REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT FIRST JUDICIAL REGION BRANCH 39 Lingayen, Pangasinan PEOPLE OF THE PHILIPPINES,

Plaintiff 7307 -versusPEPITO CRUZ, et. al. X-------------------------------------X

CRIM. CASE NO. LFor: MURDER

M E M O R A N D U M

WITH UTMOST COURTESY, all accused represented by undersigned counsel submits this MEMORANDUM in compliance with the order of this Honorable Court dated February 3, 2009. FACTS OF THE CASE: Accused are father and sons, PEPITO SR., PEPITO JR., BABETTE, and GEORGE, all surnamed CRUZ. They are charged with MURDER by virtue of Information dated September 28, 2004, which reads as follows: xxx That in the afternoon of January 18, 2003 along the barangay road in Sitio Aplaya, Brgy. Pangapisan North, Lingayen, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, all armed and with intent to kill, qualified by treachery, superior strength and by a band, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously chase an unarmed MOISES VILA, shot him once at the back and struck his head and other parts of his body several times using iron pipes, which resulted to his untimely death, to the damage and prejudice of his heirs xxx1 At the reception of evidence, prosecution put forth testimonial evidence of witnesses ALICE and VENUS VILA, the mother and daughter of victim MOISES VILA, respectively. Both were claiming to have eyewitness account of the incident.

1 Records, page 1

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In fine, they testified that while in front of the house of EDISON VILA (brother of the deceased victim), they saw MOISES being chased by all the accused. It was claimed by both that accused PEPITO JR. was armed with a gun, whereas the other three (3) accused were each holding iron pipe. MOISES was approaching their direction when he was gunned down by PEPITO JR, hitting him at the back. MOISES fell down, but not before BABETTE struck him with iron pipe. All the accused denied the accusations outright, except PEPITO JR. who owned up to the act of shooting the victim under the compulsion of defending himself from aggression by the victim. Per his testimony, PEPITO JR. was on his way home on board a tricycle when victim flagged them (accused was with the driver of the tricycle). Armed with a gun and a bolo strapped to his back, he forced the tricycle to a crunch by blocking its way. When the tricycle did stop and PEPITO JR. approach the victim, the latter turned violent, making threats to get back at the party happening at the CRUZ family house and hurt the people therein. A commotion ensued when PEPITO JR. tried to pacify and impede the victim from proceeding. PEPITO JR. wrestled possession of the gun from MOISES when the latter proved too unruly to be stopped. Able to yank the gun from him, MOISES unleashed his other weapon and started hitting the accused with the bolo. With several attempts, PEPITO JR. was hit at the left arm. When the attack on his life persisted, PEPITO JR. fired the gun at the victim in order to stop him. He then fled from the scene out fear and shock at what just happened. In court, PEPITO JR. insisted that of all the accused, he alone was present at the shooting incident. He pleaded for his coaccused, his father and brothers, to be spared from being prosecuted as they had no complicity, whatsoever, in the case at bar. For his part, PEPITO SR. vigorously vouched for his innocence in court. By sheer irony, it was him and his family who were victims of the violence staged by the victim during a party at his residence on January 18, 2004. At the reception of the baptism of his grandchild, while the party attended by his family and guests was in full swing, MOISES barged in and caused trouble. He slammed a sack filled with bottles of beer on the table. Afterwards, he went amok with a bolo in hand hitting at the table and almost hitting the people around. The outburst was only curtailed when some of the guests (friends of PEPITO JR.) who were angered and endangered by the acts of MOISES chased him away from the party. Taking cue from the advice of his son BABETTE, he had the incident reported immediately to the police

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station of Lingayen, Pangasinan. As proof, he presented a Certificate of Police Blotter Entry in court which was marked as EXHIBIT 1.

BABETTE likewise claimed innocence during the trial. He testified that on January 18, 2004, he was resting inside the house when he heard of the commotion outside, coming from in front of the house where the party was taking place. When he went out to check on what was happening, he saw MOISES in a rampage, hacking everything with a bolo. He likewise saw some of the guests (friends of PEPITO JR.) chased MOISES away. He denied clubbing the victim with an iron pipe. Defense rested without presenting the other accused GEORGE. His fellow accused confirmed that, like BABETTE, he was inside the house and not among the crowd in the party because he was sick. He was not among those who chased the victim. Neither was he present at the scene of the shooting incident. By the close of the trial, the court was confronted with conflicting versions pertaining to the demise of the victim. Whose account of the incident stands closer to reality? There is also the ever important issue of whether or not on the bases of evidence presented by the prosecution; conviction may be had against all the accused. This representation humbly answers in the negative.

