Appellants-brief-rejhi.docx

Republic of the Philippines COURT OF APPEALS – MINDANAO STATION Cagayan de Oro City ----oOo----

PEOPLE OF THE PHILIPPINES,

CA-G.R. CR. No. 12345-MIN

Plaintiff-Appellee/s,

– versus –

RTC BRANCH 36, Zamboanga City CRIM. CASE NO. 9999 RE: ILLEGAL POSSESSION OF FIREARM AND AMMUNITON PENALIZED UNDER P.D. 1866, AS AMENDED BY R.A. 8294

ANDRES BONIFACIO y DE CASTRO Accused – Appellant/s. x------------------------------x

Submitted by: Nino Rejhi J.Natividad LLB 3B LEGAL FORMS

1

CONTENTS

PAGE

COVER PAGE

1

SUBJECT INDEX

2

ASSIGNMET OF ERRORS

2-3

STATEMENT OF THE CASE

3-6

STATEMENT OF FACTS

6-8

ISSUES

9

ARGUMENTS

9-22

APPELLANT’S BRIEF COMES NOW, Accused-Appellant ANDRES BONIFACIO y DE CASTRO through the undersigned counsel and unto this Honorable Court, most respectfully submits his Appellant’s Brief:

ASSIGNMENT OF ERRORS I THE COURT A QUO ERRED IN NOT HOLDING THAT THE ARREST OF ACCUSED-APPELLANT WAS UNLAWFUL.

II THE TRIAL COURT ERRED IN RESTRAINING PRESENTATION OF THE RECEIPT EVIDENCING PAYMENT OF BAIL BOND POSTED FOR THE ACCUSED-APPELLANT EVEN WHEN ITS ALLOWANCE WOULD BETTER SERVE THE ENDS OF JUSTICE III THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED FIREARM AND AMMUNITIONS DESPITE BEING THE RESULT OF AN UNLAWFUL ARREST 2

IV THE COURT A QUO ERRED IN GIVING CREDENCE AND PROBATIVE VALUE TO THE CONFLICTING, CONTRADICTORY AND UNRELIABLE TESTIMONY OF THE PROSECUTION’S WITNESSES

STATEMENT OF THE CASE On October 7, 2004, Criminal Case No. 9999 for Illegal Possession of Firearm and Ammunition penalized under Presidential Decree No. 1866 as amended by Republic Act No. 8294 was filed against ANDRES BONIFACIO y DE CASTRO (Accused-Appellant) before the Regional Trial Court Branch 36 of Zamboanga City.

The Information1 alleges: “That on or about September 21, 2004, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable reason or purpose and with intent to possess firearm, did then and there willfully, unlawfully and feloniously, have in his possession and under his custody and control, one (1) .357 Revolver (paltik) marked COLT Cal. .38 with serial number 00455 and loaded with four (4) live ammunition of .38 caliber, without first having obtained from the proper authorities concerned, the necessary license and/or permit therefor, in flagrant violation of the aforementioned law. CONTRARY TO LAW.”

The accused-appellant was arraigned on October 29, 2004. Assisted by his counsel, Atty. Jessica Soco, accused pleaded “not guilty” to the offense charged.

1

Reproduced from the Judgment in Criminal Case No. 9999, dated April 10, 2014 (Annex “1”, hereof) 3

In the course of the trial, the prosecution presented the following witnesses, namely:

1. PO2 Alibasa I. CALABASA, the arresting officer; 2. PCInsp. Roman C. Furigay, FESAGS Chief; 3. PO3 Basher Lutian, Investigator-on-Case;

During the trial, the prosecution presented the following pre-marked exhibits, namely:

Exhibit A

- Complaint Assignment Sheet;

Exhibit B

- Affidavit of SPO2 Alibasa I. CALABASA;

Exhibit D

- Case Report dated September 22, 2004;

Exhibit E

- Forwarding Report dated September 22, 2004;

Exhibit F

- One (1) 357 revolver marked as .38 COLT with Serial No. 00455;

Exhibit G

- Five (5) Live ammunition of 357 COLT cal;

EXHIBIT H

- One (1) live ammunition of .38 caliber

Accused-Appellant testified as the only witness of the defense on March 6, 2014.

