Republic of the Philippines

REGIONAL TRIAL COURT

Second Judicial Region
Branch 22
Cabagan, Isabela

PEOPLE OF THE PHILIPPINES, Crim. Case Nos. 22-4072

Plaintiff.
-versus- for:

JOANVEY G. GARDON QUALIFIED

THEFT Accused.

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PREFATORY STATEMENT

“The correct identity of the person of the accused or any person in

criminal cases is very vital. Court are called upon and mandated strictly
to see to it that data/entries in the return of the Warrant are consistent
with the description of the person named as accused in the Information
with the aim that no person be just arrested or incarcerated for
whimsical reason.”

OMNIBUS MOTION TO QUASH INFORMATION FOR LACK OF

JURISDICTION

ACCUSED, by the undersigned counsel, unto this Honorable Court,

most respectfully avers THAT:

1. The Accused was charged with the crime of Qualified Theft as per
information dated September 16, 2019 docketed as Crim. Case Nos. 22-4072
filed before this Honorable Court quoted as follows:

“ That sometime on June 2017 to July 2018, in the Municipality of

Tumauini, Province of Isabela, Philippines and within the jurisdiction
of this Honorable Court, the said accused being then employed and
tasked to collect and remit his collection as Development Officer at Five
Star Multi purpose Cooperative, Tumauini, Isabela Branch with intent
to gain and without knowledge and consent of the owner, did, then and
there, willfully, unlawfully and feloniously, take, steal, and bring away
their cash collections amounting to Forty One Thousand To Hundred
Pesos (Php 41, 210.00), to the damage and prejudice of the owner
Alejandro A. Pascual in the aforesaid amount 0f (Php41,210.00).

“CONTRARY TO LAW.” – (underscoring supplied)

GROUND/S FOR THE MOTION TO QUASH:

 With all the highest respect, the erroneously arrested person
JOHNVEY GUINGAB GARDON respectfully file this present Motion to
Quash based upon the following;

Grounds
I

THE MOVANT JOHNVEY GUINGAB GARDON IS NOT THE

ACCUSED JOANVEY G. GARDON OR THE LATTER’S ALIAS.

II

THERE IS TOTALLY NO BASIS TO ADD OR CORRECT TO THE

NAME OF THE ACCUSED JOHNVEY GUINGAB GARDON (IN
THE RETURN OF THE WARRANT) IN VIEW OF THE ABSENCE
OF ANY EVIDENCE SHOWING THAT THE NAME JOANVEY G.
GARDON IS THE SAME AS JOHNVEY GUINGAB GARDON OR
THE ALIAS OF THE LATTER.

III

MOTION TO QUASH IS THE PROPER REMEDY WHEN THE

PERSON NAMED IN THE INFORMATION IS AN ENTIRELY
DIFFERENT PERSON FROM THE ONE WHO HAD BEEN
MISTAKENLY ARRESTED.

Discussion

(i) Movant Johnvey G. Gardon is not the

accused Joanvey G. Gardonot the latter’s alias.

1. The investigating Prosecutor of the Department of Justice indicted a person

named “Joanvey G. Gardon” as accused in the DOJ Resolution dated
February 5, 2010.

2. The warrant of Arrest in this case dated_____ mentioned the accused by the
name of “JOANVEY G. GARDON.”

3. The movant in this case, JHONVEY G. GARDON, however, is not accused

Joanvey G. Gadon. The latter is not an alias or ana.k.a of the arrested person,
movant in this case. Neither is the real name of the movant.(Attached here
is the Birth Certificate of the movant and copy of his Professional
Driver’s license and UMID Card).
 4. There is no evidence, either affidavit or otherwise from any police or
individual showing that the movant Johnvey G. Gardon and accused
Joanvey G. Gadon are one and the same person. Hence, there is totally no
basis for the police to treat and arrest JohnveyGuingabGardon on the
baseless assumption that he is the accused Joanvey G. Gadon;

5. To set the record straight, herein movant Johnvey G. Gardon, upon

presenting to him the order of arrest by the PNP Tumauini, Isabela, question
the same, claiming that he was not the person named in the warrant of arrest.
That is why the PNP Tumauini, Isabela members request him to present any
of his valid Identification Card to compare the same during the time of the
arrest. Corollary thereto, they indicated in the Return of the Warrant the
name JohnveyGuingabGardon which is blatantly different from the name
mentioned in the Warrant of Arrest. He is even unaware to the information
filed against one Joanvey G. Gardon nor filed any counter affidavit in
relation thereto because he is not the same person indicted in the same case.
On the contrary, Movant JohnveyGuingabGardon boldly went to the Public
Attorney’s Office on November 5, 2019 for assistance regarding his arrest,
to question the same and to clear his name.

6. Due to legal impossibilities, therefore, JohnveyGuingabGardon should not be

treated as accused Joanvey G. Gardon. More importantly, there is no
Complaint- Affidavit; affidavit of any witness or any other evidence for that
matter, showing that herein Movant Jhonvey G. Gardon and the Accused
Johnvey G. Gardonis one (1) and the same person. Neither is there any
affidavit of any witness or any other evidence for that matter, showing that
the alias of the accusedJoanvey G. Gardon is Johnvey G. Gardon and vice
versa. Such being the case, it was highly irregular for the police to have
appended the name Johnvey G. Gadron to the name of the accused Joanvey
G. Gadon in the return of the Warrant for lack of legal and factual bases.

