE L. TOBIAS

Public Attorney II

NOTICE OF HEARING

Hon. John Patrick CorpuzAssistant City Prosecutor

Clerk of CourtRTC 223

Greetings!

Please submit the foregoing Demurrer to Evidence for the approval and consideration of the Honorable Court on 29 May 2007 at 8:30 a.m.

CAROLINE L. TOBIASCopy Furnished:

Hon. John Patrick CorpuzAssistant City Prosecutor