We are sharing a demurrer to evidence in a criminal case that our law office prepared for legal research purposes of our readers.
DEMURRER TO EVIDENCE
THE
ACCUSED X X X X (“X X X
X ”), by undersigned counsel, respectfully states:
I.
THE INFORMATIONS.
1. GRAVE THREATS. - The Information for one
count of GRAVE THREATS against the accused X X X X , docketed as Crim. Case No. M-PSY- xxx-CR,
alleges that:
1.1.
The felony was allegedly committed on 8 July 2010 in Xxx City.
1.2.
The accused X X X X allegedly
THREATENED the private complainant X
X X X [i].
1.3.
The alleged threat consisted of
an “infliction of a wrong amounting to a crime”.
1.4.
More specifically, the accused X X X X allegedly threatened
X X X X that he would “gun down (X X X X
) should he rise from his seat”.
1.5.
The accused X X X X allegedly
acted “without justifiable cause”.
1.6.
The accused X X X X was
allegedly “moved by spite and personal resentment” against X X X X .
1.7.
That alleged purpose of the accused X X X X was to “(collect) money” from X X X X .
1.8.
The accused X X X X allegedly “failed
to attain” all the elements of the felony charged.
1.9.
The accused X X X X allegedly “(created)
fear and anxiety in the mind (of X X X X ) that the threat will be carried out”
2. GRAVE COERCION (First Count). - The
Information for the first count of GRAVE COERCION against the accused X X X X and his co-accused X X X X , docketed as Crim. Case No. M-PSY- xxx-CR,
alleges that:
2.1.
The first count[ii]
of the felony of GRAVE COERCION was allegedly committed by the two accused X X
X X and X X X X on 15
May 2010 allegedly in Xxx City against the same private complainant X X
X X .
2.2.
The two accused allegedly acted in CONSPIRACY with each other.
2.3.
The two accused allegedly acted “without any authority of law”.
2.4.
The two accused allegedly applied “threat and intimidation”.
2.5.
The two accused allegedly “compel(led) (X X X X ) to pay the amount of P500,000.00”.
2.6.
The two accused allegedly
uttered the following words:
“PUTANG INA MO MAGBAYAD KA NG
UTANG MO KUNGHINDI ITUTUMBA KITA MADAMI NA AKONG ITINUMBA SA LAGUNA AT ISUSUNOD
KITA.”
3. GRAVE COERCION (Second Count). - The
Information for second count of
GRAVE COERCION against the accused X X X X and his co-accused X X X X , docketed as Crim. Case No. M-PSY- xxx-CR, alleges that:
3.1.
The second count[iii]
of the felony of GRAVE COERCION was allegedly committed by the two accused X X
X X and X X X X on (the earlier date of) 30 April 2010 in Xxx City against the same private
complainant X X X X .
3.2.
The two accused allegedly acted in CONSPIRACY with each other.
3.3.
The two accused allegedly acted “without any authority of law”.
3.4.
The two accused allegedly applied “threat and intimidation”.
3.5.
The two accused allegedly “compel(led) (X X X X ) to pay the amount of P300,000.00”.
3.6.
The two accused
allegedly “pull(ed) out a gun and
plac(ed) said gun on the table”.
II.
PROSECUTION
EVIDENCE.
A.
WITNESSESES.
1. The
prosecution presented two witnesses, namely, the private complainant himself, X
X X X , and x x x.
2. X
X X X testified on various dates:
February 15, 2012, June 25, 2012, September 5, 2012, December 12, 2012,
February 18, 2013, July 15, 2013, February 19, 2014, June 23, 2014, February
11, 2015.
3. xxx
testified on December 9, 2015.
A.1. – TESTIMONY
OF PRIVATE COMPLAINANT JOSELITO X X X X .
4. Testimony of X X X X Given on February 15, 2012. (Direct examination of X X X X by private prosecutor Atty. A. X X X X ). -
The testimony of X X X X given on
February 15, 2012 basically shows that:
4.1.
He was the president of X X X X HAULER TRADINGS AND CONSTRUCTION (“X X X X ”).
4.2.
Accused X X X X was the vice president and a director of the X
X X X .
4.3.
X X X X consisted of the following directors/officers:
(a) private complainant X X X X as
president; (b) accused X X X X as vice
president; (c) xxx as treasurer; (d) X X X X as director; and (e) X X X X as corporate secretary.
4.4.
Accused X X X X provided financing for xxx.
4.5.
X X X X was engaged in hauling of mining, construction
and trading.
4.6.
X X X X had a hauling service agreement with X X X X MINING (actually named X X X X CONSTRUCTION AND GENERAL SERVICES) in
Zambales. But X X X X was unable to
mobilize due to lack of funds.
4.7.
The incorporators of xxx met to look for
financing. Accused X X X X , vice president, referred his friend, i.e., accused
X X X X .
4.8.
X X X X and X X X X agreed to look for funds to finance the
operations of X X X X .
4.9.
X X X X , X X X X and X X X X agreed that X X X X would raise One Million Pesos (P1,000,000.00)
as loan for X X X X would provide for a
financier from Singapore. X X X X would
be the guarantor of X X X X .
4.10. Ten
Percent (10%) was deducted from the loan, or P100,000.00, as Commission for
accused X X X X .
4.11. The
five signatories to the Memorandum of Agreement (loan agreement) were accused X
X X X , second prosecution witness xxx, private complainant X X X X , X X X X (actually named X X X X ), and accused X X X X .
4.12. The
principal creditor from Singapore was X X X X SINGAPORE (“X X X X ”). X X X X and X X X X executed an agreement to lend funds to X X X X
(with X X X X as guarantor).
4.13. After
deducting the P100,000.00 commission of X X X X, X X X X (treasurer and second prosecution witness) received
P100,000.00 out of the loan as payment for funds he had advanced. The balance
of Eight Hundred Thousand Pesos (P800,000.00) was used for the operations of X
X X X .
4.14. X
X X X identified the financial report of
X X X X showing that the P800,000.00
loan balance was used for the operations of X X X X .
4.15. X
X X X operated for two months to service
X X X X . X X X X was not able to
collect from X X X X . Hence, X X X X stopped its operations. X X X X billed X X X X and sent it a demand letter.
4.16. When
X X X X failed to pay X X X X , conflict
ensured between X X X X and X X X X ,
who was collecting from the former.
4.17. X
X X X alleged in general terms that X X
X X “coerced” him; “defamed” him;
“threatened” him as an xxx confidential agent.
But X X X X did not give any concrete details and
credible proofs thereof.
4.18. X
X X X was allegedly “forced to pay” X X
X X P300,000.00.
But X X X X did not give any concrete details and credible
proofs of the “force” allegedly inflicted on him by X X X X .
4.19. X
X X X and X X X X met at DELLA BAIA RESTAURANT on Macapagal
Avenue, Xxx City. X X X X and accused X
X X X were drinking when accused X X X X
arrived. X X X X alleged that X X X X “threatened” him by “pulling out his gun” and
“putting it on the table”; that the two accused “defamed” him; that X X X X allegedly said, “Kung di mo ko babayaran may paglalagyan ka”.
X X X X paid P300,000.00 to X X X X , who signed the
petty cash voucher, dated April 30, 2010, the same day X X X X paid the amount.