On April 10, 2014, the trial court rendered a “DECISION”2 promulgated on even date, the dispositive portion of which reads:

“WHEREFORE, in view of the foregoing, Judgment is hereby rendered in the above entitled case finding the accused herein ANDRES 2

Decision - Annex 1 4

BONIFACIO y DE CASTRO, guilty beyond reasonable doubt for violation of Section 1, Paragraph 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and considering the circumstances surrounding the herein case, with no aggravating and mitigating circumstances to be appreciated by this Court and applying the indeterminate sentence law, this Court hereby sentences the said accused to suffer the penalty of imprisonment of FOUR (4) months and ONE (1) Day of ARRESTO MAYOR Maximum, as minimum to FOUR (4) Years and TWO (2) Months of Prison Correccional Medium, as maximum and to pay a fine of P15,000.00 as well as the costs of this suit.

Considering the accused appears to have been preventively detained pending the resolution of this case at the Zamboanga City Reformatory Center since October 7, 2004 until May 31, 2005, his detention covering this period shall be considered and shall be credited in his favor.

xxx SO ORDERED” (Judgment dated 10th April 2014, p. 6)

A certified true copy of the Judgment dated 10th April 2014 consisting of 6 pages is appended as Annex 13.

On June 25, 2014, Accused-Appellant, through counsel, Atty. Jessica Soco

filed a NOTICE OF APPEAL4 to the Court of Appeals,

Cagayan de Oro City on both questions of fact and of law. However, on 3 4

supra Notice of Appeal - Annex 2 5

September 14, 2015, Atty. Jessica Soco filed a Motion to Withdraw as Counsel. The Best Law Office entered its appearance as counsel in its November 17, 2015 Entry of Appearance with Motion for Extension of Time to File Appellant’s Brief which the Honorable Appellate Court granted in an Order dated March 31, 2016 and further directing appellant to file his brief within thirty (30) days from notice.

The said Order was received by counsel on April 06, 2016. On April 28, 2016, counsel moved for a sixty (60) day extension of time to file appellant’s brief reckoned from the expiration of the original period of thirty (30) days or from May 6, 2016.

Hence, this Appellant’s Brief is filed within the period sought to be extended.

STATEMENT OF FACTS

In the afternoon of September 21, 2004, while accused-appellant was sitting in front of a house occupied by a Rex Sedlex, armed men approached him and pointed their guns at him. Accused-appellant was unarmed. He did not have the gun tucked in his left waist; or anywhere within his immediate control or dominion, contrary to the allegations of the complaint.

When informed about the existence of a Warrant of Arrest against his person, accused-appellant showed the policemen his bailbond receipt. Notwithstanding the documents shown them, the police men handcuffed the accused-appellant and entered the house occupied by Rex Sedlex which the

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latter uses as the office for the Republic Agency – a security and janitorial service provider.

Testifying for the prosecution, PO2 Alibasa I. CALABASA and PO3 Lutian, stated that an Alberto Fernandez reported seeing the accused-appellant in his Putik house. PO2 Alibasa claimed that the fact that a Warrant of Arrest was pending against the accused-appellant was known to them because they personally showed a copy of the warrant of arrest to the accused-appellant. When asked during cross-examination where that Warrant of Arrest was, PO2 Alibasa did not know. The prosecution neither included a copy of the Warrant of Arrest to form part of their documentary evidence or called to the witness stand the chief of the warrant section of the Zamboanga City Police Office to testify that a warrant of arrest was served upon the person of the accusedappellant.

PO2 Alibasa also testified that after he served the warrant of arrest to accused-appellant, he noticed something bulky in his left waist which when he touched, gave him the impression that it was a firearm prompting him to immediately search the accused-appellant.

