Republic of the Philippines

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
BRANCH 7
Baguio City

PEOPLE OF THE PHILIPPINES,

Plaintiff, CRIM. CASE No. 33516-R

VS.

JOSE FRADES,
Accused.
x------------------------------------------x

DEMURRER TO EVIDENCE

WITH ALL DUE RESPECT TO THE HONORABLE COURT

The accused through undersigned counsel most respectfully

submits the instant Demurrer to Evidence pursuant to the Order of
the Honorable Court February 13, 2019 granting the Motion for Leave
of Court to File Demurrer to Evidence earlier filed by accused
through undersigned counsel and which directed accused to through
undersigned counsel to file the intended Demurrer within five (5)
days from February 13, 2019 or until February 18, 2019 to file the
announced demurrer.

The foregoing demurrer is being filed within the period

granted by the Honorable Court.

FACTS OF THE CASE:

The charge against the accused is stated in the information

following information written below, to wit:

INFORMATION

The undersigned accuses JOSE PRADES y

BALLESTEROS for VIOLATION OF P.D. 1866 as
amended by R.A. 8294 committed as follows:

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 That on or about the 7th day of September 2012, in
the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above named
accused, did then and there willfully, unlawfully and
feloniously carry his cal. 45 pistol Armscor with one
magazine loaded with eight (8) rounds of ammunition,
without being armed with a permit to carry his firearm, in
violation of the aforecited provision of law.

CONTRARY TO LAW.

Baguio City, Philippines. September 10, 2012.

(SGD) ARLENE VALERIE G. CACHO

The offense for which accused is being charged is found on the

last paragraph of R.A. No. 8964 which states:

"Sec. 1. Unlawful manufacture, sale, acquisition,

disposition or possession of firearms or ammunition or
instruments used or intended to be used in the manufacture of
firearms or ammunition. — xxx--------------------------------------
---------------xxx

xxx-------------------------------------------------------------------xxx

xxx-----------------------------------------------------------------xxx

xxx------------------------------------------------------------------xxx
xxx-------------------------------------------------------------------xxx

"The penalty of arresto mayor shall be imposed upon any

person who shall carry any licensed firearm outside his
residence without legal authority therefor."

On February 28, 2013 the accused was arraigned and gave a

plea of “NOT GUILTY”. The pre-trial proceeded on July 12, 2013 and
thereafter trial proceeded. The State was able to present During
arraignment, the accused pleaded not guilty and thereafter the pre-
trial proceeded. The state was able to present SPO2 Joseph Hilado &
SPO4 Bonifacio Alangsab. The state was also able to mark and
introduce the following documentary exhibits:

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 Exhibit “A” – Joint Affidavit of Arrest;
Exhibit “B” – Medico Legal Certificate of Accused;
Exhibit “C” – Booking Sheet of Accused
Exhibit “D”- Turn over receipt of evidence;
Exhibit “E” – Firearms license card of the accused;
Exhibit “F” - Request for verification of Registered Owner of
Firearms; and,
Exhibit “G” – Certification from FEO

After the Honorable Court issued its resolution on the Formal

Offer of Exhibits and the Comment and Objections to the Formal
Offer of Exhibits, the accused through undersigned counsel file his
Motion for Leave of Court to File Demurrer to Evidence which the
Honorable Court granted in its Order dated February 13, 2019.

FACTUAL AND LEGAL BASIS OF THE

DEMURRER

1. 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.

DISCUSSION OF THE FACTUAL AND

LEGAL BASIS OF THE DEMURRER TO
EVIDENCE

Demurrer to the evidence is "an objection by one of the parties

in an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to make
out a case or sustain the issue. The party demurring challenges the
sufficiency of the whole evidence to sustain a verdict. 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.”1

With all due respect, the state failed to prove the participation
of the accused in the crime charged as well as the qualifying
circumstances alleged in the information.

1
Gutib v. Court of Appeals, 371 Phil. 293, 300, 305 (1999

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 The accused is charged of violation of P.D. 1866 as amended by
R.A. No. 8294 for carrying a firearm duly licensed in his name
outside of his residence without the necessary permit to carry firearm
outside of residence under the last paragraph thereof.

The offense punished under the above stated provision of law

consist in the act of possessing or carrying a licensed firearm outside
of the residence of the licensee without the permit therefor. The
authority to carry a licensed firearm outside of residence is more
popularly known as the Permit to Carry Firearms Outside of
Residence (PTCFOR) and this is issued by the chief of the Philippine
National Police. To be liable under this specific provision of the law,
the offender must be carrying a licensed firearm outside of his
residence without the legal authority from the proper government
office to carry such license outside of his residence.

Based on how the specific provision of the law was worded, the
elements of the offense maybe stated thus: a) The offender is duly
licensed to own or possess a firearm; b) The licensed owner or
possessor of the firearm carried such firearm outside of his residence;
and, c) He did not have the requisite PTCFOR.

With all due respect, a scrutiny of the testimonial and

documentary evidence submitted by the state clearly indicates that
the elements of the crime were not sufficiently proven.

First, other than the testimonies of the arresting officers, there is

no evidence to prove the existence of the questioned firearm. It
cannot therefore be established whether accused was indeed carrying
a firearm outside his residence at the time of his arrest. In other
words, the corpus delicti was not proven. Second, there was likewise
no proof that the accused indeed did not have the requisite permit to
carry his licensed firearm outside of his residence. Such proof would
consist of a certification from the proper government agency that
indeed the accused was not the holder of a PTCFOR.

Hence, without proof of the existence of the firearm allegedly

possessed by the accused when he was arrested, and proof that he
does not have any authority to carry a licensed firearm outside of his
residence, the testimonial and documentary evidence so far adduced
are insufficient to prove the guilt of the accused beyond reasonable
doubt for violation of PD No. 1866 as amended by R.A. No. 8294
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specifically that which penalizes the carrying of a licensed firearm
outside of the licensee’s residence without the requisite permit issued
by the proper government office. The guilt of the accused cannot be
established beyond reasonable doubt.

Given all these, accused through counsel most respectfully

prays of the Honorable Court to grant the foregoing Demurrer to
evidence and to dismiss the case against accused for lack
insufficiency of evidence.

RESPECTFULLY SUBMITTED.

Baguio City, Philippines. February 18, 2019.

[Counsel for Petitioners]

Rm. A-30 Antipolo Bldg. Annex
#83 Session Road, Baguio City
IBP O.R. No. 02771; 12/27/18; Baguio City
PTR No. 3956101; 1/3/19; Baguio City
Roll of Attorneys No. 45723; 5/23/01
MCLE Compliance No. V-0022480
CP No. 0916-7777-989; e_kindipan@yahoo.com

COPY FURNISHED

PROS. CONRADO V. CATRAL, JR.

Office of the City Prosecutor
Baguio City

By registered mail with return card, personal service being

impracticable due to time constraints and lack of office personnel to
effect personal service.

This demurrer was also filed by registered mail with return card
personal filing being impracticable due to time constraints and lack
of office personnel to effect personal filing.

ATTY. EDMOND M. KINDIPAN

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