Aside from his
bare allegations, X X X X did not offer
any credible proof of the alleged “threat” by the two accused.
4.20. X X
X X alleged that X X X X “poked his gun” and told him to pay P500,000.00 on May 15, 2010. He
left for fear that the accused would “kill” him. After April 30, 2010, X X X X allegedly continued to “threaten” X X X X .
X X X X did not offer any credible proofs of such
“threat to kill” him nor the concrete details thereof.
4.21. On
May 15, 2010, X X X X sent xxx (actually
named X X X X ) to give a check to X
X X X amounting to P500,000.00. X X X X signed a check voucher for the purpose.
X X X X did not state where the incident took place
for criminal jurisdiction purposes.
Xxx (X X X X )
was not presented to corroborate the
foregoing matter.
The locations
of the drawee bank and the drawer bank were not offered for purposes of
criminal jurisdiction.
4.22. X
X X X alleged that X X X X “continued to threaten his life and his
family”, thus: “Putang ina mo magbayad ka
ng utang mo kung hindi papatayin ko mga pamilya mo pati mga anak mo”,
including X X X X . X X X X alleged that
X X X X told him. “Alam ko ang labas ng mg anak mo sa eskuwela pati paglabas ng asawa mo
sa Bahay.”
Aside from his
bare allegation, X X X X did not offer
concrete details and credible proofs proving the alleged “threat” of X X X X .
5. Testimony of X X X X Given on June 25, 2012. – The testimony of X X X X given on June 25, 2012 basically shows that:
5.1.
X X X X alleged that X X X X continued to “call and threatened” him to pay P438,000.00, representing the balance and the interest
of the loan.
5.2.
X X X X alleged that on June 14, 2010 accused X X X X and X X X X came to his house at No. xxx, xxx Road, xxx City, when he was out of the
house at the time, and they allegedly “dragged” his gate, “talked to his wife”,
and told his wife “Babalikan namin ang
asawa mo, magpaglalagyan siya”.
5.3.
On June
25, 2010, X X X X and his wife
went to the National Bureau of
Investigation (NBI) in Manila because they were allegedly “under threat” to file a complaint.
5.4.
X X X X alleged that on July 3, 2010 X X X X called
him up and asked for a meeting and that the NBI set up a meeting and entrapment operation on July 8, 2010. X
X X X alleged that X X X X called him up “to sit down” (discuss and
resolve the unpaid loan issue) with the
board of directors of X X X X , namely, accused X X X X , X X X X , X X X X
, xxx, and himself (X X X X ). X X X X alleged that X X X X “was forcing” him to pay P438,000.00 for the
balance of the loan. X X X X coordinated
with the NBI to set up the entrapment against the two accused X X X X and X X X X . He executed an affidavit at the
NBI before agent xxx.
5.5.
X X X X set up the entrapment operation at McDonald
Restaurant on Macapagal Ave., Xxx City on July 8, 2010.
5.6.
During the entrapment, X X X X arrived early. He was followed by X X X X and X X X X (director). The NBI agent arrived early and
stayed at a table near X X X X . X X X X arrived. Then, X X X X (treasurer) arrived later.
5.7.
X X X X alleged that X X X X told him that he had to pay the latter P438,000.00. He told X X X X he had no more money because he had previously
paid him P800,000.00. X X X X
asked his fellow directors X X X X and X X X X “how we will settle” the said amount. X X X X alleged that his fellow director X X X X was “forcing me to pay by myself only”.
X X X X rejected it because he had no
more money. X X X X alleged that X X X X “showed
me the gun he was carrying tucked on his waistline” and told him, “Babaunan nya ako ng bala sa ulo”.
Note that X X X X did not testify to corroborate the
foregoing “threat”.
Note that, as per X
X X X , X X X X did not pull out his
gun or placed on the table or performed any threatening act.
X X X X alleged that X X X X “showed
his gun tucked on his
waistline”. X X X X did not offer proofs
as to the details thereof (“showed his gun”).
Note that in
the testimony of second prosecution witness X X X X , infra, no offer was made
that X X X X threatened or coerced X X X
X or pulled out his gun or pointed his
gun at X X X X . See Part A-2, Paragraphs
13, et. seq., infra.
5.8.
X X X X gave the marked money to X X X X . He removed
his eyeglass as a signal to the NBI. The
NBI arrested accused X X X X , X X X X (director), AND X X X X (director).
5.9.
The three were arrested and brought to and
interrogated at the NBI Manila. A Cal.
45 was recovered “from the
waist” of X X X X , as per X X X X .
Note that X X X
X did not testify that X X X X pulled out his gun or pointed it to him.
Note that X X X
X did not explain why X X X X alone was referred by the NBI to the
Office of the City Prosecutor of Xxx City to be indicted via inquest and why X
X X X was freed by the NBI while X X X X
was freed after six days of detention.
6. Testimony of X X X X Given on September 5, 2012. (Cross examination
by Atty. xxx , counsel for accused X X X X ). - – The testimony of X X X X given on September 5, 2012 basically shows
that:
6.1.
Many meetings were held by the X X X X directors and X X X X (with X X X X ) to negotiate the subject loan
from X X X X and his principal in
SINGAPORE.
6.2.
The directors (X X X X , X X X X AND X X X X ) with X X X X and X X X X (a friend of X X X X and who appeared to be the “loan arranger/consultant’,
as per X X X X ) all signed the loan agreement and the chattel mortgage of the
car of X X X X .
Six persons were present during
the signing of the loan agreement: X X X X (president), accused X X X X (vice president), X X X X (treasurer), X X X X (director), accused X X X X and X X X X (loan arranger [?]). All were signatories to
the documents.
6.3.
The chattel mortgagor was X X X X (whose car was the security). The mortgagees,
as per the documents, were X X X X and X
X X X . He did not explain the legal basis why X X X X became a mortgagee.
6.4.
After signing the documents on February 12, 2010, X X X X (as president of debtor X X X X ) received the
P1,000,000.00 in cash from X X X X and X X X X . Then, he released P100,000.00 to X X X X as commission.
6.5.
Note
that during this cross examination on this particular date nothing was offered by
X X X X showing the alleged criminal
guilt of accused X X X X .
7. Testimony of X X X X Given on December 12, 2012. (Continuation of
cross-examination by Atty. X X X X ). – The testimony of X X X X given on December 12, 2012 basically shows
that:
7.1.
X X X X alleged that the incident at the restaurant-bar
Della Baia on Macapagal Ave. in Xxx City
took place on April 30, 2010 from
7:00 PM to 12:00 Midnight/AM the next day (a five-hour event).
7.2.
On the said date, place and time X X X X was with accused X X X X , COL. Xxx, COL. Xxx and
accused X X X X .
X X X X went there with accused X X X X . X X X X arrived after two hours. As a bar, it was
dimly lighted. It had many tables. It
was as big as the courtroom. There was one security guard at the gate.
There were many waiters.
That was the date, time and place where X X X X paid X X X X the amount of P300,000.00 allegedly
from his own money, covered by a voucher
which was signed by X X X X .
7.3.