PO2 Alibasa described that the firearm he recovered from the left waist of the accused-appellant is a COLT cal. .38 pistol which when turned over to the Investigator-on-case, PO3 Lutian, yielded five (5) live ammunitions - four (4) live 357 ammunitions and one (1) .38 ammunition loaded on a caliber 38 pistol.

After both the prosecution and defense presented their evidence, the court a quo rendered judgment convicting the accused-appellant of the crime 7

charged. A Motion for Reconsideration5 of the Judgment, herein attached as ANNEX “3”6 was filed by Atty. CALUAG raising the illegality of the accusedappellant’s arrest as a matter not considered by the court a quo in rendering its Judgment dated April 10, 2014.

On June 11, 2014, the court denied accused-appellant’s Motion for Reconsideration holding that:

A perusal of the arguments raised therein by the accused-movant in its motion, it would seem that the accused is banking on the alleged illegal arrest and illegal search and seizure having not been considered by this Court in arriving at its assailed Judgment of April 10, 2014 against the herein accused. On the contrary, the Court did consider the same as it was in fact admitted by the accused himself during his direct examination on March 6, 2014 that he indeed had a warrant of arrest issued against him in Ipil and that he already posted bail therefor. At the time of his arrest, in fact, he accordingly showed the arresting officers the receipt of the bail bond he allegedly posted for his provisional liberty thereon under Official Receipt No. 69919770A in the amount of P30,000.00 for Criminal Case No. 19043.

Unfortunately, the subject proof that he was

already out on bail at the time he was arrested by the arresting officers in the herein case was never submitted and offered in evidence by the accused despite the opportunity to do so. In fact, not a single documentary evidence was formally offered by the accused being directed by the Court to do so in the Order of March 6, 2014.7

Hence, this present appeal.

5

Motion for Reconsideration dated May 11, 2014

7

ANNEX “4” –Order dated June 11, 2014 8

ISSUES I THE COURT A QUO ERRED IN NOT HOLDING THAT THE ARREST OF ACCUSED-APPELLANT WAS UNLAWFUL.

II THE TRIAL COURT ERRED IN RESTRAINING PRESENTATION OF THE RECEIPT EVIDENCING PAYMENT OF BAIL BOND POSTED FOR THE ACCUSED-APPELLANT EVEN WHEN ITS ALLOWANCE WOULD BETTER SERVE THE ENDS OF JUSTICE

III THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED FIREARM AND AMMUNITIONS DESPITE BEING THE RESULT OF AN UNLAWFUL ARREST IV THE COURT A QUO ERRED IN GIVING CREDENCE AND PROBATIVE VALUE TO THE CONFLICTING, CONTRADICTORY AND UNRELIABLE TESTIMONY OF THE PROSECUTION’S WITNESSES

ARGUMENTS I FIRST ASSIGNMENT OF ERROR THE COURT A QUO ERRED IN NOT HOLDING THAT THE ARREST OF ACCUSED-APPELLANT WAS UNLAWFUL.

SPO2 Alibasa I. CALABASA (SPO2 CALABASA, for brevity) testified that he personally received the report/complaint of a certain Alberto Fernandez (Fernandez, for brevity) in the afternoon of September 21, 2004. According to

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SPO2 CALABASA, Fernandez reported that he “sighted” the accused-appellant at the latter’s residence. Mr. Fernandez’ report, however, only concerned his filing of a case for Estafa against accused-appellant. After being told that by Mr. Fernandez, SPO2 CALABASA immediately informed the chief of warrant, a certain P/Insp. Castillo who conducted a briefing regarding the arrest of the suspect. SPO2 CALABASA never mentioned that Fernandez told him that a Warrant of Arrest was issued against the accused-appellant in connection with the case that he filed against accused-appellant. It would appear that SPO2 CALABASA did not know that there was a Warrant of Arrest. In fact, when asked by then counsel for the accused-appellant Atty. CALUAG during crossexamination; witness SPO2 CALABASA admitted that Fernandez did not tell him that there was a pending Warrant of Arrest.

