Republic of the Philippines

REGIONAL TRIAL COURT

7 Judicial Region
TH

Branch 53, Lapu-Lapu City

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- CRIM CASE NO. 09876

FOR: MURDER
abcd
Accused.
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MOTION FOR LEAVE OF COURT to file

DEMURER TO EVIDENCE

Accused, by counsel, unto this Honorable Court, most respectfully

files the instant motion for leave asking permission to file demurrer to
evidence on the ground of insufficiency of evidence:

1. On July 27, 2016, this Honorable Court admitted the

documentary exhibits of the Prosecution. However, the undersigned
counsel did not receive the said Order and only came to know of it in an
order dated November 14, 2016 received on January 09, 2017;

2. Accused is filing the instant motion pursuant to Section 23, Rule

119 of the Revised Rules on Criminal Procedure which allows him five
(5) days to file the instant motion after the prosecution rests its case.
Among the grounds that accused will raise and argue on his demurrer to
evidence are as follows:

GROUNDS FOR DEMURRER

The elements of murder that the prosecution must establish are

(1) that a person was killed; (2) that the accused killed him or her; (3)
that the killing was attended by any of the qualifying circumstances
mentioned in Article 248 of the Revised Penal Code (RPC); and (4) that
the killing is not parricide or infanticide.

These are the elements that the prosecution needs to establish in

order to prove the guilt of the accused and that guilty must be beyond
reasonable doubt.

Here, the fact of the death of Kurt Ngujo is undisputed and that it
is neither parricide nor infanticide. However as to the second element
that it was the herein accused Moises Hiyas, Jr. who killed the victim
was never established, lacking the second element to establish this
crime. Thus, the accused in this case should be acquitted based on the
fact that the evidence of the prosecution is insufficient to convict him of
the said crime.
 DISCUSSION

The prosecution has five (5) witnesses namely: Zandro Ngujo,

Jason Malingin, Nestor Sator, Nestogen Catagasan, Jenie Estoque who
executed a Judicial Affidavit out of which only two (2) was presented
namely Zandro Ngujo and Jenie Estoque and was cross-examined by the
undersigned counsel.

Based on the affidavit of Jason Malingin the only witness who

claimed that the accused shot the victim, he was able to identify the
accused as the perpetrator of the crime because the latter turned back
his head and looked back at them after he shot the victim. However, he
was never presented on the witness stand for the accused to test the
truthfulness of his statements. Thus, the accused constitutional and
procedural right to confront the witness against him was thereby
impaired.

Under Article III, Section 14(2) of the 1987 Constitution, the

appellant has the right to meet the witnesses against him face to
face. Under Rule 115, Section 1(f) of the Rules of Court, he has the right to
confront and cross-examine the witnesses against him at the trial, a
fundamental right which is part of due process.

The prosecution presented the father of the victim and was cross-
examined by the accused. He clearly testified to the fact that he does
not have personal knowledge that the accused was the one who shot
the victim. He cannot prove any direct or indirect involvement of the
accused in the subject crime. A portion of his testimony on cross
examination as quoted:

ATTY. J
Q In this particular case Sir, at the time of the incident,
the shooting incident that happened at that particular date
that your son was shot you were not there personally and
witness the incident Sir, you were not there?
A Yes.

Q You were only informed by somebody that your son was

shot, correct?
A Yes.

Q And when you arrived at the crime scene your son was
there lying bloodly, correct?
A Yes.

xxx xxx xxx

Q And before the said incident, you did not know

personally the herein accused Sir?
 A Yes.

Q And you did not see him, his face before, correct?
A Yes.

Then the prosecution presented their second witness, Jenie

Estoque who did not even know the names of the driver and the
backrider (allegedly the accused). His information about the identity of
those persons riding the motorcycle was told to him only by his
companion the victim himself Kurt Ngujo. A portion of his testimony on
cross examination as quoted:

Q Do you know who is the driver of the motorcycle who

drove together with the accused and who later on came back
alone going back to your group?
A They said the driver’s name is John Paul, Sir?

Q Do you know John Paul, Sir?

A No, sir.

Q You do not know him?

A No, Sir.

xxx xxx xxx

Q And it was Kurt Ngyujo who said that he knew those

persons, correct?
A Yes, Sir.

In fact the victim himself gave assurance to them that those

(riding the motorcycle) people will not harm them as he knew them very
well. Thus, there is a remote possibility that the accused committed the
offense charged. A portion of his testimony on cross examination as
quoted:

Q And in fact, Kurt Ngujo also said and gave you the
assurance that those persons who passed by will not harm
you and he knows them very well, correct?
A That is correct, Sir.

Most importantly, his testimony failed to prove the direct or

indirect involvement of the accused in the subject crime, since he lack
personal knowledge that it was the accused who got a firearm, the
information that he had came from his companion the victim himself. A
portion of his testimony on cross examination as quoted:

Q And you said earlier that the person who was riding the
motorcycle went back to his house, is it correct?
 A Yes, Sir, because he was going to get a firearm but he
came back immediately.

Q But how come you knew that that particular person

who is riding the motorcycle went to his house when you do
not know that particular person, as you earlier mentioned?
A Because that was what was said by my companion.

Further, the said witness testified that:

Q So meaning in that particular 20 seconds, because 20

seconds is very short, from the time when the
accused passed by and made a whistle, he returned
back in 20 seconds, you saw that the accused made
a U-turn, you can see the motorcycle made U-turn
because it was only 20 seconds, so, considering that
it was only as short time that they can come back to
your place?
A What happened was: the backrider alighted the
motorcycle, the driver proceeded on his way and
then, 20 seconds time came back to where we are.

It is contrary to human experience that a person can focus on both

the person’s face when he is not familiar with it and it was the first time
that he saw that person and the thing that a person is holding which
turns out to be a gun.

Thus, in this case, there is very much doubt as to the identity of

the accused and as to whether he was the very person who shot the
victim. For both the witnesses presented does not have a personal
knowledge thereof.

Thus, the accused should be acquitted on the ground that the

prosecution does not have enough evidence to prove his guilt beyond
reasonable dout.

PRAYER

WHEREFORE, it is prayed that the instant charge be

DISMISSED on the ground of insufficiency of evidence and that herein
accused be ACQUITTED thereof.

RESPECTFULLY SUBMITTED. December 28, 2016, Cebu City, Philippines.