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Republic of the Philippines

COURT OF APPEALS – MINDANAO STATION

Cagayan de Oro City


----oOo----

PEOPLE OF THE PHILIPPINES, CA-G.R. CR. No.


12345-MIN
Plaintiff-Appellee/s,

RTC BRANCH 36,


Zamboanga City
– versus – CRIM. CASE NO. 9999

RE: ILLEGAL POSSESSION OF


FIREARM AND AMMUNITON
PENALIZED UNDER P.D. 1866, AS
AMENDED BY R.A. 8294
ANDRES BONIFACIO y DE CASTRO
Accused – Appellant/s.
x------------------------------x

Submitted by:
Nino Rejhi J.Natividad
LLB 3B
LEGAL FORMS

1
CONTENTS PAGE

COVER PAGE 1

SUBJECT INDEX 2

ASSIGNMET OF ERRORS 2-3

STATEMENT OF THE CASE 3-6

STATEMENT OF FACTS 6-8

ISSUES 9

ARGUMENTS 9-22

APPELLANT’S BRIEF

COMES NOW, Accused-Appellant ANDRES BONIFACIO y DE CASTRO


through the undersigned counsel and unto this Honorable Court, most
respectfully submits his Appellant’s Brief:

ASSIGNMENT OF ERRORS

I
THE COURT A QUO ERRED IN NOT HOLDING THAT THE ARREST
OF ACCUSED-APPELLANT WAS UNLAWFUL.

II
THE TRIAL COURT ERRED IN RESTRAINING PRESENTATION OF
THE RECEIPT EVIDENCING PAYMENT OF BAIL BOND POSTED
FOR THE ACCUSED-APPELLANT EVEN WHEN ITS ALLOWANCE
WOULD BETTER SERVE THE ENDS OF JUSTICE

III

THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED


FIREARM AND AMMUNITIONS DESPITE BEING THE RESULT OF
AN UNLAWFUL ARREST

2
IV

THE COURT A QUO ERRED IN GIVING CREDENCE AND


PROBATIVE VALUE TO THE CONFLICTING, CONTRADICTORY
AND UNRELIABLE TESTIMONY OF THE PROSECUTION’S
WITNESSES

STATEMENT OF THE CASE

On October 7, 2004, Criminal Case No. 9999 for Illegal Possession of

Firearm and Ammunition penalized under Presidential Decree No. 1866 as

amended by Republic Act No. 8294 was filed against ANDRES BONIFACIO y DE

CASTRO (Accused-Appellant) before the Regional Trial Court Branch 36 of

Zamboanga City.

The Information1 alleges:

“That on or about September 21, 2004, in the City of


Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without any
justifiable reason or purpose and with intent to possess firearm,
did then and there willfully, unlawfully and feloniously, have in his
possession and under his custody and control, one (1) .357
Revolver (paltik) marked COLT Cal. .38 with serial number 00455
and loaded with four (4) live ammunition of .38 caliber, without
first having obtained from the proper authorities concerned, the
necessary license and/or permit therefor, in flagrant violation of
the aforementioned law.

CONTRARY TO LAW.”

The accused-appellant was arraigned on October 29, 2004. Assisted by

his counsel, Atty. Jessica Soco, accused pleaded “not guilty” to the offense

charged.

1
Reproduced from the Judgment in Criminal Case No. 9999, dated April 10, 2014 (Annex “1”, hereof)

3
In the course of the trial, the prosecution presented the following

witnesses, namely:

1. PO2 Alibasa I. CALABASA, the arresting officer;

2. PCInsp. Roman C. Furigay, FESAGS Chief;

3. PO3 Basher Lutian, Investigator-on-Case;

During the trial, the prosecution presented the following pre-marked

exhibits, namely:

Exhibit A - Complaint Assignment Sheet;

Exhibit B - Affidavit of SPO2 Alibasa I. CALABASA;

Exhibit D - Case Report dated September 22, 2004;

Exhibit E - Forwarding Report dated September 22, 2004;

Exhibit F - One (1) 357 revolver marked as .38 COLT with Serial

No. 00455;

Exhibit G - Five (5) Live ammunition of 357 COLT cal;

EXHIBIT H - One (1) live ammunition of .38 caliber

Accused-Appellant testified as the only witness of the defense on March


6, 2014.