SPO2 CALABASA’s testimony is reproduced below:

DIRECT EXAMINATION PROSECUTOR JOSE DE LA CRUZ xxx Q

Now, do you recall having reported for work on that day, September 21, 2004, more or less in the afternoon?

A

Yes, Sir, I was at the Zamboanga City Police Station.

Q

Now, Mr. Witness, can you still recall if there was any person who filed a report or complaint before your office during that day, September 21, 2004 at around 3 o’clock in the afternoon?

A

Yes, Sir.

Q

Can you still remember the name of that person, Mr. Witness?

A

Yes, Sir.

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Q

Will you please state to us for the record, the name of that person?

A

Mr. Alberto Fernandez, Sir.

Q

This Alberto Fernandez, to whom did he actually reported the complaint?

A

To me, Sir.

Q

And can you tell us Mr. Witness, what was the report all about?

A

The report of Mr. Alberto Fernandez, according to him, he sighted Mr. Andres Bonifacio at his residence.

Q

And why did Mr. Alberto Fernandez report that the suspect, Andres Bonifacio was seen at his residence?

A

Because he filed a case for Estafa, Sir.

Q

Against whom?

A

Against Andres Bonifacio, Sir.

Q

Now, after receiving this complaint, what did you do?

A

I inform my immediate supervisor Sir, who is the chief of warrant, then P/Insp. Castillo, Sir, who is the chief of warrant, then P/Insp. Castillo, Sir.

Q

And did you talk to him?

A

Yes, Sir.

Q

And what was the response of your chief?

A

Immediately, he conducted a short briefing, Sir, regarding the arrest of the subject, Sir.

Q

So, after that briefing Mr. Witness, can you tell us what happened next?

A

After that briefing Sir, we immediately proceeded to the area8

CROSS-EXAMINATION ATTY. ED CALUAG Q

Mr. Witness, do you know Mr. Alberto Fernandez?

A 8

Only that day Sir, when he reported to our

TSN November 22, 2014, pp 5-7 11

office, Sir. Q

And it was he who told you that Andres Bonifacio has a pending warrant of arrest?

A

At that time, Sir, no Sir, he did not tell me.

Q

What did he tell you?

A

He just told me that he sighted Andres Bonifacio in his residence, Sir.9

SPO2 CALABASA did not, however, hear Mr. Fernandez tell the chief of the warrant section, P/Insp. Castillo, about a warrant of arrest having been issued against the accused-appellant; thus he said during the same cross-examination:

Q

Who told you that Andres Bonifacio has a warrant of arrest?

A

One of our companions, Sir.10

SPO2 CALABASA however, maintained that he presented the warrant of arrest to the accused-appellant upon their arrival at the latter’s Putik residence.

Records of the case will show that no Warrant of Arrest was

presented to support his claim. In fact, in the Pre-Trial Order11, herein attached as ANNEX “5”, a warrant of arrest was not among those documentary exhibits listed for the Prosecution. More importantly, the testimony of P/Insp. Castillo – to whom Mr. Fernandez allegedly reported the fact that a warrant of arrest was issued against accused-appellant in connection with the case that the former filed against the latter, was not offered in evidence.

It bears stressing that the accused-appellant, at the time of his arrest, produced his release order and all documents appurtenant thereto.

9

TSN November 22, 2014, p. 29 TSN November 22, 2014, p. 30 11 Annex “5”, Pre-Trial Order dated March 27, 2006 10

12

Specifically, accused-appellant showed SPO2 CALABASA the Order of Release dated August 24, 2004 issued by Hon. Arthur L. Ventura, Presiding Judge of the Municipal Circuit Trial Court of Ipil-Tungawan-R.T. Lim in Ipil, Zamboanga Sibugay province herein attached as ANNEX “6”; and, Order of Discharge from Custody issued by Hon. Gregorio del Pilar, Presiding Judge of RTC Branch 50, Ipil, Zamboanga Sibugay herein attached as ANNEX “7”.

