REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

Third Judicial Region
Branch 90
Baler, Aurora

THE PEOPLE OF THE PHILIPPINES,

Plaintiff,
Criminal Case No. 5142
For: Violation of 5, Art.
II of RA 9165
-vs-

GEORGE BASILIO Y ESCOBAR ALIAS JOJO

And NOEMI DELA CRUZ Y MEDRANO ALIAS
MARIMAR,
Accused.
x----------------------------------x
THE PEOPLE OF THE PHILIPPINES,
Plaintiff,
Criminal Case No. 5141
For: Violation of 11,
Art. II of RA 9165
-vs-

NOEMI DELA CRUZ Y MEDRANO ALIAS

MARIMAR,
Accused.
x----------------------------------x
THE PEOPLE OF THE PHILIPPINES,
Plaintiff,
Criminal Case No. 5140
For: Violation of 11,
Art. II of RA 9165
-vs-

GEORGE BASILIO Y ESCOBAR ALIAS JOJO

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

DEMURRER TO EVIDENCE

COME NOW, the accused GEORGE BASILIO and NOEMI DELA CRUZ
assisted by the Public Attorney’s Office, through the
undersigned Public Attorney, unto this Honorable Court, most
respectfully submit the instant DEMURRER TO EVIDENCE relative
to the above-captioned cases upon the following:

GROUNDS

FAILURE OF THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED

BEYOND REASONABLE DOUBT;

and/or

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 INSUFFICIENCY OF EVIDENCE

PREFATORY

“The requirement of proof beyond a reasonable doubt has this

vital role in our criminal procedure for cogent reasons. The
accused during a criminal prosecution has at stake interest of
immense importance, both because of the possibility that he may
lose his liberty upon conviction and because of the certainty
that he would be stigmatized by the conviction. Accordingly, a
society that values the good name and freedom of every individual
should not condemn a man for commission of a crime when there is
reasonable doubt about his guilt. Due process commands that no
man shall lose his liberty unless the Government has borne the
burden of convincing the factfinder of his guilt. To this end,
the reasonable-doubt standard is indispensable, for it impresses
on the trier of fact the necessity of reaching certitude of the
facts in issue.1”

Furthermore, the Revised Rules of Court2 provides that:

“Proof beyond reasonable doubt.-In a

criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond
reasonable doubt xxx.”

TIMELINESS

THAT, the Honorable Court resolved the formal offer of

prosecution’s evidence on November 27, 2018., as such the
Prosecution finally rested their case. On the same date, the
undersigned counsel for both accused orally moved for leave
of court to file demurrer to evidence, which was not objected
to by the Prosecution. Hence, the said motion was granted by
the Honorable Court, and the undersigned counsel is given 10
days from said date or until December 07, 2018 to file the
Demurrer to Evidence. Hence, the instant pleading.

ANTECEDENT FACTS

In criminal case No. 5142, both accused was charged with

VIOLATION OF SEC 5 of ART II, of RA 9165 and the accusatory
portion of the Information avers the following:

1
People vs. Morales G.R. No. 172873, March 19, 2010
2
Section 2, Rule 133

Page 2 of 10
 “That on or about 6th of May 2014 in the
Municipality of Maria Aurora, Aurora and within
the jurisdiction of this Honorable Court, the
said accused did then and there, unlawfully,
feloniously and willfully, sell, trade and
distribute Methamphetamine Hydrochloride (shabu),
a dangerous drugs contained in a heat-sealed
plastic sachet, marked as “GB-2”, with actual
weight of 0.0180 gram to poseur-buyer PO2 Ernesto
Valdez Jr, in the amount of Php1,0000.00 without
first obtaining an authorization from government
agency concerned.”

Contrary to law.”

The criminal case No. 5141, accused Noemi Dela Cruz was
charged with VIOLATION OF SEC 11 of ART II, of RA 9165, and
the accusatory portion of the Criminal Information avers the
following:

“That on or about 6th of May, in the

Municipality of Maria Aurora, Aurora and within
the jurisdiction of this Honorable Court, the
said accused did then and there, unlawfully,
feloniously and willfully, without being
authorized by law, have in her possession seven
(7) plastic sachets of shabu, a white crystalline
substance, correspondingly marked as “NDC-2-
0.0214 gram,””NDC-03-0.0134 gram,”, “NDC-4-0.0153
gram,” “NDC-5-0.0377 gram,” “NDC-6-0.0265 gram,”
“NDC-7-0.0153 gram” and “NDC-8-0.0164 gram,” with
a total weight of 0.146 gram, which upon
examination yielded positive results for
Methamphetamine Hydrochloride (Shabu), a
dangerous drugs.