X X X X cannot recall if he met accused X X X X on May
15, 2010. X X X X issued the P500,000.00
check payment to X X X X . He gave
the check to X X X X for delivery to X X
X X . X X X X did not meet X X X
X on May 15, 2010.
Nothing happened on May 15, 2010 except that he gave the check to X
X X X for delivery to X X X X , as per X
X X X .
It appears no personal meeting took place between X X X X and X X X X on May 15, 2010.
8. Testimony of X X X X Given on February 18, 2013. (Continuation of cross examination of X X X
X by Atty. X X X X ). – The
testimony of X X X X given on February
18, 2013 basically shows that:
8.1.
X X X X alleged that on April 30, 2010 from 7:00 PM to 12:00 Midnight of the next day at
Della Baia Restaurant both accused X X X X and X X X X told him, “Kung
di mo babayran may paglalagyan ka.” He
alleged that both accused said “something like that” and “magkasunod.”
He and accused X X X X arrived there between 6:00 PM to 7:00 PM in
two separate cars in a convoy.
X X X X alleged that the two accused were always
calling him to collect, thus, in the morning of said date, he withdrew
P300,000.00 to pay X X X X in the
evening of said date at the said venue.
X X X X , X X X X and X X X X were sitting on one table. On the next table,
their friends were sitting (referring to xxx and xxx, supra, and the driver of
accused X X X X ). They were with the two colonels because every Friday the two
colonels and accused X X X X had a
get-together at the venue. The two colonels were friends of accused X X X X .
The distance between the two tables was five meters. The sequence of the
arrival of the personalities was as follows: first, the two colonels; second, X
X X X and accused X X X X ; third, the
accused X X X X .
8.2.
X X X X alleged that after he paid P300,000.00 to X X X X , the latter “pulled out his gun” (this time a .22 Cal gun, not a Cal. .45 gun as he had
previously alleged).
He claimed that the colonels, sitting nearby, did not know what was happening.
He alleged that, prior to that
date, “every day I (was) being
threatened” by the two accused
to pay.
X X X X did not offer any
concrete details and positive proofs of the alleged “daily threats”.
9. Testimony of X X X X Given on July 15, 2013. (Cross examination by Atty. xxx, former counsel
for accused X X X X ).– The testimony of X X X X given on July 15, 2013 basically shows that:
9.1.
X X X X alleged that accused X X X X and X X X X arranged a meeting with him on April 30, 2010 at Delia Baia on Macapagal
Ave., Xxx City (the subject of the grave coercion case). X X X X had been there many times. He had met the two
colonels there many times. X X X X , X X X X and the two colonels met there every Friday as
a get-together. X X X X arrived there
with accused X X X X and his driver xxx, with the two
colonels (riding in X X X X ’s car), drove to the venue in a convoy. X X X X had a driver. After two hours, X X X X arrived.
As per X X X X , they were all occupying ONE TABLE (contrary to the
earlier statement of X X X X that the two
colonels occupied a separate table, five meters away). They are all
having a “kwentuhan” on one table. The others were drinking beer. He was
drinking pineapple juice.
9.2.
X X X X , in
a contradiction, this time alleged that the two colonels, et al were on a separate table when he paid X X X X the sum of P300,000.00 who thereafter
allegedly poked his gun at him.
9.3.
This time, X X X X claimed that the two accused X X X X and X X X X were with him on one table when that
happened.
9.4.
In
re: the second charge of grave coercion that allegedly happened on May 15,
2010, X X X X was not present during the
alleged incident. He merely gave the P500,000.00 check to xxx for delivery to X
X X X .
The P500,000.00 check was
given by X X X X to X X X X allegedly at “TRINOMA” (Quezon City, outside the jurisdiction of this Court).
X X X X alleged the P300,000 he paid X X X X on April 30, 2010 came from his own pocket
(from his joint xxx account with his wife).
9.5.
After
the April 30, 2010 incident, X X X X did
not talk with anybody about it (which was a strange behavior for a victim of an
alleged crime).
9.6.
X X X X affirmed that the gun of X X X X was a Cal.
22 handgun (not a Cal. 45 gun). Later, in the same testimony he changed it to Cal. 45 gun (this time,
referring to the NBI entrapment on July 8, 2010).
In fine, X X X X alleged that on April 30, 2010 the gun used by X X X X was a Cal.
22 and that during the entrapment on July
8, 2010 the gun used by X X X X was
a Cal. 45. A
glaring contradiction.
9.7.
During the NBI
entrapment on July 8, 2010, X X X X was at McDonald’s, Macapagal Ave., Xxx City
with X X X X , X X X X , X X X X , and a driver. Accused X X X X came late, he added. They occupied one table.
9.8.
X X X
X allegedly threatened X X X X on the same table in the presence of their
companions X X X X , X X X X , X X X X , and a Driver.
9.9.
X X X X allegedly asked for the July 8, 2010 meeting. X X X X stated that he coordinated with his directors to attend it.
10.
Testimony
of X X X X Given on February 19, 2014.
(Continuation of cross examination of X
X X X by Atty. X X X X , new counsel for
accused X X X X ). – The testimony of X X X X given on February 19, 2014 basically shows
that:
10.1. From
July16, 2013 (last date of testimony of X X X X ) up to February 19, 2014 (his
current testimony date then), or a period of seven months, X X X X failed (“forgot” was the
word used by X X X X , citing his hypertension) to write the xxx branch manager
to issue a certified copy of his alleged withdrawal slip showing the alleged
withdrawal from his personal account of the amount of P300,000.00 that he paid to X X X X .
10.2. X
X X X promised to submit the next
hearing authentic proofs issued by the branch manager showing his alleged
withdrawal of P300,000.00 and
P500,000.00 from his personal
account to pay X X X X .
10.3. He alleged that he had called many
board/management meetings to discuss the P1,000,000.00
loan of X X X X from X X X X but he could not recall if minutes thereof
were recorded.
10.4. He promised to produce the minutes and
other corporate records. This promise
was not performed by X X X X until the
prosecution rested its case.
(The counsel for X X X X intended to use them as exculpatory proofs in
favor of X X X X ).
Note that X X X X , in failing to present the same despite a promise
in open court, can be presumed to have intentionally hidden the same because,
if presented, they would be adverse to his claim of criminal guilt on the part
of accused X X X X .
10.5. X X X X did not even know the last name of his
Corporate Secretary (xxx), a strange behavior on the part of a company
president. He had to be assisted by his own records.
10.6. X X X X could not offer proofs of any board resolution
or formal communication issued by him, as president, showing that official
corporate efforts were made by X X X X to settle and perform their unpaid loan
obligation to X X X X .
11. Testimony of X X X X Given on June 23, 2014. (Continuation
of cross examination of X X X X by Atty.
xxx). – The testimony of X X X X given on June 23, 2014 basically shows that:
11.1. X
X X X failed to present authenticated
withdrawals slip of his bank proving his alleged withdrawal of P800,000.00 (in two tranches, i.e.,
P300,000.00 on April 30, 2010 and P500,000.00 on May 15, 2010) that he had
paid X X X X allegedly using his own
money. But he presented a bank statement.
11.2. From 2010 to 2014 (when he testified on
cross), or for four long years, X X X X did not issue a demand letter to the board of X
X X X to reimburse him the total of
P800,000.00 that he had paid to X X X X allegedly out of his “own money”. A strange
behavior for a businessman who must recover his own losses.