7. As shown by the un-rebutted evidence on record. Movant Johnvey G. Gadon

is not the same as Joanvey G. Gadon. Hence, all orders and other processes
issued againstJohnvey G. Gadon in connection with this case should be
quashed as law, justice and equity mandate.

(ii) There is totally no basis to add or

Correct into the name of the accused
JohnveyGuingabGardon(in the Return
Of the Warrant) in view of the absence of
Any evidence showing that the name
Joanvey G. Gardon is the same as Johnvey
 GuingabGardon or the alias of the latter.

8. As shown by the records, movant “JOHNVEY GUINGAB GARDON” is

not the “JOANVEY GUINGAB GARDON” who is the accused in
connection with the crime of Qualified Theft and who is the person named in
the DOJ’s Information and Warrant of Arrest. This is the very reason why
the accused boldly went into the Public Attorney’s Office at the time of
arrest to question the same and clear his name.

9. While the accused is being arrested on November___ 2019, he presented his

Driver’s License ID, UMID ID, and even his Certificate of Live Birth and
among other documents to show that “JohnveyGuingabGardon” is not the
accused “Joanvey G. Gardon whom the police arrested in connection with
the crime of Qualified Theft.

10.The return of the Warrant by the police which illegally added the name
“Johnvey G. Gardon” which is not found in the information or the Order of
Arrest should be struck down as void. These downright illegal and null
processes of committing innocent individuals to prison without any basis at
all and without them being particularly identified by witnesses, send a very
chilling effect to the citizens of the Philippines;

11.If this happened toJohnveyGuingabGardonwho is not evidently not the

accused Joanvey G. Gardon named in the Information and in the Order of
Arrest, what would prevent the police from arresting unnamed person even
if they are not the person named in the information or Warrant of Arrest, and
once under detention already, intimidate them to confess that their real
names are the supposed aliases Joanvey G. Gardon. This is a very precedent
which should be immediately stopped by this Honorable Court. Otherwise, it
will give the police, powers roving commission, not canalized within banks
to prevent them from overflowing.

12. As shown by the un-rebutted evidence above, JohnveyGuingabGardon is

not the accused Joanvey G. Gardon who (later is named in the inform,ation
and Order of Arresst). Niether is JohnveyGuingabGardon the alias of the
accused Joanvey G. GArdon. Hence, the Return of the Warrant and other
subsequent orders or processes issued by the Honorable Court against the
movant JohveyGuingabGardon in connection with this case shall annulled
and declared void.

“The correct identity of the person of the accused or

any person in criminal cases is very vital. Court are called
upon and mandated strictly to see to it that data/entries in
 the return of the Warrant are consistent with the
description of the person named as accused in the
Information with the aim that no person be just arrested or
incarcerated for whimsical reason.”

“The intrinsic right of the State to prosecute and

detain perceived transgressor of the law must be
balanced with its duty to protect the innate value of the
individual liberty.”

13. With all due respect, the Honorable Courtshould not allow itself to be
bound by what the police recommends, states or misstates in the return of
the Warrant as regards the supposed Identity or alias of the accused vis-à-vis
the identity of the person actually arrested. Otherwise, the Police can easily
pick up just anyone at their whims and caprices even in the absence of
evidence or affidavit of any witness which would verify the real identity of
the arrested person. Should this be allowed unchecked, what would prevent
the police from putting in the Return of the Warrant that the name of the
person whom they illegally arrested is the supposed alias of accused Joanvey
G. Gardon? Thus, any name can be the alias of accused joanvey G. Gardon?
And this can be easily done by the Police through the simple expedient of
affixing an alias to the name of an entirely different person even when he is
not the accused named in the information or warrant of arrest. This practice
is very dangerous and must be abhorred in due course.

14. More than anything else, Justice and reason dictates that, we should see to it
that the entries made by the police in the Return of the Warrant are
consistent with the description and identity of the accused as provided for in
the information and Order of Arrest. Otherwise stated, the Honorable Court
should ask the police to present evidence, why the police suddenly added or
inserted some name or alias in the name of the accused in the Order of
Arrest or Information even when such has not been supported by any other
evidence for that matter.

15.Prudence dictates that Police should nor deduct anything or add anything to
the name or description personae of the accused in the information or
Warrant without proper authority from the Honorable Court. Otherwise, it
would be the police and not the Honorable Court anymore who would
determine the existence of probable cause. With this unorthodox practice of
placing the cart before the horse, the police could arbitrarily determine who
to arrest and not to arrest depending on the supposed alias which the police
want to associate to any person whom they want to arrest.
16. As held by the Supreme Court in Posadas et.al., vs. The Honorable
Ombudsman, et.al G.R. No. 131492, September 29, 2000:

“To allow the arrest which the NBI intended to make without
Warrant would in effect allow them to supplant the Courts. The
determination of probable Cause that the person to be arrested,
committed the crime was for the judge to make. The law authorized a
police officer or even an ordinary citizen to arrest a criminal offender
only if the latter are committing, or just have committed a crime.
Otherwise, we cannot leave to the police officers the determination of
whom to apprehend if we are to protect our civil liberties. This is
evident from a
17.In this case, the police place JohnveyGuingabGardon in illegal arrest until
such time that the supposed name of the accused Joanvey G. Gardon became
the movant’s name, “ JohnveyGuingabGardon.” This happened even when
JohnveyGuingabGardon disclosed his real identity by presenting his Birth
Certificate and other Identification Cards.