On April 10, 2014, the trial court rendered a “DECISION”2 promulgated on

even date, the dispositive portion of which reads:

“WHEREFORE, in view of the foregoing, Judgment is hereby

rendered in the above entitled case finding the accused herein ANDRES

2
Decision - Annex 1

4
BONIFACIO y DE CASTRO, guilty beyond reasonable doubt for violation of

Section 1, Paragraph 1 of Presidential Decree No. 1866 as amended by

Republic Act No. 8294 and considering the circumstances surrounding the

herein case, with no aggravating and mitigating circumstances to be

appreciated by this Court and applying the indeterminate sentence law,

this Court hereby sentences the said accused to suffer the penalty of

imprisonment of FOUR (4) months and ONE (1) Day of ARRESTO MAYOR

Maximum, as minimum to FOUR (4) Years and TWO (2) Months of Prison

Correccional Medium, as maximum and to pay a fine of P15,000.00 as

well as the costs of this suit.

Considering the accused appears to have been preventively

detained pending the resolution of this case at the Zamboanga City

Reformatory Center since October 7, 2004 until May 31, 2005, his detention

covering this period shall be considered and shall be credited in his favor.

xxx

SO ORDERED”

(Judgment dated 10th April 2014, p. 6)

A certified true copy of the Judgment dated 10th April 2014

consisting of 6 pages is appended as Annex 13.

On June 25, 2014, Accused-Appellant, through counsel, Atty.

Jessica Soco filed a NOTICE OF APPEAL4 to the Court of Appeals,

Cagayan de Oro City on both questions of fact and of law. However, on

3
supra
4
Notice of Appeal - Annex 2

5
September 14, 2015, Atty. Jessica Soco filed a Motion to Withdraw as

Counsel. The Best Law Office entered its appearance as counsel in its

November 17, 2015 Entry of Appearance with Motion for Extension of Time

to File Appellant’s Brief which the Honorable Appellate Court granted in

an Order dated March 31, 2016 and further directing appellant to file his

brief within thirty (30) days from notice.

The said Order was received by counsel on April 06, 2016. On April

28, 2016, counsel moved for a sixty (60) day extension of time to file

appellant’s brief reckoned from the expiration of the original period of

thirty (30) days or from May 6, 2016.

Hence, this Appellant’s Brief is filed within the period sought to be

extended.

STATEMENT OF FACTS

In the afternoon of September 21, 2004, while accused-appellant was

sitting in front of a house occupied by a Rex Sedlex, armed men approached

him and pointed their guns at him. Accused-appellant was unarmed. He did

not have the gun tucked in his left waist; or anywhere within his immediate

control or dominion, contrary to the allegations of the complaint.

When informed about the existence of a Warrant of Arrest against his

person, accused-appellant showed the policemen his bailbond receipt.

Notwithstanding the documents shown them, the police men handcuffed the

accused-appellant and entered the house occupied by Rex Sedlex which the

6
latter uses as the office for the Republic Agency – a security and janitorial

service provider.

Testifying for the prosecution, PO2 Alibasa I. CALABASA and PO3 Lutian,

stated that an Alberto Fernandez reported seeing the accused-appellant in his

Putik house. PO2 Alibasa claimed that the fact that a Warrant of Arrest was

pending against the accused-appellant was known to them because they

personally showed a copy of the warrant of arrest to the accused-appellant.

When asked during cross-examination where that Warrant of Arrest was, PO2

Alibasa did not know. The prosecution neither included a copy of the Warrant

of Arrest to form part of their documentary evidence or called to the witness

stand the chief of the warrant section of the Zamboanga City Police Office to

testify that a warrant of arrest was served upon the person of the accused-

appellant.

PO2 Alibasa also testified that after he served the warrant of arrest to

accused-appellant, he noticed something bulky in his left waist which when he

touched, gave him the impression that it was a firearm prompting him to

immediately search the accused-appellant.

