Republic of the Philippines

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
BRANCH 63
La Trinidad, Benguet

PEOPLE OF THE PHILIPPINES,

Plaintiffs, CRIM. CASE No. 15-CR-10847
VS.

ENA A. MAGNA,
Accused.
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MOTION FOR LEAVE OF COURT TO

FILE DEMURRER TO EVIDENCE
WITH ALL DUE RESPECT TO THE HONORABLE COURT

The accused through undersigned counsel most respectfully moves for

leave of Court to file demurrer to evidence on the ground that the testimonial
and documentary evidence presented by the state, are insufficient to overturn
the constitutional presumption of innocence of accused, and to prove his
guilt beyond reasonable doubt.

ARGUMENTS IN SUPPORT OF THE FOREGOING MOTION

The accused in this case is being tried for qualified theft under the
following Information, to wait:

The undersigned prosecutor accuses ENA A. MAGNA of the

crime of QUALIFIED THEFT, defined and penalized under Article
310 of the Revised Penal Code, in relation to Article 308 of the same
Code, committed as follows:

That on January 30, 2018, At Twin Peaks, Municipality

of Tuba, Province of Benguet, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
employed as Cashier for J and F General Merchandize,
Hardware (ilalagay pa ba ito? Di ko kasi Makita sa complaint)
 owned by Garry G. Go, with grave abuse of confidence since a
high degree of trust and confidence was reposed upon him by
the owners, after having received the cash payments for and in
behalf of the said establishments and owners, and made
deliveries to customers, did then deliberately fail to record the
proper sales invoices and delivery receipts in the business
logbook, as required under their arrangement, and did then
there willfully, unlawfully, and feloniously did take, steal and
carry away the sums of money reflected in the sales invoices
and delivery receipts in the total amount of FOUR
HUNDRED FIFTY THOUSAND PESOS (P450, 000.00),
Philippine currency, to the damage and prejudice of the owners
thereof in the sum aforesaid.

CONTRARY TO LAW

La Trinidad Benguet, Philippines, 10 November 2018.

PATRICIA DOMINGO
Assistant Provincial Prosecutor

APPROVED:

RICHARD A. FLORES
City Prosecutor

To be liable for qualified theft, all the elements of the crime must be
sufficiently established beyond reasonable ground.

The elements of qualified theft, punishable under Article 310 in

relation to Articles 308 and 309 of the Revised Penal Code (RPC), are (a)
the taking of personal property; (b) the said property belongs to another; (c)
the said taking be done with intent to gain; (d) it be done without the
owner’s consent; (e) it be accomplished without the use of violence or
intimidation against persons, nor of force upon things; and (f) it be done
under any of the circumstances enumerated in Article 310 of the RPC, i.e.
,with grave abuse of confidence. These elements were not proven in this
case.
 The accusation of the state proceeds from the theory that because the
accused deliberately failed to record the proper sales invoices and delivery
receipts in the business logbook, the accused allegedly took and kept for
himself the payments he received from the customers without the consent of
the private complaint.

Having alleged “that the accused, with grave abuse of confidence,

after having received the cash payments for and in behalf of the
establishments of the private complainants, and made deliveries to
customers, did then there willfully, unlawfully, and feloniously did take,
steal and carry away the sums of money reflected in the sales invoices and
delivery receipts”, it behooves the prosecution to introduce evidence
sufficient to prove all the elements of the crime of theft.
_________________________

With all due respect to the Honorable Court, accused through

undersigned counsel most respectfully and humbly submits that the evidence
submitted by the state failed to prove all the elements of qualified theft in
this case. Specifically, the state’s evidence failed to prove that accused took
the money belonging to private complainant, and that the taking was with
intent to gain.

The state submitted Sales Invoices, Delivery Receipts, Cash Invoices,

Logbook of the hardware and general merchandise and the Affidavit of
Anna Chua as its documentary exhibits. Private complainant, her husband
and Anna Chua were the only witnesses presented by the state.

ACTUAL TAKING OF PERSONAL

PROPERTY BELONGING TO PRIVATE
COMPLAINANT AND INTENT TO GAIN
WERE NOT PROVEN

The Sales Invoices, Delivery Receipts and Cash Invoices submitted by

the prosecution do not prove the elements of the crime of theft. The case of
Royal Cargo Corporation vs. DFS Sports, G.R. No. 158621, December 10,
2008 is instructive on the nature of Sales Invoices thus:

“An invoice or bill is a commercial document issued by a

seller to the buyer indicating the products, quantities and agreed prices
for product or services the seller has provided the buyer. An invoice
indicates the buyer must pay the seller according to the payment
items. From the point of view of a seller, an invoice is a sales invoice.
 From the point of view of a buyer, an invoice is a purchase invoice.
The document indicates the buyer and seller, but the term “invoice” is
usually used to clarify its meaning, such as “We sent them an invoice”
(they owe us money) or “We received an invoice from them” (we owe
them money).