11.3. X X X X likewise did not ask a lawyer to serve such a
demand letter to the directors of X X X X .
11.4. X
X X X failed to perform his promise to
the Court to bring the corporate records of the P1,000,000.00 loan of X X X X to X X X X and its records of payments, etc.
11.5. After four long years, i.e., 2010 to
2014, X X X X had not taken legal
actions to compel the X X X X directors
to reimburse him the P800,000.00 from his “own pocket” that had paid to X X X X
. His excuse was “nagkakagulo na”.
11.6. X X X X had not commenced an action with the
Securities and Exchange Commission (SEC) to liquidate X X X X (“inactive” corporation) to recover from its
assets, if any, the amount of P800,000.00 that he had paid X X X X allegedly out of his own pocket.
11.7. As
to the alleged incident on April 30,
2010 for grave coercion, as per X X X X ,
he met X X X X at the site (Delia Baia Restaurant) at 8:30 PM to 9:00
PM. X X X X arrived at 7:00 PM with X
X X X “and friends” (two colonels, a
driver, and another unknown person). X X X X , X X X X , and X X X X talked. After thirty minutes, they moved to
separate table, away from the two colonels, by five meters. This time, X X X X claimed the venue was twice as big as the
courtroom (contrary to his past testimony that it was as big as the
courtroom).
11.8. X
X X X said the two colonels were
retired. He did not know if they were carrying guns.
11.9. X
X X X alleged that X X X X put his gun on the table to coerce him “to pay
another P500,000.00.”
11.10. X X X X claimed after paying X X X X P300,000.00,
he left because he was allegedly afraid.
Note that in a past testimony,
X X X X claimed that he stayed at the
venue with the accused and the two colonels until 12:00 Midnight the next day.
If he was afraid, why did he spend five hours up to midnight to be
with the accused X X X X and X X X X ?
11.11.X X X X admitted that he did
not report (or cause to be recorded/blottered) the April 30, 2010 grave
coercion incident with, to or in any of the following persons, officers,
agencies, or offices on the same date or the next day or at any reasonable date
thereafter:
(a)
The two colonels present;
(b)
The security guard of the
venue. He did not ask the guard to record the incident his logbook;
(c)
The management of the venue.
He did not ask the management to give him a copy of the CCTV video of the
incident;
(d)
The local barangay with
jurisdiction over the venue;
(e)
The local police station of Xxx City with jurisdiction over the venue;
(f)
Any law enforcement agency.
11.12. X X X X admitted that he reported X X X X and X X X X to the NBI only after two months for purposes
of the July 8, 2010 entrapment.
11.13. X X X X claimed that X X X X and X X X X “conspired” with X X X X to “force” him to pay X X X X because X X X X and X X X X were telling him to pay X X X X his unpaid loan of P1,000,000.00 to X X X X .
11.14. Other that his bare allegation, X X X X offered no proofs to prove the alleged
“conspiracy” and “force” exerted upon his person by X X X X and X X X X to benefit X X X X other than the following acts: (a) Going to
his home to collect; (b) Calling his phone to collect; (c) “threatening” his
family (without offering the concrete details and proofs thereof); (d) texting
him daily to collect; (e) and the like.
11.15. X X
X X claimed that the accused X X X X and X X X X as
well as X X X X “banged his gate”
but it is not alleged in the formal Information and the documentary bases
thereof. The same thing with the following allegations: “following him”, “carrying guns”, “creating
commotions in the neighborhood”, “threatening his children” --- all of
which are not alleged in the
Information and its documentary basis.
11.16. X X X X did not report/blotter in his local barangay
or in his local police station in xxx City the alleged act of “banging the
gate” of his house, “threatening his family”, or “threatening visit” to his
house. They do not appear as allegations in the Informations of the instant
cases.
11.17. X X X X admitted he did not report to the NBI the April 30, 2010 incident and the May 15,
2010 incident which are the subject matters of the instant cases. He
claimed the excuse of fear for such inaction.
It took him two months to do so (which led to the NBI entrapment on
July 8, 2010). He admitted he reported to the NBI only on June 25 to 28, 2010.
11.18. X X
X X did not report to the police the April 30, 2010 (when P300,000.00 was paid to X X X X ). He
freely paid a P500,000.00 check to X
X X X on May 15, 2010 without seeking police assistance. His excuse was
“fear”. Other th this bare
allegation, no concrete proofs exist to prove the same.
12.Testimony of X X X X Given on February 11, 2015. (Continuation of cross examination of X X X
X by Atty. xxx). – The testimony of X
X X X given on February 11, 2015 basically
shows that:
12.1. X X X X , on cross examination, admitted
that the Information for grave coercion (Criminal Case No. M-PSY-X X X X ),
does not contain an
allegation that X X X X told
him to pay P500,000.00 on May 15, 2010 or else “(his) life would be at stake”.
12.2. As
in the case of the grave threat charge
that allegedly happened on May 15, 2010
at TRINOMA, Quezon City, covered by Criminal
Case No. M-PSY-10-12415-CR (which
is clearly outside the jurisdiction of this Court), X X X X admitted, in re: the case of grave coercion on
April 30, 2010 (Criminal Case No.
M-PSY-X X X X ), that he did not
report the grave coercion incident to
·
the local Barangay,
·
the local Police,
·
the security guard at the
restaurant,
·
the management of the
restaurant,
·
or any law enforcement
agency (NBI, et al)
·
nor did he ask the
management of the venue to give him a copy of the CCTV video of the incident,
if any,
·
nor did he seek the help of
the two colonels who were with them at that time.
12.3. X
X X X stated that he reported to the NBI
after “two weeks”, contrary to his past testimony that he reported the matter
only after “two months” (which led to the NBI entrapment on July 8, 2010).
12.4. X
X X X admitted that the words “Putang ina magbayad ka ng utang mo kung
hindi itutumba kita. Madami na akong itinumba sa Laguna at isusunod kita”
were not spoken to him by X X X X on May 15, 2010.
12.5. But
X X X X admitted he was not present
during the May 15, 2010 incident because
he merely P500,000.00 to X X X X thru X
X X X . He alleged that X X X X said
those words via phone call – which
is not alleged in the Information and is in fact contrary to the allegation in
the Information that those words were spoken by X X X X in person frontally in the presence of X X X X
.
Note that, in a past testimony, X X X X stated that the May 15, 2010 incident happened
in TRINOMA, which is in Quezon City, outside the jurisdiction of this Court.
12.6. X
X X X this time alleged that he did not know where X X X X paid the P500,000.00 check to X X X X , contrary
to his past testimony that it happened at TRINOMA, Quezon City. He was not sure whether is happened in Xxx
City, contrary to the allegation in the Information.
12.7. X
X X X further confused the facts by
stating that the threatening words were spoken to him “by telephone….at McDonald’s” on “July 8, 2010 when he (X X X X )
was arrested” by the NBI in an entrapment. (TSN, Feb. 11, 2015, p.16).