PO2 Alibasa described that the firearm he recovered from the left waist of

the accused-appellant is a COLT cal. .38 pistol which when turned over to the

Investigator-on-case, PO3 Lutian, yielded five (5) live ammunitions - four (4) live

357 ammunitions and one (1) .38 ammunition loaded on a caliber 38 pistol.

After both the prosecution and defense presented their evidence, the

court a quo rendered judgment convicting the accused-appellant of the crime

7
charged. A Motion for Reconsideration5 of the Judgment, herein attached as

ANNEX “3”6 was filed by Atty. CALUAG raising the illegality of the accused-

appellant’s arrest as a matter not considered by the court a quo in rendering its

Judgment dated April 10, 2014.

On June 11, 2014, the court denied accused-appellant’s Motion for

Reconsideration holding that:

A perusal of the arguments raised therein by the accused-movant


in its motion, it would seem that the accused is banking on the
alleged illegal arrest and illegal search and seizure having not been
considered by this Court in arriving at its assailed Judgment of April
10, 2014 against the herein accused. On the contrary, the Court did
consider the same as it was in fact admitted by the accused himself
during his direct examination on March 6, 2014 that he indeed had
a warrant of arrest issued against him in Ipil and that he already
posted bail therefor. At the time of his arrest, in fact, he accordingly
showed the arresting officers the receipt of the bail bond he
allegedly posted for his provisional liberty thereon under Official
Receipt No. 69919770A in the amount of P30,000.00 for Criminal
Case No. 19043. Unfortunately, the subject proof that he was
already out on bail at the time he was arrested by the arresting
officers in the herein case was never submitted and offered in
evidence by the accused despite the opportunity to do so. In fact,
not a single documentary evidence was formally offered by the
accused being directed by the Court to do so in the Order of
March 6, 2014.7

Hence, this present appeal.

5
Motion for Reconsideration dated May 11, 2014

7
ANNEX “4” –Order dated June 11, 2014

8
ISSUES

I
THE COURT A QUO ERRED IN NOT HOLDING THAT THE ARREST
OF ACCUSED-APPELLANT WAS UNLAWFUL.

II
THE TRIAL COURT ERRED IN RESTRAINING PRESENTATION OF
THE RECEIPT EVIDENCING PAYMENT OF BAIL BOND POSTED
FOR THE ACCUSED-APPELLANT EVEN WHEN ITS ALLOWANCE
WOULD BETTER SERVE THE ENDS OF JUSTICE

III

THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED


FIREARM AND AMMUNITIONS DESPITE BEING THE RESULT OF
AN UNLAWFUL ARREST
IV

THE COURT A QUO ERRED IN GIVING CREDENCE AND


PROBATIVE VALUE TO THE CONFLICTING, CONTRADICTORY
AND UNRELIABLE TESTIMONY OF THE PROSECUTION’S
WITNESSES

ARGUMENTS

I
FIRST ASSIGNMENT OF ERROR

THE COURT A QUO ERRED IN NOT HOLDING


THAT THE ARREST OF ACCUSED-APPELLANT WAS
UNLAWFUL.

SPO2 Alibasa I. CALABASA (SPO2 CALABASA, for brevity) testified that he

personally received the report/complaint of a certain Alberto Fernandez

(Fernandez, for brevity) in the afternoon of September 21, 2004. According to

9
SPO2 CALABASA, Fernandez reported that he “sighted” the accused-appellant

at the latter’s residence. Mr. Fernandez’ report, however, only concerned his

filing of a case for Estafa against accused-appellant. After being told that by

Mr. Fernandez, SPO2 CALABASA immediately informed the chief of warrant, a

certain P/Insp. Castillo who conducted a briefing regarding the arrest of the

suspect. SPO2 CALABASA never mentioned that Fernandez told him that a

Warrant of Arrest was issued against the accused-appellant in connection with

the case that he filed against accused-appellant. It would appear that SPO2

CALABASA did not know that there was a Warrant of Arrest. In fact, when asked

by then counsel for the accused-appellant Atty. CALUAG during cross-

examination; witness SPO2 CALABASA admitted that Fernandez did not tell him

that there was a pending Warrant of Arrest.

