REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT11TH JUDICIAL REGIONBRANCH 20 DIGOS CITY, DAVAO DEL SUR

PEOPLE OF THE PHILIPPINES,Plaintiff,

versus Crim. Case No. 101001-2015For: KIDNAPPING FOR RANSOM WITH MURDER

URIEL PIETER PABALAN,Accused.x ----------------------------------------------- x

DEMURRER TO EVIDENCE

The Accused URIEL PIETER PABALAN, through the undersigned counsel, most respectfully submits its Demurrer to Evidence and avers:

BASIS FOR THE DEMURRER

It is incumbent upon the prosecution to adduce evidence sufficient to prove beyond reasonable doubt (a) the commission of the crime, and (b) the precise degree of participation therein by the accused (Gutib vs. Court of Appeals, 312 SCRA 365). The charges against an accused must be dismissed if there is no competent or sufficient evidence adduced that would sustain the charges against him, should the same be raised in a demurrer to the evidence. Section 23, Rule 119 of the Revised Rules of Criminal Procedure provides:Sec. 23 After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.x x xIt is well-settled rule that conviction for a criminal offense should be based on clear and positive evidence and not on mere assumption. (Gaerlan vs. CA 179 SCRA 20). The burden lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt rather that upon the accused to prove that he is in fact innocent. (People vs. Lati, 184 SCRA 336). Failing in this, the presumption of innocence will prevail. (Sec. 1 (a) Rule 115).

ARGUMENTS/DISCUSSION

The witnesses presented by the prosecution failed to sufficiently prove in court that: (1) there was unlawful restraint of freedom against Ms. VIRGINIA ABIL, and (2) no evidence was presented by the prosecution to positively identify Mr. Pabalan as the one responsible for the death of Ms. Abil, other than the self-serving testimony of Traffic Enforcer Mikaelo Florentino.The witnesses presented by the prosecution namely, Marx Yap and Joseph Madriaga did not allege and failed to prove that there was unlawful restraint of freedom against Ms. Abil. As a matter of fact, there testimonies only falls squarely on the alleged waiting of a certain person to deliver the money. Nothing was ever shown that there was no freedom of actions. What is more dubious is that if indeed there was kidnapping, Mr. Yap and Mr. Madriaga have passed several Police Headquarters and Checkpoints which could have easily helped them, but they deliberately did not seek any help and assistance from the Police. It can also be noted that both of their testimonies are extremely contradictory and inconsistent, sufficient to doubt their credibility. Mr. Yap mentioned that he dropped them at Felcris Toril, while Mr. Madriaga claims that they flagged him at St. Peters Toril. Such inconsistency is grave as it refers to distance which is relatively far when traversed through walking. If indeed the allegaions were true, help could have been easily obtained as Toril is a crowded place. Furthermore, there were no witnesses who could possibly testify with the alleged ransom, other than the self-serving and speculative testimonies of Ms. Babor. Just because Ms. Abil was uneasy during the phone conversation with Ms. Babor would it translate to the former having been kidnapped. In other words, the element of kidnapping was not sufficiently proved and that there was no witness at all who had seen the alleged taking, murder and carrying away of the cash money. Moreover, no evidence was presented in court other than the self-serving testimonies of the witnesses. Noteworthy is the fact that the husband of the victim did not testify to corroborate his complaint-affidavit. Hence, the basis of the complainant in charging the accused for kidnapping for ransom with murder is not substantiated considering that it is purely speculative and have no probative value whether objected to or not. In addition, the whole complaint stemmed from the phone call made by Mr. Yap to Mr. Abil, which without a doubt holds no water. Considering that during the entire time, based on the affidavits of the witnesses, Ms. Abil had complete and absolute access with her phone. If indeed the allegations were true, it should have been her who contacted Mr. Abil. In criminal cases the accused shall enjoy the right of being confronted with the witnesses testifying against him and to cross-examine them. Moreover the court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who supposedly made them (20 Am. Jur. 400-401; cited at 7-1, Francisco, Revised Rules of Court, 1973 ed., p. 437). People vs. MeloSantos, 245 SCRA 569, July 3, 1995.

P R A Y E R

WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court that this Demurrer to Evidence be granted and that the criminal charge of Kidnapping for Ransom with Murder against the accused URIEL PIETER PABALAN be DISMISSED.

Other reliefs, just and equitable, are likewise prayed for.Digos City, Davao del Sur, Philippines, May 6, 2015.

DEPARTMENT OF JUSTICE Public Attorneys OfficeHall of Justice, Digos City.

By: ATTY. JAY ALBERT UY Public Attorney II

NOTICE OF HEARING Hon. Armelen CasalanAssistant City Prosecutor

Clerk of CourtRTC 20

Greetings!

Please submit the foregoing Demurrer to Evidence for the approval and consideration of the Honorable Court on 5 May 2015 at 8:30 a.m.

JAY ALBERT UY

Copy Furnished:

Hon. Armelen CasalanAssistant City Prosecutor

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