Then, when asked by the Court, X X X X changed track and said that X X X X spoke those words by phone before
May 15, 2010 when he (X X X X ) was outside his house and
at McDonald’s on May 15, 2010 in the presence of X X X X , X X X X and his driver. When asked when the
grave coercion happened, again X X X X changed track (Id., p. 18) and said that is
happened on July 8, 2010 (NBI
entrapment, which is not the subject matter of the instant cases).
12.8. X
X X X confirmed no grave coercion incident that happened in person on May 15, 2010 (Id.) but only “by phone” before such date. This
time he changed track again. When
asked about the phone numbers used to send and to receive the threatening
words, he said he forgot the numbers (even his own phone number!).
12.9. X
X X X did not see a lawyer to issue a
cease and desist demand letter to X X X X . He instead went to the INBI. That
was on June 25 to 28, 2010.
12.10.
Note that X X X X did not present X X X X to corroborate his testimonies.
12.11. X X X X admitted that when X X X X gave his check of P500,000.00 to X X X X , X
X X X reported to him that his meeting with X X X X was civil, respectful and non-violent. The X X X X report was oral, not written.
12.12.
X X X X admitted the contradiction
between his testimony and his Affidavit,
dated June 28, 2010, that he filed in the NBI. Paragraph 10 thereof intentionally and misleadingly made it appear
that the May 15, 2010 incident happened in person between him and X X X X . He
did not mention that it did not happen
in person between them because the truth was that he merely sent his P500,000.00 check payment to X X X X via HIS man X X X X on May 15, 2010.
12.13.Note
that X X X X denied his business
relationship with X X X X . He said X X X X was not his friend but a friend of X X X X . Yet X X X X admitted that he entrusted the huge
P500,000.00 check to X X X X , who was “not a friend”, for delivery to X X X X .
Note, too, that X X X X did not present X
X X X to corroborate his testimonies.
12.14.
X X X X admitted that the May 15, 2010 incident between him and X
X X X actually did no happen at
McDonald’s and that what happened at McDonald’s was the July 8, 2010 NBI
entrapment which is not a subject matter in the instant cases.
12.15. X X X X affirmed (Id., page 25) that the May 15, 2010 incident did not happen
in person between him and X X X X at McDonald’s --- but only “by phone”.
He was not in Xxx City (this Court’s jurisdiction) when he received
an alleged allegedly threatening phone call from X X X X on May 15, 2010.
12.16.
X X X X admitted that the alleged
incident on June 14, 2010 at his house when
X X X X , X X X X , “John Doe”, and
Police Officer xxx was never
reported by him to the local Barangay nor
did he file a criminal
complaint in the local Police Station or in the Office of the City Prosecutor
of xxx City.
He admitted that the NBI did not file a criminal case against X X X
X based on the alleged June 14, 2010
incident (which, incidentally, is not a subject matter of the instant cases).
12.17. Note that no NBI agent testified to
corroborate X X X X ’s testimonies.
A.2. TESTIMONY OF
SECOND PROSECUTION WITNESS X X X X GIVEN
ON DECEMBER 9, 2015.
13.
The testimony of X X X X given on
December 9, 2015 basically shows that:
13.1. X
X X X stated that sometime in July 2010 (he later stated in was on the 8th day) a meeting was
held among himself, X X X X , X X X X , and X X X X . X X X X arrived late by thirty minutes. The meeting
started around 3:00 PM. The venue was McDonald’s,
Macapagal Ace., Xxx City.
When X X X X arrived late at the meeting, he heard them
discussing the arrangement for the payment of the loan extended by X X X X .
He stated that X X X X “THREATENED” X X X X .
It was not X X X X that
issued a threat to X X X X .
When asked to be specific, X X
X X said he “could not recall” if X X X
X actually threatened X X X X during the meeting -- an evasive answer.
They were all seated on one
table. He sat beside X X X X .
13.2. X X X X stated that X X X X (not X X X X ) threatened X X X X in a loud voice: “Akala ko matagal ka na sa mining. Saan ang alam mo, sa Zambales lang
ang alam mo. Gago ka pala!”
X X X X urged X X X X not to talk that way to X X X X . He told the
group to talk calmly.
13.3. Then, X X X X stood up and handed X X X X a sum of money inside an envelope. X X X X did not know why X X X X gave X X X X the money.
13.4. X X X X stated that no exchange of words took place
between X X X X and X X X X . X X X X just handed the envelope to X X X X and then he walked away.
Then, X X X X told the rest of the group to eat the meals
already on the table. The atmosphere was friendly, quiet and non-violent.
When specifically asked if he saw X X X X pull out a gun, X X X X evasively stated he “could not remember” – an
impossible statement because a crime is not forgotten easily especially if
committed in front of a group where one is present.
At any rate, X X X X did not
categorically state that X X X X pulled
out a gun.
X X X X affirmed that he did
not see X X X X pull out a gun and
banged it on the table.
He stated that they had not
yet eaten when the NBI agents arrested them. The commotion came from the agents, not from X X X X or any one from their group, which was then eating
peacefully.
X X X X was handcuffed by the agents. He stayed at the
NBI for five hours for an interrogation.
He stated that he had no prior
knowledge of the NBI entrapment that day.
Note that the testimony of X X X X referred only to the July 8, 2010 incident
subject matter of Crim. Case No. M-PSY-xxx-CR for alleged grave threat
against X X X X .
13.5. X X X X confirmed that he had no knowledge of the
incidents that allegedly happened on April 30, 2010 and May 15, 2010 covered
by Crim. Case Nos. M-PSY-X X X X -CR and
X X X X -CR.
13.6. In closing, he testified that he did not
hear X X X X issue violent threats
against X X X X and/or pull out a gun
and banged it on the table during the July 8, 2010 meeting at McDonald’s.
13.7. He stated that he did not see X X X X conspire with X X X X to threaten X X X X during the said meeting and that he did not
see X X X X on April 30, 2010.
B.
PROSECUTION
EXHIBITS.
14. The exhibits for the
prosecution consisted of corporate or business records of X X X X and the self-serving affidavits of X X X X ,
et al., and other similar documents.
15. Of
the many affiants in the exhibits, only X X X X and X X X X testified. The NBI agents did not testify, as
earlier stated.
C.
THE
PROSECUTION EXHIBITS WERE ADMITTED ONLY AS TO THEIR “EXISTENCE”, NOT AS
TO THE PURPOSES FOR WHICH THEY WERE BEING OFFERED.
16.The
ORDER,
dated November 9, 2016, of the Court admitted in evidence the exhibits
of the prosecution only as to the EXISTENCE
thereof BUT NOT AS TO THE PURPOSES FOR WHICH THEY WERE BEING OFFERED.
The Court admitted them ONLY AS PART OF THE TESTIMONIES OF THE PROSECUTION WITNESSES
(that is, those witnesses who actually testified and were subjected to
cross-examination) for being RELEVANT documents as to their EXISTENCE ONLY.
17. For
reference, the accused hereby quotes in full hereinbelow his “COMMENT (To: PROSECUTION’S “FORMAL OFFER
OF DOCUMENTARY EXHIBITS”)”, dated November 3, 2016, to stress his assertion
of the inadmissibility of the exhibits of the prosecution and the purposes for
which they were being offered, to wit:
“x
x x.
I.
X x x.
1.
Xxx.
2.
Xxx
3.