DISCUSSIONS/ARGUMENTS: The testimony of PEPITO JR. owning up to the shooting by himself, unaided by his co-accused, operates to exonerate them from the charge. Acting on the impulse to set what is right and sympathetic of the tragic plight of his father and brothers being incarcerated for something they did not do; PEPITO JR. bravely admitted having shot the victim on grounds of self-defense. The nature and significance of this testimony deserves but full appreciation and understanding if only to give care and caution in deciding a delicate case involving almost the entire family like in this case. Taken as a whole, the account given by witness ALICE VILA of the incident is more of an afterthought and malicious

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concoction. Her story was such that she wanted to implicate all four accused to the subject incident. She went far into saying that each accused was armed when they chased the victim. PEPITO JR. with a gun and the rest with iron pipes. She wanted to impress the court that all four accused conspired and helped one another commit the crime in the street and in broad day light. Her testimony shows desperate attempt to paint conspiracy and establish collective guilt against the accused. But as often the case, with discerning eyes, it is easy to see pass her lies. On cross-examination, ALICE was made to admit she did nothing while her son was allegedly being butchered right in front of her.
Xxxx ATTY. SOLIS Q. A. Q. How far was Moises Vila from you when you recognized him being chased by the accused? About 4 to 5 meters, sir.

So when you already recognized (sic) your son, am (sic) I now correct Madam Witness that you felt frightened and terrified? A. Yes, sir. Q. And despite that (sic), you remained standing in front of the house of Edison Vila? A. Yes, sir.

Q. And despite the fact that you are frightened and

terrified, you did not enter the house of Edison Vila and ask for help from the people around, is that correct? A. No, sir.

Xxxx ATTY. SOLIS Q. What did you do then? A. I was just standing together with the baby? Q. You remained there standing (sic) baby sitting your grand daughter? A. Yes, sir. Q. You did not also ask for help from the neighboring houses? A. No, sir.2 Xxxxx 2 TSN, November 6, 2007, pp. 5-6

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As a mother who claims to have witnessed the slaying of her sons, her behavior and reaction to the situation is unlikely and unbelievable. Any mother would naturally summon for help, if not to provide help herself. But this particular mother just stood there and judiciously observe every detail of his sons murder, so that she gave elaborate account of the incident during the hearing that followed. The court should treat her story with great caution. It is also noteworthy that ALICE relayed her story to the police only on January 26, 2004 or eight (8) days after the subject incident, rendering suspect the accuracy or even the veracity of her account. Again, this is inconsistent with the expected behavior of a mother who had just witnessed the killing of her son who would relay the incident to the authorities in no time. Even if the story of ALICE would be admitted on its face, still not all the accused may be convicted relying on her testimony alone. For one, there was no mention of the participation of PEPITO SR. and GEORGE CRUZ in the killing of MOISES VILLA, except that they were each holding an iron pipe and they were among those who chased the victim. ALICE singled out PEPITO JR. to be the one who shot her son. At the time of the shooting, the other accused where standing behind him. She said she heard BABETTE uttered Paltog mo la (Shot him already) before PEPITO JR. shot the victim, but that of course is self-serving. After he was shot, the victim fell to the ground but not before BABETTE struck him with an iron pipe, but this of course is self-serving, if not, impossible.3 On direct examination, ALICE testified that she saw her son fell down when PEPITO JR. shot him at the back. But she embellished her story to a point of utter disbelief by adding later that her son slowly turned to face his assailant and while doing that, he was struck with an iron pipe by the accused BABETTE.4 Law of physics should reveal this story to be tell-tale. It can be inferred that the victim was shot at close range, consequent to the claim that he was chased and caught up with by the accused. When he was shot, his assailant was behind him and the bullet pierced into his body from his back. The propulsion occasioned by him running from his assailant and the thrust of the bullet hitting his back would be of such force as to cause him to slump to the ground quickly. A close shot like that would instantly kill
3 TSN, June 2, 2006, pp. 7-8 4 TSN, June 2, 2006, pp. 8-9

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the victim. Taking all these in careful consideration, the claim that the victim slowly fell down and even turning his body towards his assailants is plain farcical. Nevertheless, if victim were in fact beaten with an iron rod while in a limp position, sufficient damage would have resulted producing physical evidence of the blow. No evidence of injury of this kind was produced in court to substantiate the allegation. Moreover, in the Death Certificate of the victim presented in court, only gun-related injury was noted therein to have been found in the body of the deceased.

