Republic of the Philippines

REGIONAL TRIAL COURT

9th Judicial Region
Branch 29
San Miguel, Zamboanga del Sur
-oOo-

PEOPLE OF THE PHILIPPINES, Crim. Case No. 18-007

Plaintiff,

-versus- -for-

IAN LOQUILLANO, ROBBERY

Accused.
x-------------------------------------------/

DEMURRER TO EVIDENCE
(With Leave of Court)

ACCUSED, through the undersigned counsel, most respectfully submits its

Demurrer to Evidence and avers, that:

BASIS FOR THE DEMURRER

The prosecution is burdened to prove corpus delicti beyond reasonable doubt

either by direct evidence or by circumstantial or presumptive evidence (People v.
Delim, G.R. No. 142773, January 28, 2003, 396 SCRA 386, 400,
citing People v. Fulinara, G.R. No. 88326, August 3, 1995, 247 SCRA
28). Corpus delicti consists of two things: first, the criminal act and second,
defendant's agency in the commission of the act [Gay v. State, 60 Southwestern
Reporter, 771 (1901)].

It is incumbent upon the prosecution to adduce evidence sufficient to prove

beyond reasonable doubt (a) the commission of the crime, and (b) the precise degree
of participation therein by the accused (Gutib vs. Court of Appeals, 312 SCRA 365).
The charges against an accused must be dismissed if there is no competent or sufficient
evidence adduced that would sustain the charges against him, should the same be
raised in a demurrer to the evidence.

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).

TIMELINESS OF THE DEMURRER

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.

THE PROSECUTION FAILED TO PROVE

BEYOND A REASONABLE DOUBT
THE IDENTITY OF THE ACCUSED

A review of the oral testimony of the complainant and eyewitness Paterno

Romo will show that the prosecution was not able to prove beyond a reasonable doubt
the identity of the accused when the alleged robbery was committed. May we invite the
court’s attention on the following portions of his testimony, viz:

TSN-January 10, 2019 (pages 4)

Witness: Paterno Romo

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:

TSN-January 10, 2019 (pages 13, 14)

Witness: Paterno Romo

ATTY. ESCALANTE: (ON CROSS EXAMINATION)

Q- Is it not that when you reported the incident you told the police investigator that
the assailant, the robber, the person who robbed you was actually wearing a bonnet?
A- Yes, sir, he wore it like that.
Q- Is it not that you were told by the police investigator that the assailant was wearing
a bonnet, how were you able to identify him? Is that correct?
A- He just really wore it like that sir and we could see his face.
Q- But do you remember you were asked that question with the police Mr. Witness?
A- Yes, sir.
Q- Is it not that when you first reported this to the police or revealed to the police
investigator that you did not actually see the face of this assailant because as a matter of
fact he was actually wearing a bonnet at that time?
A- I already knew him sir.
Q- Is it not that the police suggested to you that in order for the case to be strong or
the evidence is strong?
Pros. Villa: Objection your honor, speculative. The witness did not testify on that.
Atty. Escalante: I am on cross Your Honor and I was already able to lay the basis.
Court: For a while what was the question Atty. Escalante?
Atty. Escalante: In order for the case to be strong you should say that he was wearing
a bonnet but his face was opened.
Court: Were you told by the police officers that the assailant in this case was wearing a
bonnet but his face is exposed?
A- Because he asked me your Honor
Q- You were told by the police officer of that?
A- That’s what I told to the police Your Honor.
Q- Who said? The police or you?
A- Me your Honor because I was asked what he was wearing.
Atty. Escalante: Is it not because of what you said the police told you now the case agaisnt
this Ian Loquillano is already strong?
A- Yes sir.
Q- The case now against Ian Loquillano is strong because you can now testify that you
were able to see clearly his face despite he’s wearing a bonnet because his face was still
fully exposed to you, am I correct?
A- Yes sir.
 The foregoing portion of the testimony will actually suggest that the police may
have coached the complainant into alleging in his affidavit of complaint that he must
categorically allege that the assailant’s face was clearly visible despite the fact that the
latter was wearing a bonnet. It is highly likely that indeed the assailant was wearing a
bonnet and that fact was reported by the complainant to the police. But it is likewise
highly likely that the assailant face was covered with his only his eyes exposed
necessitating the suggestion that he cannot be identified fully. Thus it should be
alleged that despite the assailant wearing a bonnet, it should be alleged that he wore it
in such a way that his face is exposed.

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:

TSN-January 15, 2019 (pages 4-5 )

Witness: Benjie Bayawa

PROS. VILLA: (ON DIRECT EXAMINATION)

Q- And what happened next while you were focused on the cutting of trees, Mr.
Witness?
A- At that time the owner of the chainsaw top on me and informed me that
somebody was wearing a bonnet and pointing his gun to us, Sir.
Q- How many persons were pointing gun towards you and your companion Paterno
Romo, Mr. Witness?
A- Only one sir.
Q- You made mentioned a while ago that this person was wearing a bonnet, is that
correct?
A- Yes, sir.
Q- Can you described this bonnet he was wearing, Mr. Witness, you were able to
see his face or his face was covered by the bonnet, Mr. Witness?
Atty. Escalante- Objection, Your Honor, misleading....
Pros. Villa- Your Honor, it is not misleading. There are two options your honor...
Court- Objection sustained, refor, the question, Prosecutor Villa?
Q- Can you described the bonnet that this person was wearing during that time,
Mr. Witness?
A- I did not see his face. Sir.
Court- For a while. Can you see the face of that person?
A- I did not see his face sir, because I was facing back.

