Republic of the Philippines

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
BRANCH 1
City of Baguio

PEOPLE OF THE PHILIPPINES CRIM. CASE

I.S. No. 11223344

-versus- -for-

“THEFT”
BRUNO MARS y GALUNGONG, under Art. 308 of the
Revised Penal Code
Respondent
x————————————— —— x

MOTION FOR LEAVE OF COURT TO FILE DEMURRER TO

EVIDENCE

ACCUSED, BRUNO MARS y GALUNGONG, through the

undersigned counsel, unto this Honorable Court, respectfully move
for Leave of Court to allow accused to file DEMURRER TO
EVIDENCE, for the reasons therein stated, and that the same be
served upon the complainant, in accordance with law.

1. That herein accused is presently being indicted for THEFT under

Criminal Case I.S. No. 11223344 before this Honorable Court against
the herein accused;

2. That the prosecution has presented its witnesses and has formally
offered its evidence and the admissibility of exhibits so offered had
been resolved in the order dated October 21, 2021 which was
received by the undersigned counsel on October 25, 2021;

Page 1 of 13
3. That the accused seeks leave of court to file a Demurrer to the
Evidence on the following ground:

The prosecution failed to adduce sufficient evidences to convict the

accused beyond reasonable doubt. For the crime of theft to prosper,
it must be established beyond doubt that the accused had the intent
to steal personal property. Intent to steal is presumed from the taking
of personal property without the consent of the owner or lawful
possessor thereof. The same may be rebutted by the accused by
evidence that he took the personal property under a bona fide belief
that he owns the property.

It must be stressed in these proceedings that the intent to steal on the

part of the accused was not established beyond reasonable doubt by
the prosecution. In this case, the accused took the property, believing
in good faith that the statue was his own.

Thus, in the case of Igdalino vs. People of the Philippines., G.R. No.
233033, July 23, 2018, the Honorable Supreme Court quoted the
decision of the State Supreme Court of Alabama in Black v. State:
"In all cases where one in good faith takes another’s property
under claim of title in himself, he is exempt from the charge of
larceny, however puerile or mistaken the claim may in fact be.
And the same is true where the taking is on behalf of another,
believed to be the true owner. Still, if the claim is dishonest, a
mere pretense, it will not protect the taker."

In view of the pronouncement of the Supreme Court in the above-

mentioned case, the Honorable Court must neither find it necessary
or profitable to examine the other corroborative evidence by the
prosecution since there is no crime of theft in the first place.

PRAYER
Page 2 of 13
 WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Court to GRANT Leave of Court to the accused to file
demurrer to evidence.

It is further prayed, that in case leave is granted, that the herein

attached DEMURRER TO EVIDENCE BE ADMITTED, RESOLVED
and GRANTED and that the case be finally DISMISSED and that
proper summons be served in accordance with the Rules of Court.

It is finally prayed, that, in case, this Motion for Leave of Court to file
Demurrer of Evidence be denied, it is respectfully prayed that
accused be allowed to present his evidences.

Other relief and remedies as may be deemed just and equitable under
the premises are likewise prayed for.

Baguio City, Philippines, October 26, 2021.

RESPECTFULLY SUBMITTED.

Doc. No. 050; ATTY. SYNZER KAPAWEN JR

Page No. 02; Counsel of the Accused
Book No. 32; Roll of Attorney No. 69420
IBP No. 14344, August 5, 2011/Baguio
Series of 2021.
PTR No. 965694, June 2, 2019/Baguio

Copy furnished:

SHAPPEE LAZADA CHAN

Assistant City Prosecutor
Prosecutors Office, Baguio City

NOTICE OF HEARING
Page 3 of 13
SHAPPEE LAZADA CHAN
Assistant City Prosecutor
Office of the Prosecutor
Baguio City

THE BRANCH CLERK OF COURT

RTC - Branch 1
Baguio City

Greetings!

Please take notice that the foregoing MOTION FOR LEAVE OF

COURT TO FILE DEMURRER TO EVIDENCE is hereby submitted,
for consideration and approval of the Honorable Court on October
29, 2021 at 8:30 in the morning at its session hall at RTC - Branch 1,
Baguio City or as soon as counsel may be heard or sans any
arguments.

Thank you.