Contrary to law.”

The criminal case No. 5140, accused George Basilio was

charged with VIOLATION OF SEC 11 of ART II, of RA 9165, and
the accusatory portion of the Criminal Information avers the
following:

“That on or about 6th of May, in the

Municipality of Maria Aurora, Aurora and within
the jurisdiction of this Honorable Court, the
said accused did then and there, unlawfully,
feloniously and willfully, without being
authorized by law, have in his possession 0.0454
gram of white crystalline substance,
correspondingly marked as “GB-1” which upon
examination yielded positive result for
Methamphetamine Hydrochloride (Shabu), a
dangerous drugs.

Contrary to law.”

Page 3 of 10
 During the arraignment, both accused pleaded not guilty
to the accusations hurled against them, as such the trial
ensued. During the trial, the prosecution presented following
witnesses: (1) P/CI Jebie C. Timario, (2) PO2 Ernesto Valdez,
(3) PO3 Jacquel Jhon O. Sigua (4) PO3 Jovelyn Andres and
(5)Remegio Bitong (media) and (6) Alfredo Dumlao (Brgy.
Official). The testimonies of the forensic chemist and Brgy
Officials were subjected to stipulation, considering that
their testimonies are hearsay and they have no personal
knowledge of the fact of the alleged buy-bust operation. The
testimony of the poseur-buyer, and other members of the buy-
bust team on the other hand is self-serving and not enough to
prove the guilt of the accused beyond reasonable doubt.

ARGUMENTS/DISCUSSIONS

During the course of the trial of the case at bench, the

State unequivocally failed to discharge its duty to prove the
guilt of the accused beyond reasonable doubt. The evidence
they presented before the Honorable Court are insufficient to
prove the crime charged against the accused. The Supreme
Court already held that:

“In cases of illegal sale and illegal possession of

dangerous drugs, the dangerous drug seized from the
accused constitutes the corpus delicti of the
offense. Thus, it is of utmost importance that the
integrity and identity of the seized drugs must be
shown to have been duly preserved. "The chain of
custody rule performs this function as it ensures
that unnecessary doubts concerning the identity of
the evidence are removed."3” (Emphasis and
underscoring supplied)

In Malillin v. People G.R. No. 172953, 30 April 2008,

the Supreme Court defined chain of custody as follows:

“As a method of authenticating evidence, the chain of

custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support
a finding that the matter in question is what the
proponent claims it to be. It would include testimony
about every link in the chain, from the moment the
item was picked up to the time it is offered in
evidence, in such a way that every person who touched
3
PEOPLE OF THE PHILIPPINES vs. SALIM ISMAEL y RADANG G.R. No. 208093 February 20,
2017

Page 4 of 10
 the exhibit would describe how and from whom it was
received, where it was and what happened to it while
in the witness possession, the condition in which it
was received and the condition in which it was
delivered to the next link in the chain. These
witnesses would then describe the precautions taken
to ensure that there had been no change in the
condition of the item and no opportunity for someone
not in the chain to have possession of the same.”
(Emphasis and underscoring supplied)

The Supreme Court in PEOPLE OF THE PHILIPPINES vs. SALIM

ISMAEL y RADANG ibid, ruled that, “It is important that the
seized drugs be immediately marked, if possible, as soon as
they are seized from the accused.” In this case, the Supreme
Court acquitted the appellant for failure of the Police
Officers to mark the items seized immediately after
confiscation, without any explanation as to such failure to
mark. It was held that:

“The testimony of SPO l Rodriguez on the chain

of custody of the seized drugs leaves much to be
desired. It is evident that there was a break in the
very first link of the chain when he failed to mark
the sachet of shabu  immediately upon seizing them
from the appellant.” (Emphasis and underscoring
supplied)

In the instant case, Poseur Buyer PO2 Valdez failed to

mark the item he allegedly bought from the accused
immediately after the alleged buy-bust transaction. As stated
in his Sinumpaang Salaysay, he turned over the illegal drugs
he allegedly bought from the both accused to the
investigator, PO3 John Jacquel Sigua. He reiterated and
confirm this fact during his cross-examination. The
transcript of stenographic notes (TSN) for the hearing
conducted on October 03, 2016, recited the following:

XXX
Cross Examination
Atty. Galagala to PO2 Ernesto Valdez:

XXX
Q. Mr. Witness, who marked the alleged drug obtained
from the operation?
A. The investigator, sir.

