REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
Quezon City
Branch 222

PEOPLE OF THE PHIL.,

Plaintiff,

-versus- Criminal Case No. Q-12-178470 to 178475

ARJAY BADILLA, ET AL.,

Accused.
X=====================X

MOTION TO REMAND CASES TO THE OFFICE

OF THE CITY PROSECUTOR

THE DEFENSE, to this Honorable Court, most respectfully

moves for the above based on the following discussion, THUS:

The accused learned of the filing of Informations with this

Honorable Court on October 8, 2012 when they inquired with the
Office of the City Prosecutor after they received copy of the adverse
resolution rendered by the Office of the City Prosecutor of Quezon City.

This MOTION is being filed based on the ground that there is no

probable cause to support the issuance of warrant of arrest based on
the following: (1) Complainants Jessica Manansala, Mary Jane
Diomampo, Yolanda Manansala and Renemar Garcia have no Personal
Knowledge of the subject Incident on 28 November 2011; and (2)
Taken together, the testimony of all the witnesses has no evidentiary
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value for being hearsay and not in accord with the ordinary experience
of man.

It is settled that the jurisdiction of the court became vested upon

the filing of the information and, once acquired, its jurisdiction
continues until the termination of the case. Where the information had
been filed in court, it should therefore dispose of them, one way or the
other, resolving all motions brought before it including motions to
dismiss, filed by the Fiscal, or deciding the cases on the merit. The
prosecuting fiscal has no more control over said cases, the same
having been transferred to the court. (Alberto vs. dela Cruz, 98 SCRA
406-407).

Upon the other hand, in Sales vs. Sandiganbayan, 369 SCRA

293, the High Court explained the nature and purpose of preliminary
investigation as and being part of due process. The determination of
probable cause is primarily and principally the job of the prosecutorial
arm of the State. Prosecutors were enjoined to weigh evidence carefully
and deliberate thereon to determine the existence of prima facie and
NOT TO PASS THE BUCK TO COURT.

Also in Longos Rural Waterworks & Sanitation Assn, Inc. v.

Desierto, 385 SCRA 392, the High Court reiterated with emphasis that
determination of probable cause for purposes of holding accused for
trial is NOT LODGED WITH COURT. It is thus strongly urged for the
Honorable Court to remand these cases to the Office of the City
Prosecutor in order for the latter to conduct re-investigation thereon
and/or for the said office to take another look at its disposition of the
subject cases considering the dearth of evidence to support the present
indictment.

Upon the other hand, while re-investigation is being conducted by

the prosecutor’s office, it is in the higher interest of fair play and
justice that the determination of probable cause by this Honorable
Court for purposes of issuing a warrant of arrest be held in abeyance
and deferred until such time that the trial prosecutor assigned to this
Honorable Court be able to conduct, complete, and finish the re-
investigation being sought.
It is well to remind everyone involved in criminal prosecution
where what is at stake is the precious liberty of a person that
“ISSUANCE OF WARRANT IS NOT A MINISTERIAL DUTY OF RTC

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JUDGE. It is improper for the judge to issue warrant same day the
case is raffled to his sala (Arcilla v. Palaypayon, 364 SCRA 464).
The judge should never allow tofollow blindly prosecutor’s bare
certification that a preliminary investigation has been conducted and
that there is probable cause to charge the respondents in court.

That even a cursory examination of the criminal informations

subject of the proceedings would readily reveal the non-existence and
lack of specific attribution of any definite acts on the part of each and
every accused in the perpetration of the crimes being imputed to all
the accused.

In its entirety, the record of the preliminary investigation bear

nothing to justify the finding of probable cause against any of the
accused considering that it is very plain and patent that the
complaining witnesses do not have personal knowledge of the subject
incidents. Moreover, the affidavits executed by the complaining
witnesses reveal the glaring fact that their version of the unfortunate
incident is not only internally conflicting but contrary to ordinary
human experience.

Section 36, Rule 130 of the Rules of Court provides that “a

witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception, except
as otherwise provided in these rules.”

The admission of hearsay evidence would be a violation of the

constitutional provision that the accused shall enjoy the right to
confront the witnesses testifying against him and to cross-examine
him. (People vs. Mamalias, 328 SCRA 760). In fact, even if admitted,
hearsay evidence has no probative value. (Mallari v. People, 446 SCRA
74).

