Demurrer - Nabua Rev01

REPUBLIC OF THE PHILIPINES FOURTH JUDICIAL REGION REGIONAL TRIAL COURT Branch 22 CITY OF IMUS, CAVITE PEOPLE OF THE PHILIPPINES, Plaintiff, -versus-

Crim. Case No. 5781-09 For: Rape Under Art. 266, RPC

ARTURO NABUA,

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

DEMURRER TO EVIDENCE Accused ARTURO NABUA, by counsel, unto this Honorable Court, most respectfully avers that: 1. On 05 April 2019, herein accused, through counsel,

received a copy of this Honorable Court’s Order directing accused to file his Demurrer to Evidence within a period of five (5) days from receipt of such Order. Thus, he has until 10 April 2019 to file his demurrer to evidence. Hence, this Demurrer to Evidence is seasonably filed;

2. In the case of People of the Philippines v. Jose C. Go, G.R.

No. 191015, 06 August 2014, the Honorable Supreme Court held: “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. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. x x x Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the 1

judicial or official action demanded according to the 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." Thus, when the accused files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt.” 3. As will be discussed herein under, the evidence of the

prosecution is insufficient to establish the guilt of the accused for the crime of Rape as defined and penalized under Article 266 of the Revised Penal Code; The Charge 4. An Information was filed against the accused Arturo

Nabua y Saac which alleged in substance that on or about 10:00 in the evening of January 23, 2009, suspect allegedly raped the victim by inserting his penis to the vagina. The Evidence of the Prosecution 5. The prosecution presented its witness, in the person of

private complainant PO1 John Rolf Garcia and PO1 Aris M. Galarce. They identified their Joint Affidavit of Arrest which formed part of their direct testimonies, and which, among others, stated the following: 6. Based on the testimonies of the prosecution witnesses and

the documents offered, the prosecution’s evidence is insufficient to warrant conviction of the accused beyond reasonable doubt. Hence, this Demurrer to Evidence With Leave of Court. THE INSUFFICIENCY OF THE PROSECUTION’S EVIDENCE 7. “In all prosecutions, the accused is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required”. (People of the Philippines v. Erlinda Capuno y Tison, G.R. No. 185715, 19 January 2011, 640 SCRA 233 [2011]) The indictment 2

against the accused should be evaluated and weighed with the above-quoted guiding principle at heart. 8. The Information charges accused Nabua of raping the private complaining witness in the person of Matilde Manalastas; 9. Rape as defined under Article 335 of the Revised Penal Code, which provides, to wit: “ARTICLE 335. When and How Rape is Committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. The crime of rape shall be punished by reclusión temporal.”

10. Based on the evidence submitted by the prosecution as well as the testimony of its witnesses, it is clear that no rape was committed by the accused. This is shown by the Gynecologic Emergency Sheet submitted by the prosecution which stated that no lesion was seen or found in any part of the private complainant’s genital, or on any other parts of her body; 11. Likewise, the testimony of private complainant negates a finding of rape since, as testified by her, she and the accused had been sharing sexual intimacy and having sexual intercourse for several times already before the alleged crime of rape was committed; 12. Moreover, prosecution’s witness Ramon dela Torre, a Barangay Tanod, testified that he had not seen the commission of the alleged rape, and that he was only told about it by other persons. He was not even at the place of commission of the alleged rape at the time it was allegedly committed since he was at the Office of Barangay Hall.

3

Hence, he had no personal knowledge of the commission of the alleged rape; 13. Clearly, the prosecution has not proven beyond reasonable doubt that the accused committed rape against the private complainant. Neither did the prosecution establish that accused employed force or intimidation, or that the private complainant was then deprived of reason or otherwise unconscious during the alleged act of carnal knowledge; 14. After a careful examination of the Joint Affidavit of the

prosecution’s witnesses Felio Cantada and Ramon Dela Torre, it is clear that the prosecution failed to establish the fact of rape. The affiants in said Joint Affidavit stated that there were children who asked for their help because according to them (the children) the alleged victim Matilde Manalastas was raped by accused Nabua. Pertinent portion of the Joint Affidavit states: “Na, kanina ika-23 ng Enero 2009, sa oras na humigit kumulang 11:00 ng gabi habang kami ay gumagampan sa aming tungkulin ay dumating sa aming tanggapan at humihingi ng tulong sa amin ang mga bata sa dahilang nagsumbong sila sa amin na may nang-rape daw po at ang biktima ay itong si MATILDE MANALASTAS, wala sa hustong pag-iisip at isang pipi na ang suspect ay si ARUTRO NABUA y SAAC;” 15. The affiants were not present at the place of commission

of the alleged crime of rape. They have no personal knowledge of any factual circumstance that transpired at the time of commission of the alleged crime of rape. And even the little knowledge that they have about the incident and which are stated in their Joint Affidavit are mere narration of other persons; 16. Moreover, in the said Joint Affidavit, according to the

