Republic of the Philippines

MUNICIPAL TRIAL COURT IN CITIES

Fourth Judicial Region
Branch I
Bulwagan ng Katarungan Annex
Pallocan West, Batangas City

THE PEOPLE OF THE PHILIPPINES, CRIMINAL CASE NO. 57692

Plaintiff,
-versus - for

MARLITO BINAY y Dimalapitan,

VICTOR MAGUNDAYAO y Magtibay VIOLATION OF SEC. 1
And GUADALUPE DAPULA y Marasigan, OF PRESIDENTIAL
DECREE
Accused. NO. 1602
(ILLEGAL GAMBLING)
X -------------------------------------- X

ACCUSED TRIAL MEMORANDUM

Accused, through counsel, most respectfully alleges:

PREFATORY STATEMENT

On June 2, 2014 , Accused Merlito, Victor, Rodel and Guadalupe were

charged before the Municipal Trial Court of the violation of Sec. 1 of
Presidential Decree No. 1602 in an information, the pertinent portion of
which reads:

That on or about May 31, 2014 at around 2:30 in the afternoon at

Barangay Malitam 1, Batangas City, Philippines and within the
jurisdiction of this Honorable Court, the above named accused,
conspiring and confederating together, did then and there, knowingly,
wilfully and criminally take part directly as players in the illegal game
called “mah-jong”, a game of chance not authorized by law, the result of
said prohibited game being wholly dependent upon chance or hazard, it
not having played as parlor game or for home entertainment”

STATEMENT OF FACTS:

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In order that this honorable court may be enlightened and guided in the
judicious disposition of the above-entitled case, cited hereunder the
material, relevant and pertinent facts of the case to wit:

1. Accused are Marlito Binay, legal age,barber; Victor Magundayao,

legal age, barker; Rodel Marasigan, legal age, and Guadalupe Dapula,
legal age, fisherman. They are all residents of Brgy. Malitam 1,
Batangas City.

2. Accused have been neighbors for at least three (3) years. The four
accused alleged that on or about 12 noon of May 31, 2014, while they
were at the house of Guadalupe Dapula, they agreed to play "mahjong"
in a "laro-laro lamang" or as an entertainment while they were waiting
for the fish to be cooked which they requested from the latter for viand.
3. Just before the incident happened, Marlito Binay went home from his
barbershop to eat lunch, however, there was no food cooked yet in his
house so he went out to buy, until he reaches Guadalupe's house and
smelled the fish that he is cooking. He then asked for some and Lupe
agreed.

4. Meanwhile, Victor came by, also from work as barker, and when he
saw Marlito, he asked what he is doing in the house of Lupe, and the
latter answered he is requesting for a share of fish that he is cooking.
Victor then was delighted and also asked from Lupe some, and the latter
also agreed.

5. Because the fish was not yet cooked, Lupe invited the Marlito and
Victor to play mahjong with him while they are waiting for the fish to be
cooked, and the two agreed. After a while, Rodel arrived asking Lupe for
a screw driver, and the latter said he had none, and then he also invited
Rodel to play mahjong with them, which initially he declined, but when
they said it's just for fun with no consideration, he afterwards joined
them. Lupe asked Rodel to close the door because his granddaughter
might go out.

6. The four accused have just started playing, when all of sudden,
someone kicked the door. P01 John Kenneth Badiola Bay and P01
Reynaldo Mendoza who were on civilian clothes and without any search
and arrest warrant entered his house and asked them to freeze. They
informed the accused that what they are doing is illegal since it is a form
of gambling. Marlito and Victor tried to explain that they are not
gambling because they are just playing it for past time and
entertainment as neighbors while they are waiting for the fish to get
cooked. In fact there was no consideration or money involved. No
pictures of money were taken inside the house by the Police.

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 7. The two policemen got mad and they handcuffed Marlito and Victor,
while Lupe and Rodel were merely looking afraid to get handcuffed too.
The latter was asked to fix the mah-jong dice and playset and after a
while the four of them were all brought to the Municipal Hall through
the Police Mobile,

8. In the municipal hall, the four accused were taken pictures and affixed
their marks in the police blotter and information report. The wallets of
Marlito and Victor were taken by the Police and together with the mah-
jong set, they were all marked. After an hour, they were brought back to
the house of Guadalupe.

9. At the house of Lupe, the four accused were asked to sit down around
a mah-jong table and the Police put the mah-jong set on top and pictures
were taken. The four were brought back again to the Police Station were
Victor and Marlito were put in jail, while Lupe and Rodel were not
ordered release so they stayed. Lupe was bailed that Monday.