Xxx
4.
Xxx
5.
Xxx
6.
Xxx.
II.
COMMENT PROPER
7.
Re: Exhibit “A”,
with submarkings, of the Offer, the accused X X X X objects to Purposes of the Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, and that the same are not supported
by the evidence on record.
7.1.
To stress:
Allegations in a Complaint are not evidence per
se. There is no proof of harassment, threat and coercion extant in the said
exhibit other than the bare allegation of the private complainant.
8.
Re: Exhibit “B”,
with submarkings, of the Offer, the accused X X X X objects to the Purposes of the Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, and that the same are not supported
by the evidence on record.
8.1.
To stress:
Allegations in a Salaysay are not evidence per
se. There is no proof of harassment, threat and coercion extant in the said
exhibit other than the bare allegation of the private complainant, showing that
the accused X X X X made threatening
calls to and poked a gun at the private complainant.
8.2.
Neither is such
an allegation (conclusion of law) a proof of the presence of conspiracy between
the two accused X X X X and X X X X .
8.3.
The exhibit was
marked as PROVISIONAL only. There is no
proof that the original was offered to the Court for the record.
9.
Re: Exhibit “C”,
with submarkings, of the Offer, the accused X X X X objects to the Purposes of the Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, and that the same are not supported
by the evidence on record.
9.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
9.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the private complainant, showing that the accused X X X X poked a gun at the private complainant or that
the two accused X X X X and X X X X had conspired.
9.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court, Branch xxx, of Xxx City, under Hon.
Judge xxx, ACQUITTED the accused X X X X of illegal possession of firearms filed by the
NBI against the accused X X X X , per its AMENDED DECISION, dated January 21,
2016 which in due time shall be presented in evidence by the accused X X X X .
10.
Re: Exhibit “D”,
with submarkings, of the Offer, the accused X X X X objects to the Purpose of the Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, and that the same are not supported
by the evidence on record.
10.1.
To stress: Allegations
in a Salaysay are not evidence per se.
10.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused X X X X banged loudly on the gate of the home of the
private complainant, that the accused X X X X poked a gun at the private complainant and
that the two accused X X X X and X X X X
had conspired.
10.3.
The affiant IRENE
X X X X did not personally testify
before the Court to affirm her subject Affidavit, dated June 28, 2010, and she
was not subjected to cross examination by the two defense counsel, thus, the
said exhibit is HEARSAY under the Rules of Evidence and violates the
constitutional right of confrontation/cross examination of the accused X X X X .
11.
Re: Exhibit “E”, with submarkings, of the
Offer, the accused X X X X objects to
the Purposes of the Offer, for the reason that the said statements or
allegations of purposes are self-serving, that the same are mere conclusions of
law, and that the same are not supported by the evidence on record.
11.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
11.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused X X X X threatened the life of the private complainant
and his family, that the private complainant did not freely mortgaged his car
to the accused X X X X , and that the accused X X X X issued the threatening words quoted in the said
Salaysay.
11.3.
The exhibit was
marked as PROVISIONAL only. There is no
proof that the original was offered to the Court for the record.
12.
Re: Exhibit “F”, with submarkings, of the
Offer, the accused X X X X objects to
the Purposes of the Offer, for the reason that the said statements or
allegations of purposes are self-serving, that the same are mere conclusions of
law, and that the same are not supported by the evidence on record.
12.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
12.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused X X X X made threatening phone calls to the private
complainant, that the accused X X X X poked a gun at the private complainant, and
that the two accused X X X X and X X X X
had conspired.
12.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court, Branch X X X X , of Xxx City, under
Hon. Judge X X X X , ACQUITTED the accused X X X X of illegal possession of firearms filed by the
NBI against the accused X X X X , per its AMENDED DECISION, dated January 21,
2016 which in due time shall be presented in evidence by the accused X X X X .
12.4.
The affiant xxx did
not personally testify before the Court to affirm his subject Affidavit, dated
July 8, 2010, and he was not subjected to cross examination by the two defense
counsel, thus, the said exhibit is HEARSAY under the Rules of Evidence and
violates the constitutional right of confrontation/cross examination of the two
accused.
12.5.
The exhibit was
marked as PROVISIONAL only. There is no
proof that the original was offered to the Court for the record.
13.
Re: Exhibit “G”, with submarkings, of the
Offer, the accused X X X X objects to
the Purposes of the Offer, for the reason that the said statements or
allegations of purposes are self-serving, that the same are mere conclusions of
law, and that the same are not supported by the evidence on record.
13.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
13.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant thereof, showing that the accused X X X X made threatening phone calls to the private
complainant, that the accused X X X X poked a gun at the private complainant, and
that the two accused X X X X and X X X X
had conspired.
13.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court, Branch X X X X , of Xxx City, under
Hon. Judge xxx, ACQUITTED the accused X X X X of illegal possession of firearms filed by the
NBI against the accused X X X X , per its AMENDED DECISION, dated January 21,
2016 which in due time shall be presented in evidence by the accused X X X X .
13.4.
The three
affiants, who are NBI agents, namely, xxx x xxx xxxx xxxx, did not personally
testify before the Court to affirm their subject Joint Affidavit, dated July 8,
2010, and they were not subjected to cross examination by the two defense
counsel, thus, the said exhibit is HEARSAY under the Rules of Evidence and
violates the constitutional right of confrontation/cross examination of the two
accused.
14.
Re: Exhibit “H”, with submarkings, of the
Offer, the accused X X X X objects to
the Purposes of the Offer, for the reason that the said statements or
allegations of purposes are self-serving, that the same are mere conclusions of
law, and that the same are not supported by the evidence on record.
14.1.
To stress:
Allegations in a Salaysay are not evidence per
se.
14.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiants thereof or that the accused X X X X poked a gun
on the private complainant.
14.3.
As to the
entrapment conducted by the National Bureau of Investigation (NBI), it should
be noted that the Regional Trial Court, Branch xxx, of Xxx City, under Hon.
Judge xxx, ACQUITTED the accused X X X X of illegal possession of firearms filed by the
NBI against the accused X X X X , per its AMENDED DECISION, dated January 21,
2016 which in due time shall be presented in evidence by the accused X X X X .
14.4.
The affiant, who
an NBI agent, namely, xxx, did not personally testify before the Court to
affirm their subject Joint Affidavit, dated July 8, 2010, and he was not
subjected to cross examination by the two defense counsel, thus, the said
exhibit is HEARSAY under the Rules of Evidence and violates the constitutional
right of confrontation/cross examination of the two accused.
15.
Re: Exhibit “I”, with submarkings, of the
Offer, the accused X X X X objects to
the Purposes of the Offer, for the reason that the said statements or
allegations of purposes are self-serving, that the same are mere conclusions of
law, and that the same are not supported by the evidence on record.
15.1.
To stress:
Allegations in the Memorandum of Agreement, dated February 16, 2010, are not
evidence per se of threat and
coercion. It is merely an evidence of a business transaction.
15.2.
There is no proof
of harassment, threat and coercion extant in the said exhibit other than the
bare allegation of the affiant-private complainant. There is no proof that the
private complainant was forced to sign the MOA and to mortgage his car or that
he was forced, threatened and coerced by the accused X X X X to pay the debt subject matter thereof. The MOA with a Deed of Chattel Mortgage
was a regular business loan transaction duly executed by the parties, including
the private complainant.
