Accused Trial Memorandum

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, 57692 Plaintiff, -versus -

CRIMINAL CASE NO.

for

MARLITO BINAY y Dimalapitan, VICTOR MAGUNDAYAO y Magtibay SEC. 1 And GUADALUPE DAPULA y Marasigan, PRESIDENTIAL DECREE Accused.

VIOLATION OF OF 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”

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STATEMENT OF FACTS: 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

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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. 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 mahjong 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 mahjong 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.

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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 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. ***

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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.

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

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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 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.

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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. 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?

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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 inflagrante 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. .

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.

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(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

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“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. 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:

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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? 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

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

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