STATEMENT OF ISSUES

1. Whether or not there is a lawful search and arrest

2. Whether or not the accused committed illegal gambling

ARGUMENTS

1. Plaintiff Police Officers committed a grave abuse and error when they
unlawfully entered the house of Guadalupe Dapula, arrested the four
accused, and took the mah-jong set and other paraphernalia from the
house of Guadalupe.

The Bill of Rights under Article III of the present Constitution

provides in part:

Sec. 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be INVIOLABLE, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge upon examination under oath or
affirmation of the complaint and the witnesses he may produce, and

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 particularly describing the place to be searched and the persons and
things to be seized.

In the instant case, the Police Officers WITHOUT A WARRANT OF

ARREST OR SEARCH WARRANT came directly to the house of
Guadalupe, kicked the door, arrested the four accused, seized the mah-
jong set and brought them to the Police Station and detained them.

An officer cannot illegally enter a suspect’s house or backyard,

and then use the plain view exception to seize paraphernalia used in
crime and then arrest the suspects.

The prosecution ratiocinated that this was a clear case of an “in

flagrante delicto warrantless arrest” under paragraphs (a) and (b) of
Section 5 Rule 113 of the Revised Rules on Procedure

Sec. 5 Arrest without warrant; when lawful – A peace officer or a private

person, without a warrant, arrest a person:

a.) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;
b.) When an offense has just been committed and he has a probable cause
to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it. And;
c.) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgement or is
temporarily confined while his case is pendingor has escaped while
being transferred from one confinement to another.
***
For the warrantless arrest under paragraph (a) of Section 5 to
operate, two elements must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is
done in the presence of or within the view of the arresting officer. On the
other hand, paragraph (b) of Section 5 requires for its application that at
the time of the arrest, an offense had in fact just been committed and the
arresting officer had personal knowledge of facts indicating that the
accused had committed it. (People v. Villareal, G.R. 201363, March 18,
2013)

In both instances the officer’s personal knowledge of the fact of

the commission of an offense is absolutely required. Under paragraph
(a), the officer himself witnesses the crime while under paragraph (b)
he knows for a fact that a crime has just been committed.

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 The factual circumstances of the case failed to show that PO1 Bay
had personal knowledge that a crime had been indisputably committed
by the defendants. On the basis of the foregoing testimony, the defense
finds it inconceivable how PO1 Bay, even with his presumably perfect
vision, would be able to identify with reasonable accuracy, from a
distance of about 8 to 10 meters, with door closed that a mah-jong game
was being conducted inside the house of Guadalupe. Without having
entered inside the house of the latter, the Police Officers could not have
a personal knowledge or plain view of the crime charged.

Their obvious reliance on just a call or information from an

UNKNOWN or UNIDENTIFIED informant made them to have responded
as such. Even granting arguendo, that the Police Officers were just
attending to their duties, they cannot just perform their obligations in
an arbitrary or capricious manner, as in this case, without applying first
for a search warrant, or at least have PERSONAL KNOWLEDGE, to justify
a lawful warrantless search.

Thus, while it is true that the legality of the arrest depends upon the
discretion of the officer or functionary to whom the law at the moment
leaves the decision to characterize the nature of the act or deed of the
person for the urgent purpose of suspending his liberty, it cannot be
arbitrarily or capriciously exercised without unduly compromising a
citizen’s constitutionally-guaranteed right to liberty. ( People v. Tutud)

When they unconsentedly and without search warrant entered

the house of Guadalupe, they, in fact committed VIOLATION OF
DOMICILE under the Revised Penal Code.

Art. 128 Violation of Domicile – The penalty of prision correctional in its

minimum period shall be imposed upon any public officer or employee
who, not being authotized by judicial order, shall enter any dwelling
against the will of the owner thereof, search papers or other effects found
therein without previous consent of such owner xxx

Absence of personal knowledge and the crime not having been

committed within their plain view, IN FLAGRANTE DELICTO as
justification for a warrantless arrest conducted by the Police Officers is
unwarranted.

It is well to remember that in the instances we have recognized as

exceptions to the requirement of a judicial warrant, it is necessary that
the officer effecting the arrest or seizure must have been impelled to do so
because of probable cause. The essential requisite of probable cause must

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be satisfied before a warrantless search and seizure can be lawfully
conducted. Without probable cause, the articles seized cannot be admitted
in evidence against the person arrested. (People v. Mariacos, G.R. No.
188611, June 16, 2010)

Probable cause is defined as a reasonable ground of suspicion

supported by circumstances sufficiently strong in themselves to induce
a cautious man to believe that the person accused is guilty of the offense
charged. It refers to the existence of such facts and circumstances that
can lead a reasonably discreet and prudent man to believe that an
offense or subject to seizure and destruction by law are in the place to
be searched.