When the accused-appellant was called to the witness stand, he testified that at the time police officers approached him while he was seated outside the house in his compound occupied by a Rex Sedlex,

he showed

them the “bond” which he posted in Ipil, Zamboanga Sibugay for the case that Mr. Fernandez filed against him. After having posted bail, the warrant of arrest issued against accused-appellant in connection with the Estafa case file against him ceased to have any effect. An arrest made under the said warrant cannot be made without running afoul with the constitutional proscriptions on unreasonable searches and seizures.

Our Constitution recognizes the right of the people to be secure in their persons, papers, houses and effects against unreasonable searches and seizures.

Such right is deeply enshrined in Section 2, Article III of the 1987

Philippine Constitution which states:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination 13

under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Accused-appellant testified that the original of the receipt for the bond filed was submitted to the City Prosecutor’s Office when he filed his Counter-Affidavit. After having identified a machine copy of the same receipt shown to him by his counsel, Atty. CALUAG, Trial Prosecutor ACP Procy Cutor manifested that the receipt was not included in the Pre-Trial Order for which Presiding Judge, Hon. Lex Luthor reminded Atty. CALUAG of his ruling on matters such as the one presented by ACP Cutor.

The presentation of the receipt

evidencing payment of the bond was thus restrained by the trial court noting its stern warning.

II Second ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN RESTRAINING PRESENTATION OF THE RECEIPT EVIDENCING PAYMENT OF BAIL BOND POSTED FOR THE ACCUSED-APPELLANT EVEN WHEN ITS ALLOWANCE WOULD BETTER SERVE THE ENDS OF JUSTICE

In the course of the testimony of accused-appellant, Atty. CALUAG presented the machine copy of the receipt evidencing payment of the bond for accused-appellant’s temporary liberty.

ACP Cutor manifested that the

receipt was not listed in the pre-trial order to which Atty. CALUAG pleaded with the trial court that the evidence be allowed “to form part of his testimony”. The trial court restrained the presentation of the document, however, as reflected in the following transcript of stenographic notes taken on March 6, 2014:

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COURT:

You know my ruling on that, I do not allow the presentation of documentary evidences (sic) not included in the pre-trial conference, much more when it is a machine copy…

Atty. ED CALUAG: Yes, Your Honor.12

Having restrained the defense counsel from pursuing introduction of the receipt as evidence of bail being posted by the accused-appellant, then defense counsel, Atty. CALUAG, did not offer any documentary evidence for the reason that there is none to offer - the defense’s only documentary evidence having been restrained introduction by the trial court in its proceedings of March 6, 2014.13

Section 1, Rule 118 of the Revised Rules of Criminal Procedure requires that a pre-trial conference be called for the purpose of marking for identification of evidence of the parties, among others. The prohibition against introduction of documents or evidence not listed in the Pre-Trial Order is not written anywhere in the Rules.

While the receipt does tend to surprise the

adverse party during trial, its introduction would undeniably prevent the miscarriage of justice, as what the accused-appellant herein had already occasioned when the court a quo failed to consider the illegality of his arrest.

In Domingo de Guzman vs. Sandiganbayan the Court held: The Rules of Court were conceived and promulgated to set forth guidelines in the dispensation of justice but not to bind 12 13

TSN, March 6, 2014 Ibid. 15

and chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That is precisely why courts in rendering real justice have

always

been,

as

they

in

fact

ought

to

be,

conscientiously guided by the norm that when on the balance, technicalities take a backseat against substantive rights,

and

not

the

in

the

technicalities,

other

way

appropriate

around.

Truly

language

of

then, Justice

Makalintal, "Should give way to the realities of the situation."14

In Commissioner of Internal Revenue vs Mirant Pagbilao Corporation, the Court held:

“The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it.