ATTY. SYNZER KAPAWEN JR

Counsel of the Accused
Roll of Attorney No. 69420
IBP No. 14344, August 5, 2011/Baguio
PTR No. 965694, June 2, 2019/Baguio

Republic of the Philippines)

Page 4 of 13
City of Baguio ) S.S.

AFFIDAVIT OF PROOF OF SERVICE

I, RINA VALERIE CAFIRMA, of legal age, single, Filipino citizen and a
resident of 711, Pinsao Proper, Baguio City, after having been duly sworn to in
accordance with law hereby depose and say:
1. That I am a Secretary of the Law office of KAPAWEN AND PARTNERS
LAW FIRM with office address at Rm. 711 Insular Life Building, Baguio
City;
2. That in my aforementioned capacity, I had personally served a copy of the
MOTION FOR LEAVE OF COURT TO FILE DEMURRER TO EVIDENCE
of the accused in the case entitled “People of the Philippines vs. Bruno
Galungong Mars”, docketed as case no. 11223344 by personal service at
the office of the assistant city prosecutor.

SHAPPEE LAZADA CHAN

Assistant City Prosecutor
Prosecutors Office, Baguio City

3. I am executing this Affidavit to attest to the fact that I served copies of the
MOTION FOR LEAVE OF COURT TO FILE DEMURRER TO EVIDENCE
of the accused to the address indicated above.

IN WITNESS WHEREOF, I have hereunto set my hand this 26 th day of

October 2021 at Baguio City, Philippines.

(Sgd.) RINA VALERIE CAFIRMA

Affiant
PRC ID NO: 01188711

SUBSCRIBED AND SWORN TO BEFORE ME, this 22nd day of October

2021 at Baguio City, Philippines. I further CERTIFY that I have examined the
affiant and I am satisfied that he fully understood the contents thereof, which are
all true and correct of his own knowledge.

Doc. No. 155; (Sgd.) ERICKSON E. TAYA-AN

ATTY. ERICKSON E. TAYA-AN
Page No. 16; Notary Public Until December 31, 2021
Book No. 2; 525C Badihoy, Pinsao Proper 2600 Baguio City
IBP LT No. 1062258; 01.16.2019; Baguio-Benguet
Series of 2021; PTR No. 7211108; 1.22.2020; Benguet
ROLL No. 80911; 04-26-2017
MCLE COC No. 0030311; 2.20.2018

Page 5 of 13
 Republic of the Philippines
REGIONAL TRIAL COURT
FIRST JUDICIAL REGION
BRANCH 1
City of Baguio

PEOPLE OF THE PHILIPPINES CRIM. CASE

I.S. No. 11223344

-versus- -for-

“THEFT”
BRUNO MARS y GALUNGONG, under Art. 308 of the
Revised Penal Code
Respondent
x————————————— —— x

DEMURRER TO EVIDENCE
The Accused BRUNO MARS y GALUNGONG, through the
undersigned counsel, most respectfully submits its Demurrer to
Evidence and avers:

I. PREFATORY STATEMENT
The accused is not guilty of the crime of theft. Under the
Constitution, the accused is presumed innocent until proven guilty.
For the accused to be proven guilty the prosecution must provide
evidence that will show that the accused is guilty beyond reasonable
doubt. To do so, the prosecution must be able to prove that all the
elements of the crime theft charged uunder the first paragraph of
Article 308 which are: (1) the taking of personal property; (2) the
property belongs to another; (3) the taking away was done with
intent of gain; (4) the taking away was done without the consent of
the owner; and (5) the taking away is accomplished without violence
or intimidation against person or force upon things. However, the
prosecution failed to prove the existence of all the elements of the
crime charged.

Page 6 of 13
 II. STATEMENT OF FACTS
1. The instant case stemmed from the complaint filed by Matt
Joshua T. Juan for Theft.
In the complaint filed, the prosecution states as follows:

CRIMINAL CASE NO. 11223344

That on or about the 30th day of August 2021, in Baguio City

Philippines, the above named accused, forcefully and unlawfully
took the statue belonging to Matt Joshua T. Juan without the consent
of the owner and with intent to gain.

III. PROSECUTION EVIDENCE

A. WITNESSES

2. The prosecution presented several witnesses namely

Emmanuel C. Cayton Jr, Alicia Gimmemy Keys, Malou Regina Que
Pitt and Jhong Kee Hilarious.