In the instant case, petitioners from their testimony imply that the
absence of a search warrant and warrant of arrest was because the
crime scene where the defendants played mah-jong cannot be
considered as a “house”, as stated under the testimony of PO1 Reynaldo
Mendoza.

ATTY. GARCIA
Q: It is correct to state that when you went there, you did not bring any
search warrant?
A: It is not a house the reason why I was not in a possession of a search
warrant Sir.
Q: And how do you describe the house, Mr. Witness?
A: The house is close, with doors, with walls and windows, while the
other is only a fence, Sir,
Q: But again, you did not bring any search warrant because it is not a
house?
A: Yes Sir.

From the above statements, it can be gleaned that the information

obtained by the Police Officers from an unidentified source was the
existence of gambling in the HOUSE of Guadalupe. On the contrary, it
can be inferred from the testimonies of the accused that the place where
the mah-jong was played was surrounded with fence, with a door and
windows, and where in fact, the children of Guadalupe were inside.

An excerpt from the testimony of PO1 Reynaldo:

THE COURT:
Q: And you said you played in the house?
A: Yes, your honor.
Q: Was the door closed?
A: Yes your honor.

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Q: Were the windows closed?
A: Actually there was no window, but there was a “siwang” for about
two palms span, your honor.

An excerpt from the testimony of PO1 Bay:

ATTY. GARCIA
Q: So, this fence of Ka Lupe, I presumed aside from the fence, the house
has a door, is that correct?
A: Not exactly a door but is like a gate, bamboo fence.
Q: So there was a gate?
A: Yes Sir.
Q; Will you agree, Mr. Witness, that you arrested all the accused inside
the house of Ka Lupe Dapula?
A: Not exactly inside the house of Ka Lupe, Sir. It is not exactly inside the
house but it is somewhat a garage with roofing.

A house is defined as a building with four sides, a roof, doors and

windows. It may also be inside a fenced backyard which is already
considered as part or dependencies of a house. An inhabited house
under the Revised Penal Code is described as the following:

Art. 301 What is an inhabited house xx

Inhabited house means any shelter, ship or vessel constituting the

dwelling of one or more persons xxx

All interior courts, corrals, warehouses, granaries, barns, coach-

houses, stables or other departments, or inclosed places contiguous to the
building or edifice, having an interior entrance connected therewith and
which form part of the whole, shall be deemed dependencies of an
inhabited house, public building, or building dedicated to religious
worship.

The mere fact that the Police Officers entered through a closed
door/ fence, the officers are mistaken that warrant of arrest or search
warrant is no longer needed, since in-flagrante de licto is not applicable
in the case.

The right of a person to be secure against any unreasonable

seizure of his body and home and any deprivation of his liberty is a most
basic and fundamental one.

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2. Defendant did not commit illegal gambling

PD 1602 which repealed the Philippine Gambling Laws under

Articles 195-199 of the Revised Penal Code enumerates the stiffer
penalty and the persons who can be charged of Illegal Gambling.

(a) The penalty of prison correccional in its medium period of a fine

ranging from one thousand to six thousand pesos, and in case of
recidivism, the penalty of prision mayor in its medium period or a
fine ranging from five thousand to ten thousand pesos shall be
imposed upon:
1. Any person other than those referred to in the succeeding sub-
sections who in any manner, shall directly or indirectly take part in
any illegal or unauthorized activities or games of cockfighting,
jueteng, jai alai or horse racing to include bookie operations and
game fixing, numbers, bingo and other forms of lotteries; cara y
cruz, pompiang and the like; 7-11 and any game using dice; black
jack, lucky nine, poker and its derivatives, monte, baccarat, cuajao,
pangguingue and other card games; paik que, high and low,
mahjong, domino and other games using plastic tiles and the likes;
slot machines, roulette, pinball and other mechanical contraptions
and devices; dog racing, boat racing, car racing and other forms of
races, basketball, boxing, volleyball, bowling, pingpong and other
forms of individual or team contests to include game fixing, point
shaving and other machinations; banking or percentage game, or
any other game scheme, whether upon chance or skill, wherein
wagers consisting of money, articles of value or representative of
value are at stake or made.

Gambling games refer to any game or scheme whether upon

chance or skill, wherein wagers consisting of money, articles or vale or
representatives of value are made. Gambling thus requires three
elements be present: consideration, chance and price. It is the fact
that bets are made which makes the game a gambling game.
(Equitable Loan Company v. Waring )

The defendants repeatedly and consistently in their Judicial

Affidavits denied having played the mah-jong as a form of gambling, but
only as a source of entertainment, or “laro-laro lamang ng magkakapit-
bahay” while waiting for the fish to get cooked. In fact, there was no
money or consideration involved in the game, as evidenced by the
absence of proof or pictures taken at the crime scene by the Police
Officers.