SPO2 CALABASA’s testimony is reproduced below:

DIRECT EXAMINATION

PROSECUTOR JOSE DE LA CRUZ

xxx
Q Now, do you recall having reported for work on that
day, September 21, 2004, more or less in the afternoon?
A Yes, Sir, I was at the Zamboanga City Police Station.
Q Now, Mr. Witness, can you still recall if there was any
person who filed a report or complaint before your
office during that day, September 21, 2004 at around 3
o’clock in the afternoon?
A Yes, Sir.
Q Can you still remember the name of that person, Mr.
Witness?
A Yes, Sir.

10
Q Will you please state to us for the record, the name of
that person?
A Mr. Alberto Fernandez, Sir.
Q This Alberto Fernandez, to whom did he actually
reported the complaint?
A To me, Sir.
Q And can you tell us Mr. Witness, what was the report all
about?
A The report of Mr. Alberto Fernandez, according to him,
he sighted Mr. Andres Bonifacio at his residence.
Q And why did Mr. Alberto Fernandez report that the
suspect, Andres Bonifacio was seen at his residence?
A Because he filed a case for Estafa, Sir.
Q Against whom?
A Against Andres Bonifacio, Sir.
Q Now, after receiving this complaint, what did you do?
A I inform my immediate supervisor Sir, who is the chief of
warrant, then P/Insp. Castillo, Sir, who is the chief of
warrant, then P/Insp. Castillo, Sir.
Q And did you talk to him?
A Yes, Sir.
Q And what was the response of your chief?
A Immediately, he conducted a short briefing, Sir,
regarding the arrest of the subject, Sir.
Q So, after that briefing Mr. Witness, can you tell us what
happened next?
A After that briefing Sir, we immediately proceeded to
the area8

CROSS-EXAMINATION

ATTY. ED CALUAG

Q Mr. Witness, do you know Mr. Alberto


Fernandez?
A Only that day Sir, when he reported to our

8
TSN November 22, 2014, pp 5-7

11
office, Sir.
Q And it was he who told you that Andres
Bonifacio has a pending warrant of arrest?
A At that time, Sir, no Sir, he did not tell me.
Q What did he tell you?
A He just told me that he sighted Andres
Bonifacio in his residence, Sir.9

SPO2 CALABASA did not, however, hear Mr. Fernandez tell the chief of the

warrant section, P/Insp. Castillo, about a warrant of arrest having been issued

against the accused-appellant; thus he said during the same cross-examination:

Q Who told you that Andres Bonifacio has a warrant of


arrest?
A One of our companions, Sir.10

SPO2 CALABASA however, maintained that he presented the

warrant of arrest to the accused-appellant upon their arrival at the latter’s Putik

residence. Records of the case will show that no Warrant of Arrest was

presented to support his claim. In fact, in the Pre-Trial Order11, herein attached

as ANNEX “5”, a warrant of arrest was not among those documentary exhibits

listed for the Prosecution. More importantly, the testimony of P/Insp. Castillo – to

whom Mr. Fernandez allegedly reported the fact that a warrant of arrest was

issued against accused-appellant in connection with the case that the former

filed against the latter, was not offered in evidence.

It bears stressing that the accused-appellant, at the time of his

arrest, produced his release order and all documents appurtenant thereto.

9
TSN November 22, 2014, p. 29
10
TSN November 22, 2014, p. 30
11
Annex “5”, Pre-Trial Order dated March 27, 2006

12
Specifically, accused-appellant showed SPO2 CALABASA the Order of Release

dated August 24, 2004 issued by Hon. Arthur L. Ventura, Presiding Judge of the

Municipal Circuit Trial Court of Ipil-Tungawan-R.T. Lim in Ipil, Zamboanga Sibugay

province herein attached as ANNEX “6”; and, Order of Discharge from Custody

issued by Hon. Gregorio del Pilar, Presiding Judge of RTC Branch 50, Ipil,

Zamboanga Sibugay herein attached as ANNEX “7”.