It is important to stress at this point that the prosecution failed to call in any expert witness to flesh out and substantiate the injuries claimed to have been sustained by the victim. The testimony of the other alleged eyewitness VENUS VILA is corroborative at best. It is a duplication of the earlier account of her grandmother, ALICE VILA. She being the first child and daughter of the victim, her testimony is no doubt self-serving. It is not farfetched to surmise that VENUS is coached and fed the account of the incident she relayed in court observing how identical her testimony is with that of ALICE. At any rate, her testimony seemed to have cleared accused PEPITO SR. and GEORGE CRUZ from any involvement to the crime, viz: Xxxx
PROS. DUMLAO: Q. A. Do I get it right it was only Pepito Cruz, Jr. and Babette (sic) Cruz who hit your father? Yes, sir. George Cruz were (sic) merely armed but did never struck or hit the victim, your father? Yes, sir.5

Q. So, in short Madam Witness, Pepito Cruz, Sr. and A.

Xxxx The presence of PEPITO CRUZ, SR. and GEORGE CRUZ in the crime scene, if such was the truth, nevertheless does not make them criminally liable. It must be stressed that the prosecution failed to prove conspiracy among the accused. Neither did it attempt to adduce evidence of conspiracy during the trial.
5 TSN, November 21, 2007, p.7

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For conspiracy to be appreciated, the quantum of proof required has always been set at positive and conclusive evidence and cannot be based on mere conjectures. For instance in Angeles vs. Desierto, to establish conspiracy, evidence of actual cooperation, rather than mere cognizance or approval of an illegal act is required.6 Also in Astudillo vs. People, it is ruled that, mere companionship does not establish conspiracy.7 During the trial, all that was mentioned was that all the accused chased the victim, but only one of them shot him to death. It was not shown or demonstrated, however, that the other three cooperated with and confederated with the shooter to insure the death of the victim. Their specific acts were not necessary or indispensable to the perpetration of the offense. In a similar case involving members of the same family (Sienes vs. People), the Supreme Court ruled that there was no conspiracy between and among the three sons and their father. Conspiracy cannot be inferred from their acts. The fast sequence of unexpected events leading to the killing of the victim elicited the spontaneous, though erroneous reactions of the three. Their impulsive acts cannot but produce the conclusion that the same were triggered without prior or evident deliberation. The killing was not the result of a previous plot or sinister design to end the life of the victim. Conspiracy, like the crime itself, must be proven beyond reasonable doubt and the mere presence of a person at the scene of the crime does not make him a coconspiratorxxx8 In the Sienes case, however, the prosecution was able to prove that all four (4) accused participated in the killing the victim. The father MARCIAL SIENES stabbed the victim with hunting knife, whereas his other son ROGER stabbed the victim with pinuti. The other sons also took turns in clubbing the victim using kamagong canes. The injuries resulting from the stabbing and beating were likewise proved during the trial. In the instant case, it was admitted by the prosecution that only accused PEPITO JR. and BABETTE CRUZ shot and struck the victim respectively. The other accused PEPITO SR. and GEORGE were just behind doing nothing when the shooting and striking took place. Unlike in Sienes case were all injuries of the victim were substantiated; only gunshot wound was shown to have been incurred by the victim in the instant case, albeit incompetently. Evidence of the injury did not come through competent evidence such as medico-legal findings. Instead, it was the death certificate of the victim that was presented to prove the cause of
6 501 SCRA 202 7 509 SCRA 302 8 511 SCRA 13

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his death. At best, death certificate can only be utilized to prove the fact of death. It is not a substitute for medico-legal findings which would competently prove the nature of injury and/or cause of death of the victim. It would be unfair and unjust to use the said document for any other purpose against the accused apart from what it is intended forto prove registration of the fact of death. Nevertheless, in the said death certificate, only gun-related injury was reported. There was nothing in the document to back the story that apart from being shot, the victim was also struck with an iron pipe. Finally, evidence on record is consistent with the innocence of PEPITO CRUZ, SR. His account of the story sticks up to reality. After victim crashed into the party and threaten to hurt those around including PEPITO and members of his family, he immediately went to the police station to have the incident reported. Proof of the reporting was established through a certification to that effect. That said, it would be physically impossible for him to participate in the chasing of the victim as he was on his way to the police station to report the incident. Moreover, assuming arguendo that he joined in the chase, it would be improbable for him to show up before the police station minutes after he was involved in the killing of a man. A guilty man would have fled and eluded arrest.

IN VIEW OF THE FOREGOING, it is respectfully prayed that this Honorable Court render decision acquitting all the accused of the crime charged. Respectfully Submitted. Lingayen, Pangasinan, March 3, 2009. PUBLIC ATTORNEYS OFFICE (PAO) Lingayen District Office Justice Hall Lingayen, Pangasinan Counsel for Accused By: BRYAN JASPER D. SOLIS Copy furnished: PROS. RESTITUTO A. DUMLAO, JR.

9 MEMORANDUM Crim. Case No. L-7037 People vs. PEPITO CRUZ, SR., et.al.

Office of the Provincial Prosecutor Lingayen, Pangasinan By personal delivery