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DEMURRER TO EVIDENCE
(With Leave of Court)
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).
The Honorable Court granted leave for the accused to file his demurrer to
evidence on ___________, giving him ten (10) days therefrom, or until
_______________. This demurrer is therefore timely filed.
Q- How will you able to know that the person who pointed a gun at you together with
your chainsaw operator Benjie Bayawa is a certain Ian Loquillano?
A- Because he always go to our place and in the cockpit and I always see him.
Q- What was he wearing during that time if you could recall?
Interpreter: There was an action demonstrated by the witness on his face.
Pros. Villa: Can you tell this Honorable Court what was that action you made a while
ago on your face?
A. His bonnet is just until here that doesn’t cover his face so I can really see his face.
The foregoing will seem to suggest that the witness was able to see the accused
as he was accordingly wearing a bonnet in such a fashion that his face is not covered.
It is however our contention that the said testimony should not be believed and taken
hook, line and sinker by the Honorable Court as the same is contrary to human
experience, especially in the crime of robbery wherein the perpetrator will act at great
lengths in order to hide his identity to the victim/s. In fact, the testimony of the witness
later will on will suggest, although with so much evasiveness, that he initially told the
police investigator that he did not see the face of the accused as he was then wearing a
bonnet and because of that his case against the accused is weak. Please consider the
following, viz:
Apart from the testimony of the complaining witness, there is no other evidence
which will show that the assailant was wearing a bonnet and in such a way that his face
is exposed. On the contrary, the testimony of the operator of the chainsaw will show a
material discrepancy and inconsistency as to the identity of the assailant as well as the
credibility of the complaining witness in identifying the accused as the assailant. The
testimony of Benjie Bayawa is in point, viz:
A close look however into the latter portion of the testimony of witness Benjie
Bayawa will show that the name of the accused was just inserted into his affidavit,
despite his allegation that he did not actually see who the assailant was. This portion
of the testimony is in point:
This portion of the testimony of Benjie Bayawa breaks wide open the issue on
whether or not it was true that the assailant was wearing a bonnet with his face
exposed when the complainant allegedly saw him. We believe this is incredible.
Considering the circumstances mentioned above, it is in all likelihood and consistent
with ordinary human experience that the assailant was indeed wearing a bonnet with
his face covered and that the complaining witness could not identify the said assailant.
It is highly likely that when the incident to the police, he was apprised that his case
against the accused is inherently weak and that is why the allegation should be made
that despite the assailant wearing a bonnet, his face was fully exposed to him.
With all the foregoing, it is our humble contention that the prosecution has
failed to prove the guilt of the accused beyond a reasonable doubt, hence this
Demurrer.
PRAYER
Copy furnished:
Prosecutor Ralph Villa
Office of the Provincial Prosecutor
Justice Hall, Pagadian City
NOTICE