3. In the direct testimony of Emmanuel C. Cayton Jr and Alicia

Gimmemy Keys contained in their respective Judicial Affidavits, they
stated that the accused forcefully took the Kim Jong Un statue when
in truth and in fact the accused decided to settle the matter in the
presence of government officials in their barangay.

4. The prosecution also presented Malou Regina Que Pitt and

Jhong Kee Hilarious. Both the witness claims that they are barangay
official of Pacdal Baguio City who are present during the settlement
done between the accused and the private complainant in the office
of the punong barangay when in truth and in fact they are not elected
official of the said barangay and as a consequent any statement
uttered by them in their Judicial affidavit cannot be admitted as
evidence to support the allegations of the private complainant in his
complaint..

B. PROSECUTION EXHIBITS

5. That after the last witness was presented, the prosecution

made its formal offer of evidence and presented the judicial
affidavits of the private complainant and its witnesses.
Page 7 of 13
C. COMMENT PROPER

6. Re: Exhibit ‘’A’’, the accused objects to the purpose of which

the exhibit is being offered for the reason that statements or
allegations are self-serving and misleading.

7. Re: Exhibit ‘’B’’, the accused objects to the purpose for which
it was being offered for being misleading.

8. Re: Exhibit ‘’C’’, the accused objects to the purpose for which
it was being offered for being misleading.

9. Re: Exhibit ‘’D’’, the accused objects to the purpose for which
it was being offered for being misleading.

10. Re: Exhibit ‘’G and G1’’, the accused objects to the purpose
for which it was being offered for being misleading.

11. Re: Exhibit ‘’H and H1’’, the accused objects to the purpose
for which it was being offered for being misleading.

12. Re: Exhibit ‘’J’’ and J1’’, the accused objects to the purpose
for which it was being offered for being misleading.

13. Re: Exhibit ‘’K’’ and K1’’, the accused objects to the purpose
for which it was being offered for being misleading.

14. Re: Exhibit ‘’M’’ and ‘’N’’, the accused objects to the
purpose for which it was being offered on the ground that the
same is not a valid receipt.

15. Re: Exhibit ‘’P’’, the accused objects to the purpose for
which it was being offered for being self-serving and the same
are not supported by evidence on record.

16. Re: Exhibit ‘’P’’, the accused objects to the purpose for
which it was being offered for being inadmissible.

17. . Re: Exhibit ‘’P’’, the accused objects to the purpose for
which it was being offered for being inadmissible.
Page 8 of 13
 18. . Re: Exhibit ‘’Q’’, the accused objects to the purpose for
which it was being offered for being inadmissible.

19. Re: Exhibit ‘’R’’, the accused objects to the purpose for
which it was being offered for being inadmissible.

20. Re: Exhibit ‘’S’’, the accused opposes to the purpose for
which it was being offered for lack of credibility.

IV. ISSUE

WHETHER OR NOT THE PROSECUTION HAS PROVEN THAT

THE ELEMENTS OF THEFT WERE ESTABLISHED

V. ARGUMENTS/DISCUSSION

I. THE PROSECUTION HAS

NOT ESTABISHED THE ELEMENTS
OF THEFT

21. In this instant case, the prosecution failed to prove all the
elements of the crime particularly, (3) the taking away was
done with intent to gain, (4) the taking away was done
without the consent of the owner.

22. The taking away was not done with intent to gain. The
prosecution fails to provide sufficient evidence to show that the
accused has the intent to gain in taking away the statue. Mere
presumption that the taking away was with intent to gain is not
sufficient to prove the guilt of the accused beyond reasonable
doubt. Corroborative evidence must be presented to establish
the intent to gain. However, in this case the prosecution does
not have sufficient corroborative evidence to establish the intent
to gain. The prosecution relies merely on the statement of facts
stated in the complaint affidavit as to the intention of the
accused in taking the subject statue. These statements of facts
were controverted by the accused and questioned for they are
merely self-serving statements, speculative and misleading.

Page 9 of 13
23. The taking away was done with the consent of the owner.
The prosecution fails to prove beyond reasonable doubt that
the taking of the statue was without the consent of the
complainant. The prosecution relies on the CCTV footage and
the testimony of the witness to prove that the taking was
without the consent of the owner. However, the CCTV footage
are inadmissible for they are not corroborated by the testimony
of the witness who has accurate personal knowledge as to what
the CCTV portrays. The witnesses presented by the prosecution
to corroborate the CCTV was disqualified as witness since they
have no personal knowledge because they are not an elected
barangay officials of Pacdal, which they alleged. They do not
have access to the CCTV of the Barangay because they are not
barangay officials. Further, testimony of witnesses presented by
the prosecution as to what happened on August 30, 2021 were
full of lies as shown in the conflicting testimonies provided by
the prosecution. Hence, the credibility of the witnesses are
questionable.