When the accused-appellant was called to the witness stand, he

testified that at the time police officers approached him while he was seated

outside the house in his compound occupied by a Rex Sedlex, he showed

them the “bond” which he posted in Ipil, Zamboanga Sibugay for the case that

Mr. Fernandez filed against him.

After having posted bail, the warrant of arrest issued against

accused-appellant in connection with the Estafa case file against him ceased

to have any effect. An arrest made under the said warrant cannot be made

without running afoul with the constitutional proscriptions on unreasonable

searches and seizures.

Our Constitution recognizes the right of the people to be secure in

their persons, papers, houses and effects against unreasonable searches and

seizures. Such right is deeply enshrined in Section 2, Article III of the 1987

Philippine Constitution which states:

Sec. 2. The right of the people to be secure in their persons, houses,


papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination

13
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched
and the persons or things to be seized.

Accused-appellant testified that the original of the receipt for the

bond filed was submitted to the City Prosecutor’s Office when he filed his

Counter-Affidavit. After having identified a machine copy of the same receipt

shown to him by his counsel, Atty. CALUAG, Trial Prosecutor ACP Procy Cutor

manifested that the receipt was not included in the Pre-Trial Order for which

Presiding Judge, Hon. Lex Luthor reminded Atty. CALUAG of his ruling on matters

such as the one presented by ACP Cutor. The presentation of the receipt

evidencing payment of the bond was thus restrained by the trial court noting its

stern warning.

II

Second ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN RESTRAINING PRESENTATION


OF THE RECEIPT EVIDENCING PAYMENT OF BAIL BOND
POSTED FOR THE ACCUSED-APPELLANT EVEN WHEN ITS
ALLOWANCE WOULD BETTER SERVE THE ENDS OF JUSTICE

In the course of the testimony of accused-appellant, Atty. CALUAG

presented the machine copy of the receipt evidencing payment of the bond

for accused-appellant’s temporary liberty. ACP Cutor manifested that the

receipt was not listed in the pre-trial order to which Atty. CALUAG pleaded with

the trial court that the evidence be allowed “to form part of his testimony”. The

trial court restrained the presentation of the document, however, as reflected in

the following transcript of stenographic notes taken on March 6, 2014:

14
COURT: You know my ruling on that, I do not allow

the presentation of documentary evidences (sic)

not included in the pre-trial conference, much

more when it is a machine copy…

Atty. ED CALUAG:

Yes, Your Honor.12

Having restrained the defense counsel from pursuing introduction of

the receipt as evidence of bail being posted by the accused-appellant, then

defense counsel, Atty. CALUAG, did not offer any documentary evidence for

the reason that there is none to offer - the defense’s only documentary

evidence having been restrained introduction by the trial court in its

proceedings of March 6, 2014.13

Section 1, Rule 118 of the Revised Rules of Criminal Procedure

requires that a pre-trial conference be called for the purpose of marking for

identification of evidence of the parties, among others. The prohibition against

introduction of documents or evidence not listed in the Pre-Trial Order is not

written anywhere in the Rules. While the receipt does tend to surprise the

adverse party during trial, its introduction would undeniably prevent the

miscarriage of justice, as what the accused-appellant herein had already

occasioned when the court a quo failed to consider the illegality of his arrest.

In Domingo de Guzman vs. Sandiganbayan the Court held:

The Rules of Court were conceived and promulgated to set


forth guidelines in the dispensation of justice but not to bind

12
TSN, March 6, 2014
13
Ibid.

15
and chain the hand that dispenses it, for otherwise, courts will
be mere slaves to or robots of technical rules, shorn of judicial
discretion. That is precisely why courts in rendering real justice
have always been, as they in fact ought to be,
conscientiously guided by the norm that when on the
balance, technicalities take a backseat against substantive
rights, and not the other way around. Truly then,
technicalities, in the appropriate language of Justice
Makalintal, "Should give way to the realities of the situation."14

In Commissioner of Internal Revenue vs Mirant Pagbilao Corporation, the

Court held:

“The courts have the power to relax or suspend


technical or procedural rules or to except a case from
their operation when compelling reasons so warrant or
when the purpose of justice requires it. What
constitutes good and sufficient case that would merit
suspension of the rules is discretionary upon the
courts.”15

It is admitted that the receipt was not among those documentary exhibits

for the defense listed in the Pre-Trial Order but it cannot be denied that the

relaxation of the rules, which the court is most certainly empowered to do,

would work to the serve the ends of justice such that it would establish the

illegality of the arrest of the accused-appellant and of the search that ensued.