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:

TSN-January 15, 2019 (pages 13-14 )

Witness: Benjie Bayawa

PROS. VILLA: (ON REDIRECT EXAMINATION)

Q- So you are changing your testimony in this affidavit you executed before PSI
Orlyn Leyte, Mr. Witness?
A- Yes, Sir.
Q- And yet you are testifying before this Honorable Court as eyewitness of the
incident that happened on May 22, 2017, is that correct? Were you paid by the accused
in this case?
A- No sir.
Q- Are you afraid of the accused in this case?
A- No, Sir, I did not really know that person, Sir, only the owner of the chainsaw
knows that person, Sir.
Q- And why is it that you mentioned in your affidavit, a certain Ian Loquillano, Mr.
Witness?
A- There was an investigation made, Sir and also in the preparation of the affidavit
was simultaneously done, Sir.
Q- And yet you know that police officers inserted the name Ian Loquillano and you
know about it and you signed it also, Mr. Witness, knowing that you did not know him?
A- Yes because accordingly I was witness, Sir.
Q- Witness of what, Mr. Witness?
A- Because i was operator of the chainsaw and so I was mad a witness, sir.
Q- Were you there or not, Mr. Witness?
A- I was there when the incident happened, Sir but my back was towards the
person.
Xxxxxxxxxx
Q- So you are forging yourself, Mr. Witness in signing this affidavit?
A- It was the Police Officer who prepared that affidavit, Sir. And they just told me
to sign it.
Q- You are a high school graduate, Mr. Witness, is that correct?
A- Yes Sir.
Q- And you read this affidavit?
A- No, Sir, I was just called to affix my signature.
Q- And yet you affixed your signature without knowing the contains of this
affidavit?
A- Yes, Sir.

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.

In the case of PEOPLE OF THE PHILIPPINES versus LEE RODRIGO,

JOHN DOE @ BUNSO, and PETER DOE @LYN-LYN G.R. No. 176159,
September 11, 2008, the Supreme Court gave guidance on the identification of the
accused, viz:

“The greatest care should be taken in considering the identification

of the accused especially, when this identification is made by a sole
witness and the judgment in the case totally depends on the
reliability of the identification. This level of care and circumspection
applies with greater vigor when, as in the present case, the issue goes
beyond pure credibility into constitutional dimensions arising from
the due process rights of the accused.”

Accordingly, it is the burden of the prosecution to prove corpus delicti beyond

reasonable doubt either by direct evidence or by circumstantial or presumptive
evidence (People v. Delim, G.R. No. 142773, January 28, 2003, 396 SCRA
386, 400, citing People v. Fulinara, G.R. No. 88326, August 3, 1995, 247
SCRA 28).

The prosecution must adduce evidence sufficient to prove beyond reasonable

doubt (a) the commission of the crime, and (b) the precise degree of
participation therein by the accused (Gutib vs. Court of Appeals, 312 SCRA
365). The charges against an accused must be dismissed if there is no competent or
sufficient evidence adduced that would sustain the charges against him, should the
same be raised in a demurrer to the evidence.

To reiterate, it is well-settled 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).

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

WHEREFORE, it is most respectfully prayed of the Honorable Court

that an Order issue acquitting the accused based on the grounds above-
cited.

Other reliefs just and equitable are likewise prayed for.

Respectfully submitted this 1st day of March 2019 at Pagadian City,

Philippines.

ATTY. FELIX M. ESCALANTE, JR.

Counsel for Accused-Movant
Provincial Capitol Complex
Pagadian City
Attorney’s Roll No. 57655
IBP No. 1039460, 01/03/17
Issued at Pagadian City
PTR No. 0166655, 01/03/17
Issued at Pagadian City
MCLE Compliance No. IV-0014312
Issued on March 21, 2013
MCLE Compliance V: 0005045
Issued on December 18, 2014 and
Valid until April 14, 2019
Email ad: pgochief@yahoo.com
0917-623-0775

Copy furnished:
Prosecutor Ralph Villa
Office of the Provincial Prosecutor
Justice Hall, Pagadian City

NOTICE

The Clerk of Court

Regional Trial Court
Branch 29
Justice Hall, Pagadian City

Attention: Prosecutor Ralph Villa

Office of the Provincial Prosecutor
Justice Hall, Pagadian City
Greetings!

Please submit the foregoing Demurrer to Evidence (With Leave of

Court) for the kind consideration of the Honorable Court and schedule the
same for hearing on __________________. Thank you.

ATTY. FELIX M. ESCALANTE, JR.