16.
Re: Exhibits “J”, “K”, and “L”, with
submarkings, of the Offer, which are Cash Vouchers and Bank Deposit Slips, the accused
X X X X objects to the purposes for
which they are being offered, for the reason that the said statements or
allegations of purposes are self-serving, that the same are mere conclusions of
law, that the same are not supported by the evidence on record, and that the
purposes stated are irrelevant and immaterial to the allegation of threat and
coercion allegedly committed by the accused X X X X .
16.1.
A voucher and a
bank deposit slip are not proofs of threat, coercion, harassment, and
compulsion. They are merely proofs of payment by the debtor and proofs of
receipt of such payment by the creditor.
17.
Re: Exhibits “M”, “O”, and “P”, with
submarkings, of the Offer, the accused X X X X objects to the Purposes of the Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, that the same are not supported by
the evidence on record, and that the alleged threat and coercion are not shown
in and by said documents.
17.1.
The author of Exh.
“P” (NBI transmittal letter to the Chief Prosecutor of Xxx City), i.e., NBI
Dep. Dir. xxx, was not presented in court to authenticate the said
document and he was not cross examined. He had no personal knowledge of the
crimes charged in the instant cases. He merely relied on the hearsay statement
of NBI agent Guevarra as part of his transmittal letter to the Chief Prosecutor
of Xxx City.
18.
Re: Exhibit “Q”,
with submarkings, of the Offer, the accused X X X X objects to the Purposes of th Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, that the same are not supported by
the evidence on record, that the
stated purposes are irrelevant and immaterial to the nature and contents of the
Certificate of Incorporation of the subject Corporation issued by the
Securities and Exchange Commission (SEC), and that the attached
document thereto, entitled “Extraction/Hustlings/Stockpiling/Hauling and
Loading Contract” is not part of the
said exhibit and was not issued by the SEC and was not marked as a submarkings
of the said exhibit. It was merely
inserted in the Offer for unfair reasons.
19.
Re: Exhibit “R” (Letter of Understanding),
with submarkings, of the Offer, the accused X X X X objects to Purposes of the Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, that the same are not supported by
the evidence on record, and, most of all, that the said exhibit does not prove
the crimes of threat and coercion, and that the said exhibit is simply a proof
of a regular business transaction.
19.1.
The said exhibit
is PROVISIONAL only. There is no proof that the original thereof had been
submitted to the court for the record. It is not the best evidence for the
purposes for which it is now being offered.
20.
Re: Exhibit “S”,
with submarkings, of the Offer, the accused X X X X objects to the Purpose of said Offer, for the
reason that the said statements or allegations of purposes do not prove the
crimes of threats and coercion. It merely proves probable cause (a duty of the Office of the Prosecutor to establish
after a preliminary investigation).
20.1.
Further, the said
exhibit is PROVISIONAL only. There is no proof that the original thereof had
been submitted to the court for the record. It is not the best evidence for the
purposes for which it is now being offered.
21.
Re: Exhibit “U”, ”V”, and “W”, with
submarkings, of the Offer, the accused X X X X objects to the Purposes of the Offer, for the
reason that the said statements or allegations of purposes are self-serving,
that the same are mere conclusions of law, that the same are not supported by
the evidence on record, and that the
subject matters of the said documents and contracts (are) extraneous,
irrelevant and immaterial to the crimes of threat and coercion charged in the
instant cases.
22.
Re: Exhibit “X”
(judicial affidavit of X X X X ), with submarkings, of the Offer, the accused X
X X X objects to the Purposes of the
Offer, for the reason that the said statements or allegations of purposes are
self-serving, that the same are mere conclusions of law, that the same are not
supported by the evidence on record, that the
same does not prove beyond reasonable doubt the crimes of threat and
coercion charged in the instant cases, and that it does not corroborate the
testimony of the private complainant as allege din the Purpose Column.
X x
x.”
III.
ISSUE.
18.The
sole issue in these consolidated
criminal cases is as follows:
Whether or not the Prosecution has proved beyond reasonable doubt the
guilt of the herein accused-movant ENGR. X X X X for the felonies of GRAVE THREAT and GRAVE
COERCION.
IV.
APPLICABLE
LAW.
19.The
complete provisions of the Revised Penal Code on the various kinds of the
felonies of Grave Threats and Grave
Coercions are covered by Article 282 to Article 289 thereof. The said
provisions are reproduced in full hereinbelow, for reference, to wit:
“x x x.
Section Three.
- Threats and Coercion.
Article 282. Grave
threats. -
Any person who shall threaten another with the infliction upon the person,
honor or property of the latter or of his family of any wrong amounting to a
crime, shall suffer:
1. The penalty next lower in degree than that
prescribed by law for the crime be threatened to commit, if the offender shall
have made the threat demanding money or imposing any other condition, even
though not unlawful, and said offender shall have attained his purpose. If the
offender shall not have attained his purpose, the penalty lower by two degrees
shall be imposed.
If the threat be made in writing or through a
middleman, the penalty shall be imposed in its maximum period.
2. The penalty of arresto mayor and a fine not
exceeding 500 pesos, if the threat shall not have been made subject to a
condition.
Article 283.
Light threats.
- Any threat to commit a wrong not constituting a crime, made in the manner
expressed in subdivision 1 of the next preceding article, shall be punished by
arresto mayor.
Article 284.
Bond for good behavior. - In all cases falling within the two next preceding articles, the
person making the threats may also be required to give bail not to molest the
person threatened, or if he shall fail to give such bail, he shall be sentenced
to destierro.
Article 285.
Other light threats. - The penalty of arresto menor in its minimum period or a fine not
exceeding 200 pesos shall be imposed upon:
1. Any person who, without being included in the
provisions of the next preceding article, shall threaten another with a weapon
or draw such weapon in a quarrel, unless it be in lawful self-defense.
2. Any person who, in the heat of anger, shall
orally threaten another with some harm not constituting a crime, and who by
subsequent acts show that he did not persist in the idea involved in his
threat, provided that the circumstances of the offense shall not bring it
within the provisions of Article 282 of this Code.
3. Any person who shall orally threaten to do
another any harm not constituting a felony.
Article 286. Grave coercions. - The penalty of arresto mayor and a fine not exceeding
500 pesos shall be imposed upon any person who, without authority of
law, shall, by means of violence, prevent another from doing
something not prohibited by law, or
compel him to do something against his will, whether it be right or wrong.
If the coercion be committed for the purpose of
compelling another to perform any religious act or to prevent him from so
doing, the penalty next higher in degree shall be imposed.
Article 287. Light coercions. - Any person who, by means of violence, shall seize anything belonging to his debtor
for the purpose of applying the same to the payment of the debt, shall
suffer the penalty of arresto mayor in its minimum period and a fine equivalent
to the value of the thing, but in no case less than 75 pesos.
Any other coercions or unjust vexations shall be
punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both.
Article 288.