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 The theory of conspiracy stands on a very shaky ground. The
testimony of all the complaining witnesses does not in any way
establish much less imply that the alleged crime had been perpetrated
through concerted actions and efforts by all the accused. In fact, even
the criminal informations filed in court are wanting of any specific
allegation as to the individual participation of each accused in the
commission of the crimes charged in the five counts of Information for
Murder and one (1) count for Frustrated Murder.

It bears stressing that “ x x x proof, not mere conjectures or

assumptions, should be proferred to indicate that the accused had taken
part in the “planning, preparation and perpetration of the alleged
conspiracy to defraud the government” for, otherwise, any “CARELESS
USE OF THE CONSPIRACY THEORY (CAN) SWEEP INTO JAIL EVEN
INNOCENT PERSONS WHOM MAY HAVE (ONLY) BEEN MADE
UNWITTING TOOLS BY THE CRIMINAL MINDS.” (Pedro G. sistoza vs.
Aniano Desierto and Eliseo, G.R. No. 144784, September 3, 2002.)

Moreover, jurisprudence teaches that for conspiracy to exist, the

co-conspirators, by their acts must aim at the same object, one
performing another part so as to complete it, with a view to the
attainment of the same object, and their acts, though apparently
independent, were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of
sentiments (People vs. Geronimo, No. L-35700, Oct. 15, 1973, 53 SCRA
246, 254).

It is clear from the above that each co-conspirator must--- (1)

commit an act; (2) the act must be aimed at the same object; (3) One
performing another part to complete the crime; and (4) The acts of the
co-conspirators, though apparently independent, were in fact
concerted and cooperative, indicating closeness and concurrence of
sentiments.

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 Here, the Informations, in violation of the right of the accused to
be informed of the nature and cause of the accusation against him,
does not state with the required specificity the particular act or acts
committed by each accused in attaining the felonious objective of
killing the victims.

The Informations can be quashed for vagueness and technical

infirmity. As stated earlier, to hold each accused liable for the charges
allegedly committed by them, it must be established that each
accused had performed an overt act in furtherance of the
conspiracy to kill the victims, either by actively participating in the
actual commission of the crime, or by lending moral assistance to the
actual perpetrators of the crime by being present at the scene of the
crime, or by exerting moral ascendancy over the rest of the
conspirators as to move them to executing the conspiracy. (People vs.
Cortez, 57 SCRA 308).

Mere knowledge, acquiescence, or approval of the act without

cooperation or agreement to cooperate is not enough to constitute one
a party to a conspiracy, but that there must be intentional
participation in the transaction with a view to furtherance of the
common design and purpose (Taer vs. CA, 186 SCRA 598).

In fact, in several cases it was held that conspiracy transcends

companionship. Hence, the mere fact that one or two of the accused
may have happened to be at the locus criminis cannot instantly
support a finding of conspiracy. (People vs. Padrones, 189 Scra 496).
While conspiracy may be implied from the circumstances attending the
commission of the crime, it is nevertheless a rule that conspiracy must
be established by positive and conclusive evidence (People vs. Ancheta,
66 Phil. 638)

The same degree of proof necessary to establish the crime is

required to establish a finding of criminal conspiracy, that is, proof

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beyond reasonable doubt. It cannot be established by conjectures but
by positive and conclusive evidence. Since conspiracy must be proved
beyond peradventure of a doubt, it follows that it cannot be
appreciated where the facts can be consistent with the
nonparticipation of the accused in the fancied cabal. (People vs.
Furugganana, 193 SCRA 471).

It is now very clear that the conduct of re-investigation in

these cases become indispensable if only to avert the perpetration and
perpetuation of grave injustice upon an innocent person. This is
consistent with the solemn injunction by the High Court upon
prosecutors for them to--

“cautiously review the complaint to determine whether there

are inconsistencies which ought to have been brought to the
attention of the respondent or, on his own, considered for due
evaluation. IT IS A BIG MISTAKE TO BRING A MAN TO TRIAL
FOR A CRIME HE DID NOT COMMIT.”

