Republic of the Philippines

REGIONAL TRIAL COURT

6TH Judicial Region
Branch 68
P. D. Monfort North, Dumangas, Iloilo

PEOPLE OF THE PHILIPPINES,

Plaintiff, CRIM. CASE NO. 05-2878

---Versus---

DANTE PADERNILLA, ET AL.,

Accused.
X - - - - - - - - - - - - - - - - - - - - -X

MOTION TO FIX AND ALLOW BAIL

Accused ROGER DUTERTE [Duterte, for brevity], by undersigned counsel,

respectfully state, THAT:
1. Accused is in custody for the alleged commission of the crime of Murder;

2. Under Section 8, Rule 114 of the Rules of Court, in cases wherein the accused is
in custody for the commission of an offense that is punishable by reclusion perpetua¸ or
life imprisonment the burden of showing that the evidence of guilt is strong is on the
prosecution [Including all the alleged qualifying aggravating circumstances], and unless
this fact is satisfactorily shown, the accused may be allowed to post bail at the court’s
discretion;

3. The prosecution had already terminated presentation of its evidence in chief and
there was nothing that would point to the fact that the evidence of guilt of accused
Duterte is strong, or that any qualifying aggravating circumstance that would qualify the
alleged killing to murder was present. The succeeding discussions would further buttress
our contention;

4. In fact, in the last paragraph of page 4 of the 4 December 2008 ORDER of this
Honorable Court it is stated that the evidence for the prosecution are circumstantial

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evidence. For clarity and expediency, we have hereunder reproduced that particular
portion, in toto, viz:
“xxx. The records show that all prosecution’s witnesses had
already testified and had already been discharged from the witness
stand. Not one of them corroborated accused’s Duterte’s affidavit. In
fact, prosecution’s evidences are circumstantial evidence against
him and his co-accused xxx” (Emphasis supplied.)

5. Prosecution contends that prosecution’s witness, Meliton Iniego, saw accused

Normilito Edobingo, Dante Padenilla, and Roger Duterte in the house of accused Perez
(now acquitted), is no strong indication that they were in conspiracy in the commission of
the crime charged. Unless shown, which the prosecution miserably failed to do, that
accused Duterte had participated in the actual commission of the crime in killing the
victim, he cannot be held criminally liable. Even the presence of a person at the crime
scene, while the crime was actually being committed by others, does not make him a
conspirator. A person’s mere passive presence at the crime scene does not make him a
conspirator. (People vs. OTAYDE, et al., G.R. No. 140227, 28 Nov. 2003, En Banc) [See
also last par. of p. 2, of the 11 May 2009 ORDER, of the Honorable Court];

6. Granting, ex gratia argumenti, without admitting, that prosecution’s witness

Meliton Iniego indeed saw accused Normelito Edobingo, Dante Padernilla, and Roger
Duterte inside the house of Fernando “Ikog” Perez, one of them was holding a firearm, he
however never heard what they were talking about and did not even give the particular
date or dates when he saw these persons. It is also to be noted that there was not even a
scintilla of proof showing that the gun being referred to was the murder weapon. There
was also no proof to the effect that Padernilla and Edobingo were the assailants. One
cannot simply assume or make a suspicion or resort to innuendo or supposition as to what
was discussed by the above-named persons. Thus, evidence giving rise to mere
conjectures, surmises, or suspicion of guilt is not sufficient to warrant a conviction.
Jurisprudence has established that even the Supreme Court may review and at times
reverse and set aside factual findings of both the trial court and the CA in the following
cases: (1) when the findings are grounded entirely on speculation, surmises or

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conjectures; xxx. (Manila Electric Co. vs. Wilcon Builders Supply, Inc., G.R. No. 171534,
June 30, 2008, 3rd Div.);

7. Noteworthy is the fact that of the several witnesses for the prosecution it was
only Meliton Iniego who made mention of the name of Duterte;

8. Courts must judge the guilt or innocence of the accused based on facts, not on
mere conjecture, presumption, surmises, or suspicion. While no formal agreement is
necessary to establish conspiracy, it must be established by clear and convincing
evidence. Even if all the malefactors joined in the killing, such circumstance alone does
not satisfy the requirement of conspiracy because the rule is that neither joint nor
simultaneous action is per se sufficient proof of conspiracy. (People vs. Dugan, 499
SCRA 64) Mere companionship does not establish conspiracy. (Sampua vs. Angana, 499
SCRA 410; Astudillo vs.. People, 509 SCRA 302) To establish conspiracy, evidence of
actual cooperation, rather than mere cognizance or approval of an illegal act is required.
(Angeles vs. Desierto, 501 SCRA 202) Conspiracy must be established by positive and
conclusive evidence and cannot be based on mere conjectures. (Bernardino vs. People,
506 SCRA 237). [See also par. 2 of p. 3, May 11, 2009 ORDER of this Honorable Court];

9. By the way, the Sinumpaang Salaysay executed by Duterte was already declared
inadmissible by the Hon. Court in its 12 January 2009 ORDER. This is in consonance
with the last paragraph of Rule 119, Sec. 17, Revised Rules of Criminal Procedure, viz:
“Xxx. If the court denies the motion for discharge of the accused
as state witness, his sworn statement shall be inadmissible in
evidence.”

10. The above discussions would show that the evidence presented by the
prosecution to establish the guilt of the accused is very weak;

WHEREFORE, upon notice and hearing, it is respectfully prayed that accused

Roger Duterte be admitted to bail in such amount as this Honorable Court may fix.

Respectfully submitted.

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 Iloilo City for Dumangas, Iloilo. 8 June 2009.

ATTY. CHARLIE V. BRAVO, JR.

ROLL NO. 40172
IBP (Iloilo) 746619, 12/04/08
PTR No. 3160727, 12/04/08 ~ Iloilo City
MCLE Compliance No. III: Cert. No. 3139
Issued on 24 Apr. 2009
OFFICE:
NO. 251-A COMPANIA STREET
BRGY. SOUTH FUNDIDOR, MOLO
5000 ILOILO CITY
TELEFAX 337-0258

NOTICE OF HEARING
(1) THE HONORABLE CLERK OF COURT
RTC BR. 68
P.D. MONFORT NORTH, DUMANGAS, ILOILO

(2) HON. PROV’L PROS. BERNABE DUSABAN, PROV’L PROSECUTOR’S OFFICE, HALL OF
JUSTICE, ILOILO CITY

BAIL RECOMMENDED: ___________________

RECEIVED BY: ________________________________ DATE: ______

(Please sign above printed name. Thank you)

(3) ATTY. ROBERT J. PARCON, YMCA ANNEX BLDG., IZNART STREET, ILOILO CITY

RECEIVED BY: ________________________________ DATE: ______

(Please sign above printed name. Thank you)

G R E E T I N G S:

Please take notice that undersigned will submit the foregoing motion to the kind consideration of
the Hon. Court on 19 June 2009 at 8:30 a.m. or immediately thereafter as counsel may be heard.

ATTY. CHARLIE V. BRAVO, JR.

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