18.We nonetheless take this opportunity to condemn the practice of law

enforcers who failing in their mission to identify and apprehended the real
malefactors, are not beyond picking on innocent parties as helpless
scapegoats for their inefficiency and incompetence. The annals of criminal
prosecutions in this and foreign jurisdictions are replete with miscarriage of
justice due to erroneous identification of suspected offenders. It is the nadir
of injustice where such miscarriage was not a product of honest error but a
downright negligence or deliberate intent.”

19.The presumption juris tantum of regularity in the performance of official

duty cannot itself prevail against the constitutionally protected right of an
individual. In People v. Cruz, 231 SCRA 759 “although public welfare is
the foundation of the power to search and seize, such power must be
exercised and the law enforced without transgressing the constitutional
rights of the citizen”. In the pursuit of criminals cannot ennoble the used of
arbitrary methods that the constitution itself abhors.

(iii) Motion to quash is the proper

Remedy when the personnamed
in the information is anentirely
different person thanthe one who
had been mistakenly arrested.
20.As aptly held by the Supreme Court in People of the Philippines vs.
Martinez et. Al., G.R. No. 105376-77.

“Furthermore, appellant was arraigned under the name of

Alexander Martinez and when arraigned under the said name he entered
his plea of “not guilty”. Appellant should have raised the question of his
identity either at the time of arraignment or by filing a demurrer based
on Court’s lack of Jurisdiction over his person, inasmuch as he was then
considered as Alexander Martinez alias Abelardo Martinez. Having
failed to do so, he is stopped from later raising the same question.”

21. More than anything else, the Honorable Court should be guided by the
principle that “it would be better to set free ten (10) men who might be
probably guilty of the crime charged than to convict one (1) innocent
man for a crime he did not commit.”

22.In line with this case and Constitutional Mandate “the right of the people to
be secure in their persons, houses 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 after examination under oath or
affirmation of the complainant and the witnesses he may produce and
particularly describing the place to search and the person of things to be
seized.”

23.In this case, the information filed and the Warrant/ Order of Arrest which
were duly issued in connection with the above entitled case do not name
“JOHNVEY GUINGAB GARDON” as the accused who was illegally
arrested. On the other hand, what the information and Warrant/ Order of
Arrest specifically name and particularly describe to be arrested by the
police is a certain “JOANVEY G. GARDON”. Hence, the Honorable Court
has no jurisdiction to proceed against “JOHNVEY GUINGAB GARDON”
due among others, to violation of this constitutional rights. This is consistent
with the ruling of the Supreme Court in People vs. Judge Tac-an, et. Al.,
G.R. No. 148000, February 27, 2003, where it held that;

“The cardinal precepts is that, where there is a violation of

basic constitutional rights, courts are ousted of jurisdiction. Any
judgment or decision rendered notwithstanding such violation
may be regarded as a lawless thing, which can be treated as an
outlaw and slain at sight or ignored.”
 In view of any or all the foregoing, the quashal of the information,
Return of the Warrant and other related orders and processes against the
movant JohnvetGuingabGardon is warranted.

24. Thus, the foregoing motion to quash.

PRAYER

WHEREFORE, foregoing premises considered, it is most

respectfully prayed unto this Honorable Court to RESOLVE the instant
omnibus motion FAVORABLY and to QUASH the Information in the
above-captioned case on the ground of lack of jurisdiction over the person of
the accused.

ACCUSED further prays for such other reliefs that are just and
equitable under the premises.
Cabagan, Isabela. November 15, 2019.

DEPARTMENT OF
JUSTICE
Public Attorney’s Office
Cabagan District Office
Cabagan, Isabela

PAUL ERIC C. TAMBOA

Public Attorney II
Cabagan, Isabela

THE HON. CLERK OF COURT

RTC-Branch 22
Cabagan, Isabela

GREETINGS:

Please include the foregoing motion in the calendar of cases of this

Honorable Court for hearing on November 22, 2019 at 2:00 o’clock in the
Afternoon.

PAUL ERIC C.
TAMBOA

NOTICE OF HEARING:

PROS. REMELYN DALAFU-TAGAO

Office of the Provincial Prosecutor
Cabagan, Isabela
GREETINGS:

Please take notice that the undersigned requested the Honorable

Branch Clerk of Court to include the foregoing motion in the calendar of
cases of this Honorable Court for hearing preferably on November 22, 2019
at 2:00 o’clock in the afternoon.

PAUL ERIC. C.
TAMBOA