Furthermore, “prosecutors are endowed with ample powers in

order that they may properly fulfill their assigned role in the
administration of justice. IT BEHOOVES a PROSECUTOR TO WEIGH
THE EVIDENCE CAREFULLY AND TO DELIBERATE THEREON TO
DETERMINE THE EXISTENCE OF A PRIMA FACIE CASE BEFORE
FILING THE INFORMATION IN COURT. ANYTHING LESS WOULD BE A
DERILICTION OF DUTY.” (Borlonga vs. Magdaleno Pena and Hon.
Manuel Limisaco, Jr., G.R. No. 143591, May 5, 2010).

Once again, it is well to remember the truism that—

“a preliminary investigation serves not only the purposes

of the State. More important, it is part of the guarantee
of freedom and fair play which are birthrights of all who
live in our country. It is therefore imperative upon the
fiscal or the judge, as the case may be, to relieve the
accused from the pain of going through a trial once it is
ascertained that the eveidence is insufficient to sustain

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 a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused.”

The Defense without offending the Christian sensibilities of

everyone most respectfully offers its version of THE WORD
ACCORDING TO THE CONSTITUTION…..

Any inquiry on the guilt of the accused starts at the threshold of

the presumption of innocence. Accusation is not, according to the
fundamental law, synonymous with guilt. It is incumbent on the
prosecution to demonstrate that culpability lies. The accused is not
even required to produce any evidence to prove his innocence. His
freedom is forfeited only if the requisite quantum of proof necessary for
conviction (or for issuance of warrant of arrest) be in existence. There
is a need for the most careful scrutiny of the evidence produced by the
State, independently of whatever defense is offered by the accused.
Every circumstance favoring the innocence of the accused should be
duly taken into account. The strongest suspicion must not be
permitted to sway judgment. The conscience of the court must be
satisfied that ONLY on the accused the responsibility for the crime
could be laid. (Liberal paraphrase by the Defense of the teaching in
People vs. Dramayo, 42 SCRA 60.)

The basic principle of fair play and justice demand that the
accused should not be allowed to cower and suffer the cold corners of
the prison cell for even a single minute based on mere conjectures.
The true and real players in the commission of the crime are presently
at large. The Defense could definitely and certainly declare without
batting an eyelash that none of the accused had any participation in
the crimes for which they are being sought to be prosecuted and
punished.

If the blood of the victims cry to the highest heavens for

retribution, surely, the soul and spirit of the innocent, like the roar of
a lion, will rouse God in His holiest sanctum. Yes, justice must be

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served but not at the expense of an innocent person. To sacrifice the
blood of an innocent person in the altar of justice would certainly not
please and be acceptable to the Supreme Judge of all men.

PRAYER

WHEREFORE, premises considered, accused most respectfully pray

that the records of these cases BE REMANDED to the Office of the City
Prosecutor for the conduct of RE-INVESTIGATION and pending conduct and
completion of the same, for the Honorable Court to hold in abeyance the
determination of probable cause relative to the issuance of warrant of arrest
Other equitable reliefs are likewise prayed.
Respectfully submitted: 09 October 2012, Quezon City.

The Law Firm of

LAPENA VILLANUEVA
MANZANO & ASSOCIATES
Counsel for the Accused
3rd Flr., Senor Ivan de Palacio Bldg.
No. 139 Malakas St., Central Diliman, Q.C.
Telefax: 920-47-10; 453-01-12

By:
DANNY F. VILLANUEVA
PTR No. 1197070/1.12.09/Q.C.
IBP No. 751900/1.13.09/Q.C.
Roll No. 47292
MCLE Compliance II-0009993, Jan. 26, 2009

Copy furnished and Notice of Hearing:

Hon. Trial Prosecutor

Office of the City Prosecutor Received:________________
4th flr., Hall of Justice, Q.C.

Hon. Clerk of Court

RTC-222, Q.C.

Greetings!
Kindly submit the above matter to the Honorable Court for its
disposition immediately upon receipt hereof. This also serves as notice to the
Prosecution that the Defense will submit the Motion for the approval of the
Honorable Court on October 15, 2012 at 9:00 o’ clock in the morning without
further oral argument.

DANNY F. VILLANUEVA


Justice Nicolas P. Lapena, Jr. has taken an indefinite leave of absence from the Firm in view of his appointment as
Chair person of the Professional Regulation Commission (PRC).