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 An excerpt from the Judicial Affidavit of Victor Magundayao:
28. T. Sinabi mo na hindi kayo nagsusugal. Ano ang iyong katunayan na
hindi kayo nagsusugal?
S. Hindi naman po talaga kami nagsusugal. Niyaya lamang kame ni
Lupe na maglaro at wala rin po kaming taya o pusta. Xxx

29. T. Ayon sa mga pulis ay may nakuhang taya o pusta mula sa inyo.
Ano ang masasabi mo rito?
S. Hindi poi to totoo. Wala pong nakuhang pera na taya o pusta sa
bahay ni Lupe. Wala pong larawan sa loob ng bahay ni Lupe na
magpapakita na maya nakuhang pera sa amin bilang taya. Kinuha po
ang wallet ni Marlito at kinuha rin ang aking barya sa istasyon ng pulis.
Maliwanag rin po sa sinabi ng pulis na sa istasyon ng pulis minarkahan
ang nasabing pera. Kung mayroon po sanang nakuhang taya ayon sa
sinasabi ng pulis, dapat sana ay minarkahan nila sa bahay ni Lupe.

A close examination of the record shows that there was indeed

some IRREGULARITIES IN OBTAINING EVIDENCES in the house of one
of the accused Guadalupe.

1. There was no blotter in the Police Station of the said report on illegal
gambling by a concerned UNIDENTIFIED PERSON.
2. The accused were unlawfully arrested inside a domicile without a
warrant of arrest.
3. No evidence to show that money was taken inside the house of
Guadalupe as actual proof that there was indeed bet or money
considerations in the said gambling.
4. The pictures of the accused with the mah-jong set, was captured only
after they have been arrested and brought to the Police Station. They
were brought back to the house of Guadalupe for the taking of pictures
as evidences.

An excerpt from the re-cross examination of PO1 Bay, by Atty.

Garcia:

Q: And according to you, there was a call to your office that there is a
certain gambling happening in Barangay Malitam 1, is that correct?
A: Yes Sir.
Q: Have you caused the blotter of this incident in your police station?
A.No Sir.

According to the Judicial Affidavit of Guadalupe Dapula:

22. T. Ayon sa mga pulis ay may nakuhang taya o pusta mula sa inyo.
Ano ang masasabi mo rito?

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 S. Hindi po ito totoo. Wala naman pong nakuhang pera sa loob ng
aking bahay bilang taya. Walang larawan na katunayan na may
nakuhang pera sa loob ng aking bahay bilang taya. Sinabi rin ng isang
pulis na sa istasyon ng pulis minarkahan ang diumanong pera na taya
raw sa pagsusugal. Ang alam kop o ay kinuha ang wallet ni Marlito
noong nasa istasyon na ito.

25. T. Ano ang nangyari sa munisipyo?

S. Nilitratuhan po kame at pinagdiit.
26. T. Ano pa ang nangyari sa munisipyo, kung mayroon man?
S. Pinasakay po ulet kame ng sasakyan at ibinalik sa bahay ko sa
Malitam.
27. T. Ano ang inyong ginawa sa bahay nyo ng ibalik kayo?
S. Pinaupo po kaming apat doon sa lamesa at inilagay ang petsas
ng mah-jong at nilitratuhan.
28. T. Matapos na kayo ay litratuhan, ano ang sumunod na nangyari?
S. Pinosasan po ulet sina Victor at Marlito at kami ay dinala ulet sa
Munisipyo.

There being the ABSENCE of the three essential elements to

constitute the game as ILLEGAL GAMBLING, the four accused must
therefore be acquitted.

And even granting arguendo that mah-jong set and money as

consideration were retrieved from the crime scene, stil, there being no
lawful warrantless arrest, those seized from the defendants are
rendered inadmissible in evidence for being the proverbial fruit of the
poisonous tree. As the money and the mah-jong set is the very corpus
delicti of the crime charged, the accused must be acquitted and
exonerated from the crime charged

PRAYER

WHEREFORE, it is respectfully prayed for of this Honorable Court

that judgment be rendered acquitting the accused from the crime
charged.

Defendants likewise prays for such other and further relief as this
honorable court may deem just and equitable in the premises.

Batangas City, Philippines, September 27, 2015.

SHYRELL C. ABELO

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 Assistant City Prosecutor
MCLE Compliance No. IV-0010850 November 4, 2014
Roll No. 47299

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