Republic of the Philippines

REGIONAL TRIAL COURT OF NEGROS ORIENTAL

7th Judicial region
Branch XX
Dumaguete City

PEOPLE OF THE PHILIPPINES,

Plaintiff, CRIM. CASE NO. _____

- versus - FOR: VIOL. OF SEC. 11,

ART. II, R.A. 9165

______________________________,
Accused.

x- - - - - - - - - - - - - - - - - - - - - - -/

DEMURRER TO EVIDENCE

ACCUSED, by and through counsel, unto this Honorable Court most respectfully
submits his Demurrer to Evidence and asseverates that:

PREFATORY STATEMENT

The Honorable Supreme in the case of Nicolas Vs. Sandiganbayan, G.R. No.
176010-11, February 11, 2008, where it granted the Demurrer to Evidence of the
accused, states, that:

A demurrer to 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 to make out a case or sustain the issue.

The party filing the demurrer in effect challenges the

sufficiency of the prosecutions evidence. The Court is thus tasked to
ascertain if there is competent or sufficient evidence to establish a
prima facie case to sustain the indictment or support a verdict of guilt.

As submitted by the accused the prosecution failed to prove the elements of the
crime charged. Accused, thus, pleads to the Honorable Court to take a look at the
failure of the prosecution to prove the elements of the crime as charged and
dismiss this case.

ARGUMENT

The prosecution had failed to

establish that the two sachets
of shabu were in the
possession of the accused.

In People v. Bautista, G.R. No. 177320, February 22, 2012, the Supreme Court laid
down the elements of possession of dangerous drugs:

For illegal possession of a dangerous drug, like shabu, the elements are: (a)
the accused is in possession of an item or object that is identified to be a
prohibited or dangerous drug; (b) such possession is not authorized by law;
and (c) the accused freely and consciously possessed the drug.

In the case at bar, the prosecution had failed to establish the first element that the
two sachets of shabu confiscated were of the accused. The witness presented by the
prosecution, Kagawad _______________, stated in his testimony that he did not see
that the accused, _______________, was in actual possession of the two sachets of
shabu. He only saw that these sachets were on the ground, near the accused. He
testified:

On direct examination by Pros. Joseph Arnel Zerna:

Q: What did you do next?

A: When he gave his ID, he sat down and when I focused the flashlight on
his ID, Enrique was just sitting down then the Tanod shouted that something
fell down.

Q: What did you do when your Tanod shouted that something fell down?
A: I focused the flashlight on the thing that fell down.

Q: What was it?

A: First I noticed that it is just a wrapper but when I looked at it closely there
was a reflection in the sachet, I took it and it was a transparent plastic sachet.

Q: Did that transparent plastic contained anything?

 A: Yes, Sir.

Q: What did it content?

A: It was a suspected shabu.

Q: Did you notice from where it came from and then dropped off?
A: At the side. (Witness demonstrating that as if the witness was sitting
down the items fell down from his left side)

[TSN, Favor, March 12, 2014, pages 6-7]

Further, on cross examination, he testified that:

On cross examination by Atty. Allan Martinez:

Q: So when you said that something fell down, Mr. Witness, it was said by
somebody else?
A: The Tanod
Q: Probably, your tanod, yes, but at that time, Mr. Witness, you focusing
your attention to the ID, is that correct?
A: Yes, Sir.

Q: So you will agree with me, Mr. Witness, that you did not see that
something fell down, is that correct?
A: Yes, Sir.

Q: You did not see?

A: No, Sir.

[TSN, Favor, March 12, 2014, page 13]

It is clear from the foregoing testimonies of the witness that he did not see for
himself that the sachets of shabu came from the pockets of the victims. What he
only saw was that the sachets were on the ground. He further stated:

On cross examination by Atty. Allan Martinez:

Q: So Mr. Witness when you said you focused your attention on it, that is
and you said that there was an alleged sachet of shabu that you got, you just
 presumed Mr. Witness, that it was coming from the accused because as you
said, you did not see what fell down, is that correct?
A: Yes, Sir.

Q: You had alleged the two sachets of shabu to be owned by the accused
based on your presumption, is that correct?
A: Yes, Sir.

[TSN, Favor, March 12, 2014, pages 15-16]

Other than the witness admitting that he only presumed the sachets to be possessed
by the accused, the prosecution also failed to establish that the sachets fell from the
pocket of the accused when he took out his drivers license. He testified:

On redirect examination by Pros. Joseph Arnel Zerna:

Q: Mr. Witness when Enrique Ozoa took out his drivers license and showed
it to you, from where did it come from?
A: In his pocket.

Q: Which sides of his pants?

A: Right side.

Q: I would like to show you again your affidavit that you have earlier
identified and I invite your attention to paragraph 6 which says and I quote,
Enrique took his drivers license from his short pants left side pocket,
would you still maintain that it is from his right pocket?
xxxxx
A: Its in the right side, Sir.

Q: So the left side pocket you mentioned in paragraph 6, is not correct?

A: Its in the right side.

Q: Anyway, you maintain that it was on the right side pocket?

A: Yes, Sir.

[TSN, Favor, March 12, 2014, pages 16-17]

Clearly, based on the statements of the witness presented, it has not been
established that the two sachets of shabu fell from the pocket of the accused and
thus, was his. This failure of the prosecution to prove beyond reasonable doubt that
the accused was in possession of the illegal drugs must be deemed therefore to be
enough reason for this Honorable Court to dismiss the case.

As early as in People v. Sadie, G.R. No. L-66907, April 14, 1987, and Perez v.
Sandiganbayan and People of the Philippines, G.R. Nos. 76203-04, December 6,
1989, the Supreme Court has always reiterated the ancient principle that no one
shall be found guilty of crime except upon proof beyond reasonable doubt.

In fact, in People v. Guinto, G.R. No. 88400, April 6, 1990, the Supreme Court
held:

This Court has repeatedly declared that even if the defense is weak, for the
conviction of the accused must rest not on the weakness of the defense, but
on the strength of the prosecution. Indeed, if the prosecution has not
sufficiently established the guilt of the accused, he has a right to be
acquitted and released even if he presents naught a shred of evidence . .
. . The accused-appellants have been condemned . . . based on uncertain
evidence clearly insufficient to sustain their conviction. It is their guilt and
not their innocence that has been presumed. It is their innocence and not
their guilt that should have been pronounced. (Emphasis supplied.)

In view of the foregoing argument presented, it is humbly submitted by the

accused that the prosecution failed to establish all the elements of the crime
charged when it failed to establish beyond reasonable doubt that it was the accused
who was in possession of the illegal drugs.

RELIEF

WHEREFORE, premises considered, it is respectfully prayed that the

above-entitled case be dismissed for the reason that the prosecution have failed to
prove the guilt of the accused beyond reasonable doubt as it failed to prove the
elements of the crime.

Other remedies just and equitable under the premises are likewise prayed
for.

Respectfully Submitted.
_________________. Dumaguete City, Philippines.
 ATTY. ALLAN C. MARTINEZ
[Counsel for the Accused]
Rm 205, 2nd Floor, Bricktown Center Building
Crossing Brix, Daro, Dumaguete City
PTR No. 0905699 / 1-13-15-Dumaguete City
IBP No. 960690 / 12-23-14- Dumaguete City
Roll No. 46614
MCLE Compliance No. IV-0014861-March 25, 2013
Landline No. [035]421-2889
Email Add: lantoy81@yahoo.com

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