What

constitutes good and sufficient case that would merit suspension of the rules is discretionary upon the courts.”15

It is admitted that the receipt was not among those documentary exhibits for the defense listed in the Pre-Trial Order but it cannot be denied that the relaxation of the rules, which the court is most certainly empowered to do, would work to the serve the ends of justice such that it would establish the illegality of the arrest of the accused-appellant and of the search that ensued.

III Third ASSIGNMENT OF ERROR THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE 14 15

G.R. No. 103276, April 11, 1996 G.R. NO. 159593, October 12, 2006 16

SEIZED FIREARM AND AMMUNITIONS DESPITE BEING THE RESULT OF AN UNLAWFUL ARREST

Having posted bail at the time of the arrest, the warrant of arrest claimed by the prosecution’s witnesses to have been the impetus for their foray into accused-appellant’s residence ceased to have any effect. Thus, the arrest of the accused-appellant on September 2, 2004, when accused had already posted bail, was one without a valid warrant.

Strengthening the protection of the people against any evidence obtained in violation of Section 2, Article II of the 1987 Philippine Constitution, Section 3(2) of the same article which provides: Xxx (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Thus, even assuming for the sake of argument that the firearm and ammunitions were indeed seized from his waist, the police officers had no legal justification to conduct a search of his person because the warrant of arrest relied on ceased to have any legal effect when herein accused-appellant posted a bond. The document evidencing payment of the bond was shown to them by the accused-appellant but was ignored by the policemen, even denying

It was never shown that accused-appellant was committing an illegal act in the presence of the police officers to justify his arrest even without a warrant. Thus, the arrest cannot fall under the recognized exceptions under Section5, Rule 113 of the Revised Rules of Criminal Procedure.

17

Testing the facts of the instant case against recognized exceptions under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, no legal justification existed for the arrest of the accused-appellant. In order that Section 5 of the aforementioned Rule to apply certain requisites must concur:

For the warrantless arrest under paragraph (a) of Section 5 to operate, two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. On the other hand, paragraph (b) of Section 5 requires for its application that at the time of the arrest, an offense had in fact just been committed and the arresting officer had personal knowledge of facts indicating that the appellant had committed it. 16

It was never mentioned that accused-appellant was committing an offense at the time he was arrested by the police officers to bring him within the coercive force of the state without running afoul with the Constitution. IV Fourth ASSIGNMENT OF ERROR THE TRIAL COURT ERRED IN GIVING CREDENCE AND PROBATIVE VALUE TO THE CONFLICTING, CONTRADICTORY AND UNRELIABLE TESTIMONY OF THE PROSECUTION’S WITNESSES

“It is accepted that, as a rule, minor inconsistencies in the testimonies of witnesses will not affect their credibility. x x x

16

People vs Villareal, G.R. No. 201363, March 18, 2013 18

However, when the inconsistencies pertain to material and crucial points, the same detract from their overall credibility (People vs. Rodriguez, 205 SCRA 791).

In the case at bar it is hereby pointed out that the glaring inconsistencies in the number and kind of live ammunitions as alleged in the Information and in the conflicting testimonies of SPO2 CALABASA and PO3 Lutian on the number and kind of ammunitions which they allegedly recovered from the accusedappellant, and inconsistencies on other material points are such that not only their credibility but that of the case built by the prosecution is eroded.

ON THE NUMBER AND KIND OF AMMUNITIONS SEIZED In the Information, it is alleged that the accused-appellant was in possession of “one (1) .357 Revolver (paltik) marked COLT Cal. .38 with serial number 00455 and loaded with four (4) live ammunition of .38 caliber”. Both SPO2 CALABASA and PO3 Lutian testified that there were five (5) live ammunitions but while the information alleged that the ammunitions recovered were of the .38 caliber, SPO2 CALABASA testified that the ammunitions recovered were four (4) live 357 ammunition and one .38 ammunition. Since the allegations embodied in the Information have to be proved, it therefore behooves upon the prosecution to establish that indeed the very objects seized during the arrest of the accused-appellant, are the ones presented in court as the corpus delicti of the offense.

