REPUBLIC OF THE PHILIPPINES

SUPREME COURT
Manila

ENRIQUE SOBERANO, DANIEL BERNARDO,

MATTEO GERONIMO, and JAMES LUSTRE,
Plaintiff,

G.R. No. 00001

FOR: REVIEW ON CERTIORARI

- versus-

PEOPLE OF THE PHILIPPINES,

respondent.
x--------------------------------------------------/

MEMORANDUM
(For the Prosecution)

The State, through the undersigned and unto this Honorable

Court, most respectfully states, thus:

PREFATORY STATEMENT

It has been said that the greatest loss a human being can
experience is the loss of a child, and the most intense grief known is
that of a grieving mother.

This loss is made even more tragic when attended with such
violence and senselessness, that closure for such death cannot
immediately be achieved.

The only consolation that a grieving family can hold in their hearts
the fervent wish that their painful yearnings for justice will eventually
be satiated by the conviction, and consequent incarceration, of the one
truly responsible death of their loved one. (No citation, needs
jurisprudence)
 STATEMENT OF THE CASE

This is a case on Review for Petition on Certiorari against the

Republic of the Philippines, et. al.

STATEMENT OF FACTS

This case involves the commission of the crime of Murder, as

defined and punished under article 248 of the Revised Penal Code.

The four petitioners are miners. Early in May, the company of

Gerald Barreto penetrated into the cavern in the mountainous areas of
Sitio Kalunasan, Guadalupe, Cebu City. A landslide occurred while the
company was inside which completely blocked the only known exit to
the cave.

An extensive rescue mission was conducted but proved to be

unsuccessful after several attempts due to devastating landslide. In dire
efforts, rescuers lost their lives.

On the 20th day of isolation, the miners asked the rescuers how
long will they be saved. Gerald, in behalf of the miners, asked by radio
the members of the rescue team if they would be able to survive if they
consumed they flesh of one of them.

On the 23rd day, it was learned by the rescue team that Barreto had
been killed and brutally cannibalized by his companions.

ISSUES

I. WHETHER OR NOT THE PETITONERS ARE GUILTY OF THE CRIME

OF MURDER

Note: Elements of Murder (Art 248. of RPC)

 ARGUMENT/DISCUSSION

I. The answer is in the NEGATIVE.

In the case of Imbong vs. Ochoa, this Court stated:

“The court does not duly recognize it as a legal basis for

upholding or invalidating a law. Our only guidepost is the
Constitution”

II. The answer is in the AFFIRMATIVE.

Article 248 of the Revised Penal Code provides, thus:

“Art. 248. Murder. – Any person who, not falling within

the provisions of article 246, shall kill another, shall be
guilty of murder xxx, if committed with any of the
following attendant circumstances:

1. With treachery xxx;

xxx

2. With evident premeditation;

xxx xxx”

The elements of Murder are (1) that a person was killed, (2) that
the accused killed him, (3) that the killing was attended by any of the
qualifying circumstances mentioned in article 248 of the Revised Penal
Code, and (4) that the killing is not parricide or infanticide.

III. The answer is in the NEGATIVE.

Necessity must be reasoned in the following
 EVIDENCE FOR THE PROSECUTION

The prosecution was able to present the mother of the victim,

LYSIEL FUENTES ALGABRE, who testified, among others, that her son’s
live-in partner, GEMARIE CABUSAS, told her that it was accused herein
who shot her son because she (GEMARIE) saw him walking away from
the scene of the crime with a gun.

The prosecution was also able to present GEMARIE CABUSAS,

notably the niece of accused herein, who testified under oath that (1)
she saw the victim and the accused talking behind the alley where he
was killed, just minutes before his death; (2) there was nobody else
there, save for the victim and the accused in this case, as said area was
deserted, and (3) immediately after she heard a gunshot, she rushed
back to the scene of the crime and was able to see the victim lying face-
down on the ground, with blood all around him, and the accused in this
case, walking away from the area with a gun in his hand.

The prosecution presented police officers PO3 PABLO and PO3

CHIONG, both of whom testified that, per investigation from people in
the area as well as of the victim’s live-in partner, it was accused herein
who was responsible for the death of the victim in this case.

