Beruflich Dokumente
Kultur Dokumente
SUPREME COURT
Manila
- versus-
MEMORANDUM
(For the Prosecution)
PREFATORY STATEMENT
It has been said that the greatest loss a human being can
experience is the loss of a child, and the most intense grief known is
that of a grieving mother.
This loss is made even more tragic when attended with such
violence and senselessness, that closure for such death cannot
immediately be achieved.
The only consolation that a grieving family can hold in their hearts
the fervent wish that their painful yearnings for justice will eventually
be satiated by the conviction, and consequent incarceration, of the one
truly responsible death of their loved one. (No citation, needs
jurisprudence)
STATEMENT OF THE CASE
STATEMENT OF FACTS
On the 20th day of isolation, the miners asked the rescuers how
long will they be saved. Gerald, in behalf of the miners, asked by radio
the members of the rescue team if they would be able to survive if they
consumed they flesh of one of them.
On the 23rd day, it was learned by the rescue team that Barreto had
been killed and brutally cannibalized by his companions.
ISSUES
xxx xxx”
The elements of Murder are (1) that a person was killed, (2) that
the accused killed him, (3) that the killing was attended by any of the
qualifying circumstances mentioned in article 248 of the Revised Penal
Code, and (4) that the killing is not parricide or infanticide.
They also testified that accused herein fled from his residence, and
was nowhere to be found after the incident, which prompted police
operatives to file a case for Murder against him (accused) before the
OCP-Talisay.
It was only when the case was resolved against accused herein,
and a warrant of arrest eventually issued for his capture, that he was
cajoled by his own father into surrendering.
In this case, since the fatal wound was located at the temporal
region of the victim, the assailant could only have (1) placed his arm
around the victim’s neck and shot him in his temple from behind, or (2)
called out to him while the victim was walking away and, while the latter
was in the process of turning around, the assailant immediately shot the
victim in his temple mid-turn.
ISSUES
xxx xxx”
The elements of Murder are (1) that a person was killed, (2) that
the accused killed him, (3) that the killing was attended by any of the
qualifying circumstances mentioned in article 248 of the Revised Penal
Code, and (4) that the killing is not parricide or infanticide.
SECOND ELEMENT
PRESENT
Witness GEMARIE might not have seen the accused shoot the
victim, but the fact that she testified that (1) the victim was last seen
with the accused just moments before he was shot, and (2) the accused
was seen by her walking away from the scene of the crime, with a gun in
his hand, just moments after the victim was shot, are more than enough
to prove, without a shadow of a doubt, that accused herein is
responsible for the death of the victim.
NO ULTERIOR
MOTIVE
1
Espineli vs. Espineli; G.R. No. 179535; June 9, 2014.
relative, accused herein, could only be driven by her dire and honest
need to seek justice for the death of her live-in partner.
FLIGHT OF ACCUSED
THIRD ELEMENT OF
QUALIFYING
CIRCUMSTANCES
PRESENT
TREACHERY
2
G.R. No. 214473; June 22, 2016.
According to the Supreme Court in the case of People vs. Aguilar 3,
the killing of the victim is qualified with treachery when the shooting
was sudden and unexpected, and the victim was not in a position to defend
himself.
In the case of People vs. Catipon, the Supreme Court likewise said
that treachery is present when the shooting of the victim xxx is sudden and
unexpected to the point of incapacitating the victim to repel or escape it.
Yet again, in the case of People vs. Dela Cruz 4, the Supreme Court
has also ruled, thus:
In the case at bar, Dr. Nestor Sator, the medico-legal officer who
conducted the autopsy on the victim, categorically testified in court that,
based on the trajectory of the bullet and the location of the wound, the
victim could have only been shot (1) when he had his back already
turned, and the assailant reached out from behind and shot the victim in
his right temple, or (2) when the victim already had his back turned, and
the assailant called out to him, which caused the victim to turn around,
and was immediately shot from behind while executing a mid-turn.
Yet, whatever the situation, it is clear that the killing of the victim
was certainly sudden and unexpected, and that he had no means of
defending himself. Such means, method or form of attack was
3
88 Phil. 693.
4
G.R. No. 188353; 16 February 2010; 612 SCRA 738.
consciously adopted by the accused, which clearly qualifies such killing
to one of Murder.
EVIDENT
PREMEDITATION
Accused denies the instant charge, and insists that he was in his
house in Pardo, Cebu City, when the incident happened. But for the
defense of alibi to prosper, the accused must prove not only that he was
at some other place at the time the crime was committed, but that it was
likewise impossible for him to be at the locus criminis at the time of the
alleged crime.5
WITNESS OF ACCUSED
PROVES NOTHING
The witness for the defense, the neighbor of the accused, testified
that she was inside her house when the shooting occurred, and that
when she went out, she only saw the victim lying on the ground, with
accused nowhere to be seen.
Yet, when such witness was cross-examined, she admitted that she
went outside only after five (5) minutes had passed from the time she
heard the gunshot, which clearly afforded the accused ample time to run
away without being seen by the witness.
Besides, a statement that she “did not see accused after the
gunshot” is not synonymous with the accused not being there at all, or
that he was not the one who pulled the trigger.
This witness likewise stated that accused did not anymore live in
his house in Talisay City when the incident occurred, as he already
resided in his other residence in Pardo, Cebu City. Yet, during her cross-
examination, such witness admitted that the same is not entirely true, as
the accused goes back and forth both residences from time to time.
LAST WORD
The truth of the matter is, the accused killed the victim in cold
blood. In order to ensure the success of his evil plan, accused employed
means and methods that were meant to take the victim by surprise, and
that no resistance could ever be proffered by him.
Accused has not been able to impute any kind of ill-motive or ill-
will on the part of the prosecution witnesses, particularly his niece,
GEMARIE CABUSAS.
GREETINGS!
Copy Furnished:
Atty. Caesar Gariando
Public Attorney’s Office (PAO)
Capitol, Cebu City