In Commissioner of Internal Revenue v. Manila Mining

Corporation, [citations omitted]” sales or commercial invoice” is
defined as a written account of goods sold or services rendered
indicating the prices charged therefore or a list by whatever name it is
known which is used in the ordinary course of business evidencing
sale and transfer or agreement to sell or transfer goods and services.
On the other hand, the same case defines “receipt” as a written
acknowledgement of the fact of payment in money or other settlement
between seller and buyer of goods, debtor or creditor, or person
rendering services, and client or customer.

Black’s Law Dictionary defines an invoice as an itemized

list of goods or services furnished by a seller to a buyer, usually
specifying the price and terms of a sale; a bill of costs.

From the foregoing definitions, an invoice, in and by

itself, and as opposed to a receipt, may not be considered evidence of
payment. In addition, it does not mean that possession by a debtor of
an invoice raises the presumption that it has already paid its
obligation. An invoice is simply a list sent to a purchaser, factor,
consignee, etc., containing the items, together with the prices and
charges, of merchandise sent or to be sent to him; a mere detailed
statement of the nature, quantity and cost or price of the things
invoiced”.

A delivery receipt on the other hand, is defined as “A document that is

typically signed by the receiver of a shipment to indicate that they have in
fact received the items being shipped and have taken possession of it.”

From the foregoing disquisition, the invoice and delivery receipts do

not prove that the items listed in the sales invoice and/or delivery receipts
were indeed paid and that the accused received the payment. From a legal
stand point, a sales invoice and delivery receipt cannot take the place of an
official receipt. Without proof, that payments of the items listed on the sales
invoice and delivery receipts were indeed received by the accused or were in
fact paid for that matter, there is no money (personal property belonging to
private complainant) taken by the accused without the consent of the owner
thereof, to speak of. Thus, the actual taking and the intent to gain were not
established.

The logbook [Exhibit “B” and series] did not help the cause of the
prosecution. For once, and as admitted by the private complainant, the
entries in the logbook do not indicate the exact daily amount of collections
of the establishments of private complainant. This being the case, it is
impossible to actually determine if the collection for the day or a part thereof
were indeed stolen by the accused.

So that, assuming for the sake of argument, that the sale invoices and
the delivery receipts do prove the fact that accused received the payment for
the items listed in these various sales invoices and delivery receipts were not
listed by accused in the logbook does not prove the elements of the crime of
theft. It does not prove that there was actual taking of the money and that the
taking was with intent to gain. This conclusion do not change, even
assuming without admitting that the accused’s failure to list down the items
in the various sales invoices and delivery receipts was not a casual error on
the part of the accused.

There is much to be desired from the documentary evidence of the

state in this case, especially if we take into consideration the constitutional
presumption of innocence accorded to an accused. While the state presented
private complainant, her husband and her sister-in-law, their testimony still
failed to prove the actual taking of the money and the intent to gain which
are indispensable elements of the crime of theft. As admitted by them,
neither of them were present when the alleged transaction happened. Neither
of them can say how much money was actually collected and remitted by the
accused on the date of the questioned transactions. In fact, as admitted by
them, the respective total amount of what was supposed to be the collection
of those days wherein the accused failed to list down the items contained in
the sales invoices/ delivery receipts, were only placed when they were
conducting the audit. Since they cannot say how much money was collected
on the questioned dates, they cannot certainly say how much, if anything,
was actually missing and stolen by the accused. At best, their testimony
were hearsay, opinions and conclusions based on the assumption that the
accused was simply too poor to afford certain luxuries in life.

All told, at this juncture of the proceedings of this case the evidence
adduced by the state is insufficient to sustain a verdict establishing the guilt
of the accused beyond reasonable doubt. In the case of Gutib v. Court of
Appeals, 371 Phil. 293, 300, 305 (1999), the Supreme Court stated that:
“Sufficient evidence for purposes of frustrating a demurrer thereto is such
evidence in character, weight or amount as will legally justify the judicial or
official action demanded according to their circumstances. To be considered
sufficient therefore, the evidence must prove: (a) the commission of the
crime, and (b) the precise degree of participation therein by the accused.”

With all due respect, the evidence of the state failed to meet this test
of sufficiency.

WHEREFORE, premises considered, the accused through

undersigned counsel most respectfully moves of the Honorable Court to
grant the foregoing motion and allow the accused to file his demurrer to the
evidence of the state.

Baguio City for La Trinidad, Benguet. November 23, 2018.

ATTY. JOSEPH LAWAGAN

Notary Public
Until December 31, 2019
SM Fairview, Baguio City
PTR No. 2198282, 04-30-18
IBP O.R. No. 100640783, 4-14-18
Roll No. 66288, 04-29-18
Commission Serial No.: 74-NC-12(R)
MCLE Compliance No. II-0002267, 01-15-19
 COPY FURNISHED/NOTICE OF HEARING
&
EXPLANATION AS TO MODE OF SERVICE AND FILING

OFFICE OF THE PROVINCIAL PROSECUTOR

La Trinidad, Benguet

Greetings:

Please take notice that the undersigned counsel will submit the
foregoing motion on December 6, 2018 at 8:30 o’clock in the morning for
the consideration of the Honorable Court.

The foregoing motion was served and filed by registered mail due to
lack of office personnel to effect personal filing and service.

ATTY. JOSEPH LAWAGAN