Q. Who was the investigator in that case?

A. PO3 Sigua, sir.

Page 5 of 10
 XXX

However, the prosecution failed to present any evidence

to prove the alleged turn-over of the drug subject of the
buy-bust from the poseur-buyer, PO2 Valdez, to the
investigator, PO3 Sigua. These are already glaring breaks in
the “chain of custody”. Further, a scrutiny of PO3 Sigua and
PO2 Andres’s Pinagsamang Sinumpaang Salaysay4, which likewise
forms part of their direct testimony, would reveal that they
respectively frisked the persons of accused George Basilio
and Noemi dela Cruz. PO3 Sigua, alleged that he seized one
sachet of shabu from accused Basilio. PO2 Andres on her part
alleged that she seized seven sachets of shabu from accused
dela Cruz, and immediately gave them to PO3 Sigua. Again no
proper turn-over of seized items from accused dela Cruz was
made between PO2 Andres and PO3 Sigua. What is clear in their
Sinumpaang Salaysay is the fact that it was PO3 Sigua who
simultaneously marked the all drug items subject of the
alleged selling and those subject of illegal possession. It
is evident therefrom that PO3 Sigua did not immediately mark
the items allegedly the subject matter of the selling of
illegal drugs. The fact that no proper turn-over of the
illegal drugs subject matter of the alleged sale was made
from the Poseur-buyer (PO2 Valdez) to the Investigating
officer/seizing officer (PO3 Sigua) is already fatal to the
cause of the Prosecution in preserving the integrity of the
corpus delicti. The fact that PO3 Sigua did not immediately
mark the drug item subject of selling, and just marked it
together with the illegal drugs subject matter of the
possession, likewise, put the cause of the prosecution in
quandary, as there can be no proof that these drug items were
not interchanged. Evidently therefore, the prosecution failed
to preserve the identity and integrity of the drug items
subject matter of the herein cases.

Further, PO3 Valdez failed to clarify and explain in his

Sinumpaang Salaysay and even during the presentation of his
testimony in court what happened to the drug he allegedly
bought from both the accused immediately after seizure. He
emphasized in his Sinumpaang Salaysay that the accused
Basilio received the marked money and then gave it to accused
dela Cruz, who in turn kept the money in her back-pocket. But
poseur buyer PO2 Valdez forgets to explain and clarify where
did he put the drug he allegedly bought from the both the
accused. He did not mention where he kept the same while he,

4
Exhibit “B” for the prosecution

Page 6 of 10
together with the rest of the buy-bust team, was having
difficulty arresting both the accused. Case law cannot be
clearer when it ruled that “every person who touched the
exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness
possession.” (Malillin v. People G.R. No. 172953, 30 April
2008)

In addition, none among the other witnesses presented by

the prosecution were able to prove the guilt of the accused.
Firstly, the Forensic Chemist has no personal knowledge as to
actual source of the drugs subjected to his examination. As
such, his testimony regarding the ownership and/or source of
the illegal drugs are purely hearsay to prove the cases
against the accused. Further, it must likewise be stressed
that the requests for examination of drug items which
ordinarily includes the drugs to be examined, were not
personally received by the Forensic Chemist. Said requests
were received by one PO3 Susada. Again no evidence of turn-
over was presented in court on how the drug items came into
the possession of the Forensic Chemist from one PO3 Susada
for his examination. As such, an apparent break in the chain
again exists that taints the integrity and identity of the
drug items. Other witnesses such as the Police Photographer,
the Brgy. Officials, the Media and the DOJ representative
were subjected to stipulation as they have no personal
knowledge in the alleged exchange/sale of illegal drugs.