They also testified that accused herein fled from his residence, and
was nowhere to be found after the incident, which prompted police
operatives to file a case for Murder against him (accused) before the
OCP-Talisay.

It was only when the case was resolved against accused herein,
and a warrant of arrest eventually issued for his capture, that he was
cajoled by his own father into surrendering.

The prosecution, for its last witness, presented DR. NESTOR

SATOR, the medico-legal officer who conducted the autopsy on the
victim in this case. He testified that, based on the trajectory of the
bullet, and the wound suffered by the victim, the latter could only have
been shot in a treacherous manner.

In this case, since the fatal wound was located at the temporal
region of the victim, the assailant could only have (1) placed his arm
around the victim’s neck and shot him in his temple from behind, or (2)
called out to him while the victim was walking away and, while the latter
was in the process of turning around, the assailant immediately shot the
victim in his temple mid-turn.
ISSUES

This memorandum will discuss only one issue:

Whether or not accused is guilty for having committed the crime

of Murder.

ARGUMENT AND DISCUSSION

The answer is in the AFFIRMATIVE.

Article 248 of the Revised Penal Code provides, thus:

“Art. 248. Murder. – Any person who, not falling within

the provisions of article 246, shall kill another, shall be
guilty of murder xxx, if committed with any of the
following attendant circumstances:

3. With treachery xxx;

xxx

4. With evident premeditation;

xxx xxx”

The elements of Murder are (1) that a person was killed, (2) that
the accused killed him, (3) that the killing was attended by any of the
qualifying circumstances mentioned in article 248 of the Revised Penal
Code, and (4) that the killing is not parricide or infanticide.

In the case at bar, the prosecution has been able to successfully

prove the above-mentioned elements.
FIRST AND LAST
ELEMENTS PRESENT

As to the first element (a person was killed), the prosecution was

able to formally offer, as part of its documentary evidence, the death
certificate of the victim JOSEPH KARL FUENTES ALGABRE.

Likewise, the mother of the victim, LYSIEL FUENTES ALGABRE,

identified such Death Certificate and confirmed the death of her son.

As to the last element, there is no relationship or special

circumstance between the victim and the accused that would qualify the
case to one of parricide or infanticide.

SECOND ELEMENT
PRESENT

As to the second element, there is no doubt that it is accused

herein who killed the victim in this case.

As testified to by prosecution witness GEMARIE CABUSAS, while

she and the victim were having dinner inside their house, accused
herein suddenly appeared by their window and asked the victim to
come out.

Also, as testified to by witness GEMARIE CABUSAS, both victim

and accused proceeded to a small alley located near their house in order
to “talk”. This area was also the place where the victim’s body was
found.

Lastly, as testified to by witness GEMARIE CABUSAS, when she

heard the gunshot, she rushed to the scene of the crime and saw the
victim lying face-down on the ground, and the accused walking away
from the area with a gun in his hand.

In other words, witness GEMARIE CABUSAS personally saw the

accused herein walk away with a gun in his hand just moments after the
victim was shot. Even prior to such shooting, no other person was seen
with the victim, other than the accused herein.

Witness GEMARIE might not have seen the accused shoot the
victim, but the fact that she testified that (1) the victim was last seen
with the accused just moments before he was shot, and (2) the accused
was seen by her walking away from the scene of the crime, with a gun in
his hand, just moments after the victim was shot, are more than enough
to prove, without a shadow of a doubt, that accused herein is
responsible for the death of the victim.

In sustaining a conviction based on circumstantial evidence, the

circumstances proven must constitute an unbroken chain which leads to
one fair and reasonable conclusion that points to the accused, to the
exclusion of all others, as the guilty person.1

Clearly, the circumstances all point to no other conclusion, other

than that the accused killed the victim in the instant case.

NO ULTERIOR
MOTIVE

Accused was never able to put to question the categorical and

straight-forward testimony of witness GEMARIE CABUSAS. He was
never able to impute any kind of ill-motive or grudge on witness
GEMARIE CABUSAS, which would cause her to falsely tag him as being
the perpetrator of the crime.

In fact, when asked during his cross-examination about his

relationship with the witness, accused said that they did not have any
prior fight with each other.

