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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

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

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.

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 suspects 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 officers 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

the urgent purpose of suspending his liberty, it cannot be


arbitrarily or capriciously exercised without unduly
compromising a citizens 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.

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?

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.

(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.
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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