22. Further, the prosecution must rely on the strength of their

evidence to prove beyond reasonable doubt the guild of the
accused and not rely on the weakness of the evidence of the
accused. However, in this case the prosecution’s evidence were
directed in controverting the evidence of the accused provided
in the counter-affidavit. The prosecution fails to present
sufficient and reliable evidence to prove the guilt of the
accused.

23. Hence, the accused BRUNO MARS GALUNGGONG

submits that he could not be charge with the crime of theft
because the prosecution has no sufficient evidence to prove
beyond reasonable doubt the existence of the ELEMENTS
CONSTITUTING THE CRIME.

CONCLUSION
24. Based on the foregoing, the crime charged have not proven
the guilt of the accused since the elements constituting the
crime were not established. Thus, the accused BRUNO MARS
GALUNGGONG is entitled to an acquittal by way of demurrer
to evidence, in the interest of speedy and fair justice.
Page 10 of 13
 PRAYER
WHEREFORE, in the interest of justice, it is respectfully prayed
that this Demurrer to Evidence be GRANTED.

Other reliefs just and equitable are likewise prayed for.

Respectfully submitted, this 26th day of October 2021 at Baguio

City.

Copy Furnished:
SHAPPEE LAZADA CHAN
Assistant City Prosecutor
Prosecutors Office, Baguio City

Page 11 of 13
 NOTICE OF HEARING

SHAPPEE LAZADA CHAN

Assistant City Prosecutor
Office of the Prosecutor
Baguio City

THE BRANCH CLERK OF COURT

RTC - Branch 1
Baguio City

Greetings!

Please take notice that the foregoing DEMURRER TO

EVIDENCE is hereby submitted, for consideration and approval of
the Honorable Court on October 29, 2021 at 8:30 in the morning at its
session hall at RTC - Branch 1, Baguio City or as soon as counsel may
be heard or sans any arguments.

Thank you.

Page 12 of 13
Republic of the Philippines)
City of Baguio ) S.S.

AFFIDAVIT OF PROOF OF SERVICE

I, RINA VALERIE CAFIRMA, of legal age, single, Filipino citizen and a
resident of 711, Pinsao Proper, Baguio City, after having been duly sworn to in
accordance with law hereby depose and say:
1. That I am a Secretary of the Law office of KAPAWEN AND PARTNERS
LAW FIRM with office address at Rm. 711 Insular Life Building, Baguio
City;
2. That in my aforementioned capacity, I had personally served a copy of the
DEMURRER TO EVIDENCE of the accused in the case entitled “People of
the Philippines vs. Bruno Galungong Mars”, docketed as case no.
11223344 by personal service at the office of the assistant city prosecutor.

SHAPPEE LAZADA CHAN

Assistant City Prosecutor
Prosecutors Office, Baguio City

3. I am executing this Affidavit to attest to the fact that I served copies of the
DEMURRER TO EVIDENCE of the accused to the address indicated
above.

IN WITNESS WHEREOF, I have hereunto set my hand this 26 th day of

October 2021 at Baguio City, Philippines.

(Sgd.) RINA VALERIE CAFIRMA

Affiant
PRC ID NO: 01188711

SUBSCRIBED AND SWORN TO BEFORE ME, this 22nd day of October

2021 at Baguio City, Philippines. I further CERTIFY that I have examined the
affiant and I am satisfied that he fully understood the contents thereof, which are
all true and correct of his own knowledge.

Doc. No. 156; (Sgd.) ERICKSON E. TAYA-AN

ATTY. ERICKSON E. TAYA-AN
Page No. 16; Notary Public Until December 31, 2021
Book No. 2; 525C Badihoy, Pinsao Proper 2600 Baguio City
IBP LT No. 1062258; 01.16.2019; Baguio-Benguet
Series of 2021; PTR No. 7211108; 1.22.2020; Benguet
ROLL No. 80911; 04-26-2017
MCLE COC No. 0030311; 2.20.2018

Page 13 of 13