Republic of the Philippines

MUNICIPAL TRIAL COURT IN CITIES

11th Judicial Region
Branch 1, Davao City
People of the Philippines
Criminal Case No.128,634-A-07
-

versus

FOR:

Qualified Trespass to Dwelling

AURORA BATERNA, ET. AL.,

Accused.
X-------------------X

MOTION FOR LEAVE OF COURT TO FILE

DEMURRER TO EVIDENCE

Comes

now Accused, Aurora Baterna and Rodolfo A. Baterna,

respectfully aver:

1. That the Honorable Court have admitted the Documentary

Exhibits of the Prosecution sometime in the morning of
November 13, 2012;

GROUNDS
2. That non-of the prosecutions witness testified to have
seen that the spouses Aurora and Rodolfo Baterna have
committed the felony charge in the instant case;

3. The following are the witnesses of the prosecution and the

gist of their testimonies:
a. Eduardo Bautista Jr.

this

witness

testified

sometime in the morning of March 18, 2010. His

testimony was all about his assistance to the Private
Complainant who is his church mate. He testified that
he knew about the incident only upon the narration
of the Private Complainant and that when they went
to the house they saw many people {please see
Page 4 of the TSN dated March 18, 2010}. Thus,
specifically stating that he did not saw the felony
committed by any of the thirteen (13) Accused;
b. Melany Basuil

- who testified that she is the

private complainant and that she knows the person

of the spouses Aurora and Rodolfo Baterna. She
testified twice in open court, the second one was
with serious objection from the Defense. In her
second testimony dated November 9, 2010 she
categorically testified that she was not at the subject
house when the alleged incident happened. In open
court she testified that she did not witnessed the
felony alleged upon against all the fifteen Accused,
including the spouses Aurora and Rodolfo Baterna
{please see Page 4 of the TSN dated Nov. 9,
2010} ;
c. Rodrigo Piastro

in the morning of July 27,

2010 Rodrigo Piastro testified in open court. Upon its

presentation he only identified his affidavit and his

signature thereof.
That in August 30, 2012 the prosecution moved to
recall Rodrigo Piastro, however, upon serious lawful
objection from the Defense and sound decision from
the Honorable Court, it was not allowed;
d. Atty. Gerardo Braganza

his testimony about

his assistance to the Private Complainant was

stipulated upon;
e. PO2 Rodel Cerbo -

for purposes of identifying the

Police Blotter his testimony was stipulated to;

f. Florencio Lavisores and Euberto Luib did not testify in
open court;
4.

That there are at least thirteen (13) accused in the

instant case and none of the witnesses presented by the
Prosecution clearly and categorically testified that he or
she saw any of the thirteen (13) accused committed the
offense charge;

5. The Prosecution failed to prove by direct and clear

evidence the participation of any of the thirteen (13)
accused, particularly, the Accused spouses Aurora and
Rodolfo Baterna;
6. It is hereby emphasized that the instant case is governed
by the Regular Rules and not under Summary Rules. Thus,
the affidavit of Rodrigo Piastro cannot be considered his
direct testimony. In addition, there are several legal

reasons why his affidavit cannot and should not be

considered his direct testimony, they are the following:
a. When Rodrigo Piastro was presented in the witness
stand, the Prosecution did not made an offer that in
lieu of his direct testimony shall be his affidavit;
b. By its own act of trying to recall the witness last
August 30, 2012 hearing, the Prosecution

itself

admits that Rodrigo Piastros affidavit is not sufficient

to be considered as his direct testimony;
c. That

the

Honorable

Court

admitted

all

the

documentary exhibits of the Prosecution as part of

the testimony of the witnesses only, and not as the
witness own testimony;
7. That the Prosecutions failure to present concrete and
enough witness over the participation of the Accused
spouses Aurora and Rodolfo Baterna is a ground for the
dismissal of the instant case for Demurrer to Evidence;

PRAYER

WHEREFORE, premises considered it is respectfully prayed

of this Honorable Court to allow the Accused Aurora Baterna and
Rodolfo

Baterna

to

file

its

corresponding

EVIDENCE.

DEMURRER

TO

Other reliefs just and equitable are likewise prayed for.

19th November 2012. Davao City, Philippines.
Assisted by:

ATTY. LUWILL TIU AL-AG

Counsel for Accused Aurora and Rodolfo Baterna

IBP No. 870588 01-2-12 D.C.
PTR No. 1133765 01-2-12 D.C.
ROLL NO. 46475, TIN No. 900-571-545
MCLE Compliance No. II-0010471
MCLE Compliance No. III-0009378

NOTICE/COPY FURNISHED/EXPLANATION

Atty. Raneolo Leonar

Davao City

City Prosecutors Office

Davao City

Please submit the foregoing motion for the favorable

immediately upon receipt thereof without further arguments.

consideration

Copy furnish were served through registered mail due to distance and lack of
personnel.

LUWILL TIU AL-AG