It is also highly important to note that witness GEMARIE CABUSAS

is the niece of accused herein.

Hence, not having any malicious ulterior motive to propagate,

the testimony of witness GEMARIE CABUSAS against her blood

1
Espineli vs. Espineli; G.R. No. 179535; June 9, 2014.
relative, accused herein, could only be driven by her dire and honest
need to seek justice for the death of her live-in partner.

FLIGHT OF ACCUSED

The prosecution witnesses, PO3 Chiong and PO3 Pablo, likewise

testified, among others, that the accused fled immediately after the
incident, and was nowhere to be found.

If indeed accused is as innocent as he claims to be, then there

would have been no rhyme or reason for him to flee, for an innocent
man will face even the harshest of charges, if only to prove his
innocence; while a guilty man’s first instinct is to run.

Additionally, the Supreme Court, in the case of People vs. Emetrio

Medina y Damo2, had this to say about the flight of an accused, thus:

“Flight is an indication of guilt. The flight of an accused,

in the absence of a credible explanation, would be a
circumstance from which an inference of guilt may be
established for a truly innocent person would normally
grasp the first available opportunity to defend himself
and assert his innocence.”

Accused fled. He was given all the opportunity to explain such

flight, but never proffered even the slightest explanation.

Such circumstance, perforce, must be taken against him.

THIRD ELEMENT OF
QUALIFYING
CIRCUMSTANCES
PRESENT

On the third element, evident premeditation and treachery were

present when the victim was killed.

TREACHERY

2
G.R. No. 214473; June 22, 2016.
 According to the Supreme Court in the case of People vs. Aguilar 3,
the killing of the victim is qualified with treachery when the shooting
was sudden and unexpected, and the victim was not in a position to defend
himself.

In the case of People vs. Catipon, the Supreme Court likewise said
that treachery is present when the shooting of the victim xxx is sudden and
unexpected to the point of incapacitating the victim to repel or escape it.
Yet again, in the case of People vs. Dela Cruz 4, the Supreme Court
has also ruled, thus:

“There is treachery when the offender commits any of the

crimes against persons, employing means, methods, or
forms in the execution, which tend directly and specially
to insure its execution, without risk to the offender
arising from the defense which the offended party might
make. The essence of treachery is that the attack comes
without a warning and in a swift, deliberate and
unexpected manner, affording the hapless, unarmed and
unsuspecting victim no chance to resist or escape. For
treachery to be considered, two elements must concur:
(1) the employment of means of execution that gives the
persons attacked no opportunity to defend themselves or
retaliate; and (2) the means of execution were
deliberately or consciously adopted.”

In the case at bar, Dr. Nestor Sator, the medico-legal officer who
conducted the autopsy on the victim, categorically testified in court that,
based on the trajectory of the bullet and the location of the wound, the
victim could have only been shot (1) when he had his back already
turned, and the assailant reached out from behind and shot the victim in
his right temple, or (2) when the victim already had his back turned, and
the assailant called out to him, which caused the victim to turn around,
and was immediately shot from behind while executing a mid-turn.

Yet, whatever the situation, it is clear that the killing of the victim
was certainly sudden and unexpected, and that he had no means of
defending himself. Such means, method or form of attack was

3
88 Phil. 693.
4
G.R. No. 188353; 16 February 2010; 612 SCRA 738.
consciously adopted by the accused, which clearly qualifies such killing
to one of Murder.

EVIDENT
PREMEDITATION

Another circumstance that would qualify the killing to Murder is

that the same was clearly and evidently premeditated.

During the testimony of witness GEMARIE CABUSAS, she

categorically stated that, while they were having dinner, accused
appeared and called for the victim to come out so they could “talk”.

Clearly, accused already had the attack planned even before he

sought the victim out, because the former carefully chose means and
methods in order to ensure the success of his plan – (1) he pretended to
have a “talk” with the victim in order to lower the latter’s guard, (2) he
ensured that such talk would happen not in open view, but in a narrow
alley that would shield them from public sight, and (3) he already
brought a gun with him.

These circumstances, when taken together, clearly reveal that

accused had already planned such attack, and even formulated means
and methods to ensure the success thereof.