It is likewise worthy to note that the criminal

information for Criminal Case No. 5142 for violation of Sec
5, Art II, RA 9165, failed to alleged that both the accused
acted in conspiracy. This failure is again, fatal to the
cause of the prosecution. The Supreme Court already ruled
that “No information for a crime will be sufficient if it
does not accurately and clearly allege the elements of the
crime charged.”5 In addition, the marking of the alleged seven
(7) sachets of shabu indicated in the information for
Criminal Case No. 5141, accusing Noemi dela Cruz for
illegally possessing said seven (7) sachets of shabu, is
clearly different from the markings as identified by the
witnesses during the trial. Evidently, therefore, there is
failure of the prosecution to prove the allegations in the
said criminal information. As such, it is now a demandable
right on the part of both the accused to be acquitted from
these criminal charges.

5
JOVITO CANCERAN vs. PEOPLE OF THE PHILIPPINES G.R. No. 206442 July 1, 2015

Page 7 of 10
 The Supreme Court ruled, “From the totality of evidence
presented before the Court, it cannot, with propriety and due
respect for the law, be held that there is sufficiency of
competent evidence on which to base an affirmative finding of
guilt in relation to the requisite degree of moral
certainty. The Court finds the testimonies and documents for
the prosecution rather weak. While there may be inherent
weaknesses for the defense, at most, the proofs in this case
only cast suspicion on petitioner. The principle has been
dinned into the ears of the bench and the bar that in this
jurisdiction, accusation is not synonymous with guilt. While
the Court is not inclined to hold that the evidence is
conclusive that he is not guilty, neither is it convinced
that he is so, based on the circumstances of this case. The
Court is, thus, under a long standing legal injunction to
resolve the doubt in favor of herein petitioner.  So long as
the acts of the petitioner and the circumstances can be
explained upon any other reasonable hypothesis inconsistent
with his guilt, he must be acquitted.”6

From the above statements culled from the testimony of

the witness for the State, a reasonable mind can at once
resolve with certainty that the charge in the Information
cannot be the basis of conviction of both the accused.

CONCLUSION

In this case, after cautiously examining the

uncorroborated testimonies of witnesses, and testing the same
in the light of above-cited laws and jurisprudence, we find
that the prosecution failed to establish the guilt of the
accused with moral certainty. The totality of evidence
presented utterly fails to overcome the presumption of
innocence enjoyed by the accused.

When the prosecution failed to prove the guilt of the

accused beyond reasonable doubt, it is not only a demandable
right of the accused to release him free but also the duty of
the court to set him free. Hence, this case ought to be
dismissed, the same to operate as an ACQUITTAL of the accused
from the instant charges.

6
Dizon vs. People G.R. No. 144026, June 15, 2006

Page 8 of 10
 PRAYER

WHEREFORE, all the foregoing premises considered, both

the accused, by counsel most respectfully pray unto this
Honorable Court that the instant DEMURRER TO EVIDENCE be
GIVEN DUE COURSE that will operate as an ACQUITTAL of the
accused in pursuit of the highest interest of Truth, justice,
and Equity.

Other reliefs just and equitable under the premises are

likewise prayed for.

RESPECTFULLY SUBMITTED.
Done on this 06th day of November 2018 at Baler, Aurora.

Assisted by:

PUBLIC ATTORNEY’S OFFICE

Counsel for the Accused
Department of Justice
PAO Baler District Office
2nd Floor Municipal Legislative,
Municipal Hall of Baler,
Municipality of Baler
Province of Aurora

By:

ATTY. CORA LEAH R. BACCAY

Public Attorney II
Roll No. 60844, March 26, 2012
IBP Life Member No. 016586
MCLE Compliance No. V-0022436
Valid until April 14, 2019

And

ATTY. RAUL D. GALAGALA

OIC-District Public Attorney
Public Attorney III
Roll No. 60441
IBP O.R. NO. 1008690, dated 12/28/2017
MCLE Compliance No. V-0018555, 4/14/2016
Valid until April 14, 2019

Page 9 of 10
Copy furnished through registered mail:

EXPLANATION

Pursuant to Section 6, Rule 13 of the Revised Rules of Court,

a copy of the instant pleading was served through registered
mail due to distance, lack of manpower to effect personal
service and the inclement weather. Hence, this pleading is
sent through registered mail to:

Regional Trial Court, Branch 90

Baler Aurora
Brgy. Suklayin, Baler Aurora

HON. PHANIE ROSE ARAGON-SAEZ

Office of the Provincial Prosecutor
Justice Hall, Brgy. Suclayin, Baler, Aurora

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