III

Third ASSIGNMENT OF ERROR

THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE

14
G.R. No. 103276, April 11, 1996
15
G.R. NO. 159593, October 12, 2006

16
SEIZED FIREARM AND AMMUNITIONS DESPITE BEING THE
RESULT OF AN UNLAWFUL ARREST

Having posted bail at the time of the arrest, the warrant of arrest claimed

by the prosecution’s witnesses to have been the impetus for their foray into

accused-appellant’s residence ceased to have any effect. Thus, the arrest of

the accused-appellant on September 2, 2004, when accused had already

posted bail, was one without a valid warrant.

Strengthening the protection of the people against any evidence

obtained in violation of Section 2, Article II of the 1987 Philippine Constitution,

Section 3(2) of the same article which provides:

Xxx

(2) Any evidence obtained in violation of this or the preceding


section shall be inadmissible for any purpose in any proceeding.

Thus, even assuming for the sake of argument that the firearm and

ammunitions were indeed seized from his waist, the police officers had no legal

justification to conduct a search of his person because the warrant of arrest

relied on ceased to have any legal effect when herein accused-appellant

posted a bond. The document evidencing payment of the bond was shown to

them by the accused-appellant but was ignored by the policemen, even

denying

It was never shown that accused-appellant was committing an

illegal act in the presence of the police officers to justify his arrest even without a

warrant. Thus, the arrest cannot fall under the recognized exceptions under

Section5, Rule 113 of the Revised Rules of Criminal Procedure.

17
Testing the facts of the instant case against recognized exceptions

under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, no legal

justification existed for the arrest of the accused-appellant. In order that Section

5 of the aforementioned Rule to apply certain requisites must concur:

For the warrantless arrest under paragraph (a) of Section 5 to


operate, two elements must concur: (1) the person to be
arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit
a crime; and (2) such overt act is done in the presence or
within the view of the arresting officer. On the other hand,
paragraph (b) of Section 5 requires for its application that at
the time of the arrest, an offense had in fact just been
committed and the arresting officer had personal knowledge
of facts indicating that the appellant had committed it. 16

It was never mentioned that accused-appellant was committing an

offense at the time he was arrested by the police officers to bring him within the

coercive force of the state without running afoul with the Constitution.

IV

Fourth ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GIVING CREDENCE AND


PROBATIVE VALUE TO THE CONFLICTING,
CONTRADICTORY AND UNRELIABLE TESTIMONY OF THE
PROSECUTION’S WITNESSES

“It is accepted that, as a rule, minor inconsistencies in the testimonies of

witnesses will not affect their credibility. x x x

16
People vs Villareal, G.R. No. 201363, March 18, 2013

18
However, when the inconsistencies pertain to material and crucial points,

the same detract from their overall credibility (People vs. Rodriguez, 205 SCRA

791).

In the case at bar it is hereby pointed out that the glaring inconsistencies

in the number and kind of live ammunitions as alleged in the Information and in

the conflicting testimonies of SPO2 CALABASA and PO3 Lutian on the number

and kind of ammunitions which they allegedly recovered from the accused-

appellant, and inconsistencies on other material points are such that not only

their credibility but that of the case built by the prosecution is eroded.

ON THE NUMBER AND KIND OF AMMUNITIONS SEIZED

In the Information, it is alleged that the accused-appellant was in

possession of “one (1) .357 Revolver (paltik) marked COLT Cal. .38 with serial

number 00455 and loaded with four (4) live ammunition of .38 caliber”. Both

SPO2 CALABASA and PO3 Lutian testified that there were five (5) live

ammunitions but while the information alleged that the ammunitions recovered

were of the .38 caliber, SPO2 CALABASA testified that the ammunitions

recovered were four (4) live 357 ammunition and one .38 ammunition.