19

In the Pre-Trial Order17 of the court a quo dated March 27, 2006, the prosecution listed as Exhibits “G” to “G-4” – five (5) live ammunition of 357 cal. and as Exhibit “H”, one (1) live ammunition of .38 Caliber. It would already appear, at this point, that the exhibits listed are markedly different from the ones allegedly seized from the possession of the accused-appellant.

On August 10, 2006, SPO2 Alibasa I. CALABASA, one of the members of the arresting team who allegedly came to execute a warrant of arrest against herein accused-appellant, testified. With respect to the ammunitions allegedly seized, SPO2 CALABASA stated:

DIRECT EXAMINATION: PROSECUTOR JOSE DE LA CRUZ Q:

After turning over it to the investigator, what did the investigator do with the said firearm?

A:

I was removing and seeing if there is a bullet inside that firearm, Sir and when he saw that there is a bullet, he removed the bullet, Sir.

Q:

Where were you when this bullet was removed by the investigator?

A:

I was in front of him, Sir.’

Q:

And you know how many bullets were there when it was removed?

A:

That was five (5) live ammunitions, Sir.18

Xxx Q:

17 18

Now, Mr. Witness, you said you also saw a live bullet or live

supra TSN, August 10, 2006, pp.17-18 20

ammunition removed by the police investigator and it was done in your presence, can you please described (sic) to us this bullet Mr. Witness, if you know? A:

There were four (4) live .357 ammunitions and one .38 ammunition.19 (emphasis supplied)

On November 22, 2006, the Prosecution called PO3 Basher Lutian, Investigator-on-Case, testified:

DIRECT EXAMINATION: PROSECUTOR JOSE DE LA CRUZ Xxx Q:

Now Mr. Witness, you also mentioned in the Complaint Assignment Sheet the five (5) live ammunition and initials which was identified by the witness previously marked as exhibit “F-2”, I am showing to you this five (5) live ammunition, will you please examine and tell us if you can recall that five (5) live ammunition?

A:

Yes sir.

Q:

And can you tell us what are the relation of those five (5) live ammunition which was submitted to you on September 21, 2004 together with the accused in this case?

A:

These are the very live ammunition that were turned over to me.

Q:

Can you tell us under what circumstance or circumstances that you recognized those live ammunitions right away?

A:

My markings in pilot pen as “BL” on the shells.

Q:

All the live ammunitions?

A:

All of them.20

From the evidence adduced by the prosecution, five (5) live ammunitions were recovered loaded inside the “one (1) .357 Revolver (paltik) marked COLT

19 20

TSN, August 10, 2006, pp. 21-22 TSN November 22, 2006, pp. 10-11 21

Cal. .38 with serial number 00455” allegedly seized from the accused-appellant, of which four (4) were 357 ammunitions and one (1) of the .38 caliber.

It is evident that there is not only a departure from the allegations of the Information but that the offense charged in the Information was not proven by the prosecution.

PRAYER WHEREFORE, premises considered, it is most respectfully prayed that the “JUDGMENT” dated 10th April 2014 of the trial court be REVERSED and SET ASIDE and accused-appellant ANDRES BONIFACIO y DE CASTRO be ACQUITTED with costs de officio. Other forms of relief, just and equitable under the premises, are likewise prayed for. Zamboanga City for Cagayan de Oro City, July 4, 2016.

THE B.E.S.T. LAW OFFICE Counsel for Accused-Appellant ANDRES BONIFACIO y DE CASTRO Nuñez Street, Zone 3, Zamboanga City By: ED CALUAG Roll No. 22222 PTR No. 1162445, Dec. 17, 2018, Z.C. IBP O.R. No. 897125, Dec. 17, 2018, Z.C. MCLE Compliance No. V-0014261, 02/16/16 Copy furnished: OFFICE OF THE SOLICITOR GENERAL 134 Amorsolo St. Legaspi Villaae, Makati City

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