children, the alleged victim was brought by herein accused at a vacant house where they saw how the accused allegedly inserted his penis into the mouth of the private complaining witness and how he took advantage of her. Pertinent portion of said Affidavit states: “Na, ayon sa salaysay ng mga batang nakasaksi ay dinala itong si Matilde ang suspect sa isang bakanteng bahay at dito ay nakita nila 4

kung paano ipinasubo ng suspect ang kanyang ari sa biktima at kung paano ito pinagsamantalahan ang kahinaan ng biktima.” 17. Likewise, the said affiants had no personal knowledge of

this alleged criminal act. The alleged act of rape was narrated only to these affiants and hence, said allegation cannot be accepted or admitted as evidence for being hearsay; 18. Moreover,

the second witness presented by the prosecution admitted during his cross examination that he had no personal knowledge of the alleged act of rape since he had not seen the accused doing anything with the private complaining witness. In fact, in his testimony, he testified that he learned only about the alleged incident when the barangay officials went to the alleged place of commission of the alleged crime of rape, after the children had reported the alleged incident, and at which time, neither the accused nor the alleged victim was there at the alleged place of commission of the offense;

19. No eye-witness was presented by the prosecution. The

testimony of the private complaining witness can hardly be given an accurate interpretation for lack of an interpreter who could decipher her signs since the private complaining witness is not learned or knowledgeable of the standard sign language; 20. Nonetheless, her testimony would show that no force or

intimidation, was employed by herein accused against the private complaining witness. And neither was the private complainant then deprived of reason or otherwise unconscious during the alleged act of carnal knowledge. Thus, even assuming that there was sexual intercourse which occurred during that day as alleged in the Information, clearly, the prosecution failed to establish that such sexual intercourse was not consensual; 21. In the absence of any violence or force which would

compel the alleged victim to surrender her body or give in to the supposed desires of the accused, there could be no rape committed; 22. As a matter of fact, the alleged victim testified that she

had sexual intercourse with the accused for many times, more or less ten (10) times. And if indeed the alleged 5

victim claims that she was raped during the tenth (10th) instance of sexual intercourse, there is no reason why she would not have resisted and made known her refusal to give in to the supposed desires of the accused by physically turning away and/or violently refusing to participate in the act of sexual intercourse; 23. Even assuming that there was then a sexual intercourse

as alleged, the right interpretation of the circumstances is that the private complaining witness actually consented to the sexual act. The report of the children were but inaccurate narration and interpretation as seen by minor and immature eyes of children who still had no idea of what they saw and how they would characterize such behavior of adults; 24. The fact of amorous affair shared by the alleged victim

and the accused was confirmed when the alleged victim herself testified that she and the accused had consensual sexual intercourse for so many times. Admittedly, as the Honorable Supreme Court would state, love is not a license for lust, however, a sexual act of two consenting adults is not punishable and could not, in any degree, be categorized as rape; 25. Moreover, the Gynecologic Emergency Sheet states that no

lesion was seen on the private part of the alleged victim. It may somehow not totally rule out sexual assault but it is still an evidence supporting the claim of the accused that he did not rape the private complaining witness; 26. All in all, the evidence of the prosecution is insufficient to

warrant the conviction of the accused beyond reasonable doubt. 27. The consistent rule is that penal statutes have to be

construed strictly against the State and liberally in favor of the accused. (Ambito v. People, G.R. No. 127327, 13 February 2009) It is submitted that the Honorable Court should not deviate from this long-standing principle. 28. Prescinding from the foregoing discussion and submission

of the prosecution, the accusation against accused must rise and fall based on the prosecution’s own evidence. The total picture that the evidence of the people created did not muster the requisite degree of proof 6

beyond reasonable doubt to sustain a judgment of conviction against accused. Albeit repetitive, the case against accused must rise and fall, not on the weakness or even the absence of evidence of the defense, but must be won on the strength of its own evidence. Prayer WHEREFORE, premises considered, it is respectfully prayed that the instant case BE DISMISSED for insufficiency of evidence. Other reliefs, just and equitable under the premises, are also prayed for. Makati City for Imus City, 09 April 2019. BAYAUA AND ASSOCIATES LAW OFFICES Counsel for Accused 3/F Gonzalez Bldg., 1888 Orense St., Guadalupe Nuevo, Makati City Tel Nos. (02) 750-4439; (02) 881-7629 By: ATTY. JORICO FAVOR BAYAUA IBP Life Member Roll No. 09572/01-13-11 PTR No. 5913229/01-05-17 / Makati City Roll No. 47842 MCLE Compliance No. V-0022582 July 4, 2016

Copy Furnished: _____________________ _____________________ _____________________

EXPLANATION (If not served by registered mail)

7

A copy of the foregoing DEMURRER TO EVIDENCE is being served through registered mail with return card due to distance and lack of manpower to effect personal service.

JORICO FAVOR BAYAUA

8