ALIBI AND DENIAL

A WEAK DEFENSE

Accused denies the instant charge, and insists that he was in his
house in Pardo, Cebu City, when the incident happened. But for the
defense of alibi to prosper, the accused must prove not only that he was
at some other place at the time the crime was committed, but that it was
likewise impossible for him to be at the locus criminis at the time of the
alleged crime.5

In the case at bar, assuming ex gratia argumenti that accused was

indeed in his other residence located at Pardo, Cebu City, the latter
5
People vs. Malones, 469 Phil. 301; People vs. Libo-on, 410 Phil. 378, People vs.
Marquez, 400 Phil. 1313.
residence and his residence in Talisay are not so situated that it would
have been impossible for the accused to be at the scene of the crime. In
fact, either residence can easily be reached via any land transportation
within five (5) to ten (10) minutes.

Besides, such denial cannot prevail over the categorical and

positive identification and assertions of the prosecution witnesses,
particularly GEMARIE CABUSAS, that it was accused herein who shot the
victim.

WITNESS OF ACCUSED
PROVES NOTHING

The witness for the defense, the neighbor of the accused, testified
that she was inside her house when the shooting occurred, and that
when she went out, she only saw the victim lying on the ground, with
accused nowhere to be seen.

Yet, when such witness was cross-examined, she admitted that she
went outside only after five (5) minutes had passed from the time she
heard the gunshot, which clearly afforded the accused ample time to run
away without being seen by the witness.

Besides, a statement that she “did not see accused after the
gunshot” is not synonymous with the accused not being there at all, or
that he was not the one who pulled the trigger.

This witness likewise stated that accused did not anymore live in
his house in Talisay City when the incident occurred, as he already
resided in his other residence in Pardo, Cebu City. Yet, during her cross-
examination, such witness admitted that the same is not entirely true, as
the accused goes back and forth both residences from time to time.

Seeing the error of her ways, such witness pathetically attempted

to rehabilitate her own testimony during re-direct examination that the
accused was not present in Talisay City when the incident occurred, but
said witness failed to explain to this Honorable Court how she can know
the exact whereabouts of the accused every minute of everyday.
 The mere fact that the accused buys vegetables and other food
items from her store whenever he visits Talisay, according to the
witness, is not sufficient basis for her to make such conclusion. It is such
a huge leap in logic that the same merits the scant consideration of this
Honorable Court.

LAST WORD

The truth of the matter is, the accused killed the victim in cold
blood. In order to ensure the success of his evil plan, accused employed
means and methods that were meant to take the victim by surprise, and
that no resistance could ever be proffered by him.

Accused denies this charge and insists that he was in another

place when the incident happened, but he failed to prove the physical
impossibility of his presence in the area during such date and time.

His witnesses, his live-in partner and neighbor, likewise fail to

prove the physical impossibility of the presence of the accused in the
area when the incident happened.

Accused has not been able to impute any kind of ill-motive or ill-
will on the part of the prosecution witnesses, particularly his niece,
GEMARIE CABUSAS.

Hence, without a shadow of a doubt, accused committed the

above-mentioned crime, as proven by the witnesses and evidence for
the prosecution.

The State prays that he be punished accordingly – that justice be

served, though the heavens may fall.

WHEREFORE, premises considered, the undersigned fervently

prays that this Honorable Court CONVICT accused for the commission
of the crime of MURDER, his guilt having been established by the
prosecution beyond reasonable doubt.

Other reliefs, just and equitable, are likewise prayed for.

 MOST RESPECTFULLY SUBMITTED.

Talisay City, Cebu, Philippines, 18 October 2017.

MARIA ALICE COROMINAS LIM-INGLES

Associate Prosecution Attorney II
Office of the City Prosecutor
Talisay City, Cebu

THE CLERK OF COURT

RTC, Branch 16

GREETINGS!

Please submit the foregoing Memorandum for the consideration and

approval of the Honorable Court immediately upon receipt thereof.

MARIA ALICE COROMINAS LIM-INGLES

Copy Furnished:
Atty. Caesar Gariando
Public Attorney’s Office (PAO)
Capitol, Cebu City