Since the allegations embodied in the Information have to be proved, it

therefore behooves upon the prosecution to establish that indeed the very

objects seized during the arrest of the accused-appellant, are the ones

presented in court as the corpus delicti of the offense.

19
In the Pre-Trial Order17 of the court a quo dated March 27, 2006, the

prosecution listed as Exhibits “G” to “G-4” – five (5) live ammunition of 357 cal.

and as Exhibit “H”, one (1) live ammunition of .38 Caliber. It would already

appear, at this point, that the exhibits listed are markedly different from the ones

allegedly seized from the possession of the accused-appellant.

On August 10, 2006, SPO2 Alibasa I. CALABASA, one of the members of

the arresting team who allegedly came to execute a warrant of arrest against

herein accused-appellant, testified. With respect to the ammunitions allegedly

seized, SPO2 CALABASA stated:

DIRECT EXAMINATION:

PROSECUTOR JOSE DE LA CRUZ

Q: After turning over it to the investigator, what did the


investigator do with the said firearm?
A: I was removing and seeing if there is a bullet inside that
firearm, Sir and when he saw that there is a bullet, he removed the
bullet, Sir.
Q: Where were you when this bullet was removed by the
investigator?
A: I was in front of him, Sir.’
Q: And you know how many bullets were there when it was
removed?
A: That was five (5) live ammunitions, Sir.18

Xxx

Q: Now, Mr. Witness, you said you also saw a live bullet or live

17
supra
18
TSN, August 10, 2006, pp.17-18

20
ammunition removed by the police investigator and it was done in
your presence, can you please described (sic) to us this bullet Mr.
Witness, if you know?
A: There were four (4) live .357 ammunitions and one .38
ammunition.19 (emphasis supplied)

On November 22, 2006, the Prosecution called PO3 Basher Lutian,

Investigator-on-Case, testified:

DIRECT EXAMINATION:
PROSECUTOR JOSE DE LA CRUZ

Xxx
Q: Now Mr. Witness, you also mentioned in the Complaint Assignment
Sheet the five (5) live ammunition and initials which was identified
by the witness previously marked as exhibit “F-2”, I am showing to
you this five (5) live ammunition, will you please examine and tell us
if you can recall that five (5) live ammunition?
A: Yes sir.
Q: And can you tell us what are the relation of those five (5) live
ammunition which was submitted to you on September 21, 2004
together with the accused in this case?
A: These are the very live ammunition that were turned over to me.
Q: Can you tell us under what circumstance or circumstances that you
recognized those live ammunitions right away?
A: My markings in pilot pen as “BL” on the shells.
Q: All the live ammunitions?
A: All of them.20

From the evidence adduced by the prosecution, five (5) live ammunitions

were recovered loaded inside the “one (1) .357 Revolver (paltik) marked COLT

19
TSN, August 10, 2006, pp. 21-22
20
TSN November 22, 2006, pp. 10-11

21
Cal. .38 with serial number 00455” allegedly seized from the accused-appellant,

of which four (4) were 357 ammunitions and one (1) of the .38 caliber.

It is evident that there is not only a departure from the allegations of the

Information but that the offense charged in the Information was not proven by

the prosecution.

PRAYER

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


“JUDGMENT” dated 10th April 2014 of the trial court be REVERSED and SET ASIDE
and accused-appellant ANDRES BONIFACIO y DE CASTRO be ACQUITTED with
costs de officio.

Other forms of relief, just and equitable under the premises, are likewise
prayed for.

Zamboanga City for Cagayan de Oro City, July 4, 2016.

THE B.E.S.T. LAW OFFICE


Counsel for Accused-Appellant
ANDRES BONIFACIO y DE CASTRO
Nuñez Street, Zone 3, Zamboanga City

By:

ED CALUAG
Roll No. 22222
PTR No. 1162445, Dec. 17, 2018, Z.C.
IBP O.R. No. 897125, Dec. 17, 2018, Z.C.
MCLE Compliance No. V-0014261, 02/16/16
Copy furnished:

OFFICE OF THE SOLICITOR GENERAL


134 Amorsolo St.
Legaspi Villaae, Makati City

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