Other similar coercions; (Compulsory purchase of merchandise and payment of
wages by means of tokens.) - The penalty of arresto mayor or a fine ranging from 200 to 500 pesos,
or both, shall be imposed upon any person, agent or officer, of any association
or corporation who shall force or compel, directly or indirectly, or shall
knowingly permit any laborer or employee employed by him or by such firm or
corporation to be forced or compelled, to purchase merchandise or commodities
of any kind.
The same penalties shall be imposed upon any person
who shall pay the wages due a laborer or employee employed by him, by means of
tokens or objects other than the legal tender currency of the laborer or
employee.
Article 289.
Formation, maintenance and prohibition of combination of capital or labor
through violence or threats. - The penalty of arresto mayor and a fine not
exceeding 300 pesos shall be imposed upon any person who, for the purpose of
organizing, maintaining or preventing coalitions or capital or labor, strike of
laborers or lock-out of employees, shall employ
violence or threats in such a degree as to compel or
force the laborers or employers in the free and legal exercise of their
industry or work, if the act shall not constitute a more serious offense in
accordance with the provisions of this Code.
X x x.”
20.
As to
the charge of Grave Threat, pursuant to Article 263 of the Penal Code, the
crime of Serious Physical Injury is
punishable by a penalty ranging from Arresto
Mayor to Prision Mayor, depending on the attending circumstances. Relating
Article 263 to Article 282 on the
felony of Grave Threat, the latter
article imposes the penalty “next lower
in degree than that prescribed by law for the crime (the offender) threatened
to commit”.
The felony of Grave Threat is committed by “(threatening)
another with the infliction upon the person, honor or property of the latter or
of his family of any wrong amounting to a crime”, such as “the threat (of) demanding
money or imposing any other condition, even though not unlawful, and said
offender shall have attained his purpose”.
21. As to elements of
and penalty for the felony of Grave Coercion, Article 286 provides that “the penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed
upon any person who, without authority of law, shall, by means of violence, prevent another from doing something
not prohibited by law, or compel him to do something against his
will, whether it be right or wrong”.
V.
APPLICABLE
JURISPRUDENCE.
22.
The accused X X X X humbly submits that THE PRESUMPTION OF INNOCENCE HAS NOT BEEN OVERTURNED.
Under the EQUIPOISE RULE, when there is equilibrium in the evidence
presented by both sides, the CONSTITUTIONAL PRESUMPTIOM OF INNOCENCE should
tilt the balance of the scale in favor of the acquittal of the accused, for, in
such a situation, the offense has not been proven beyond reasonable doubt,
which is the quantum of evidence required to convict an accused.
Suspicion alone is insufficient, the required quantum of evidence being
proof beyond reasonable doubt. [People
v. Gargar, 300 SCRA 542 (1998). [See also: En Banc, Justice Mendoza, THE PEOPLE
OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR.,
accused-appellant, G.R. No. 136267. July
10, 2001].
Only by proof beyond reasonable doubt, which requires moral certainty,
may the presumption of innocence be overcome (People vs. Custodio, 47 SCRA 289 [ 1972]).
Moral certainty has been defined as "a certainty that convinces and
satisfies the reason and conscience of those who are to act upon it" (People vs. Lavarias, 23 SCRA 1301 [1967]). Absent the moral certainty that
accused-appellant caused the death of the victim, acquittal perforce follows.
23.
The accused X X X X humbly submits that HIS GUILT HAS NOT BEEN PROVEN PROOF BEYOND REASONABLE DOUBT.
Proof beyond reasonable doubt is needed to overcome the presumption of
Innocence (People vs. Reyes, 60 SCRA 126 [1974]).
Accused-appellant’s guilt must be proved beyond reasonable doubt (People vs. Maliwanag, 58 SCRA 323 [ 1974]);
otherwise, the Court would be left without any other recourse but to rule for
acquittal.
Courts should be guided by the principle that it would be better to set
free ten men who might be probably guilty of the crime charged than to convict
one innocent man for a crime he did not commit. [En Banc, Melo, People v. Tagudar [G.R. No. 130588. June 8, 2000].
24.
The accused X X X X humbly invokes the doctrine of COMPASSIONATE
JUSTICE. The Accused is a family man, a professional Engineer, an
employee, a law-abiding citizen without any prior notorious criminal record or
conviction/s. He humbly invokes the sense of COMPASSIONATE JUSTICE of the Court
to revisit its Decision, in the interest of compassionate justice.
By analogy, the spirit of the ruling made by the Supreme Court in the
case cited below is instructive: PEOPLE
OF THE PHILIPPINES vs. CORDENCIO CHATTO alias "DENDEN," SATURNINO
DAGAYANON, AND SIX (6) OTHER JOHN DOES, CORDENCIO CHATTO, G.R. No. 102704,
March 10, 1993.
The Supreme Court held in that case that “it is a basic rule in our criminal
justice system that penal laws should be liberally construed in favor of the
offender”. The foregoing analogous
decision of the Supreme Court should be applied to the herein Accused in the
interest of compassionate natural justice and equity.
Another analogous case on the doctrine of compassionate justice
is: Pinero
etc. vs. NLRC, et. al., GR 149610, August 20, 2004, cited in J. Sison, “A Law
Each Day”, Philippine Star, October 14, 2004.
In that case, the Supreme Court held that “equity is justice outside the
law, being ethical rather than juridical and belonging to the sphere of morals
than of law”; that “it is grounded on the precepts of conscience and not on any
sanction of positive law”.
In that case, the worker had no
previous derogatory records (like the herein accused X X X X ). The Supreme
Court held that “weighed in the scales of justice, conscience and reason tip in
favor of granting financial assistance to support him in the twilight of his
life after long years of service; that “social and compassionate justice
dictate that Lino be awarded financial assistance; and that “indeed, equities
of this case should be accorded due weight because labor law determinations are
not only secundum rationem (according to
reason) but also secundum caritatem (according to charitable heart).”
VI.
CONCLUSION.
25.
Based on the summary of the testimonies of the
two prosecution witnesses, the crimes charged have not been proven BEYOND
REASONABLE DOUBT. Thus, the accused X X X X is entitled to an ACQUITTAL by way of demurrer
to evidence, in the interest of speedy and fair justice.
VII. X x x.
VIII.
PRAYER.
WHEREFORE, in the interest of justice, it is respectfully prayed
that this Demurrer to Evidence be ADMITTED and that the instant consolidated criminal
cases for Grave Threats and Grave Coercion against the herein accused X X X X be DISMISSED for failure of the prosecution to
prove his guilt beyond reasonable doubt.
Las Pinas City, December 5, 2016.
LASERNA
CUEVA-MERCADER
LAW OFFICES.
Counsel for Accused X X X X
X x x x
Cc:
OFFICE OF THE CITY PROSECUTOR
Hall of Justice
Xxx City Hall, xxx St.
Xxx City
(Personal
delivery)
[i] X X X X is a resident of “No. xxx, xxx Road, xxx City”, per the Information 9 Page 2).
[ii]
This should have been the second count considering the chronology of the two events subject
matters of these consolidated cases. The numbering of the docket numbers of the
two counts of grave coercion was not
chronological with respect to the two dates involved.
[iii] This should
have been the first count considering
the chronology of the two events
subject matters of these consolidated cases. The numbering of the docket
numbers of the two counts of grave coercion was not chronological with respect to the two dates involved.
