SOLOMON, Ruby D.

Legal Writing/ 6:00PM-8:00PM TUES.

Atty. Reyes

REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
BRANCH 13, MANILA

PEOPLE OF THE PHILIPPINES

Plaintiff,

-versus-

Criminal Case No. xx-

xxxxx

JUAN DELA CRUZ,

Accused.
x------------------------------------------------------------------------x

MOTION TO DISMISS
COMES NOW, accused through the undersigned counsel and unto
this Honorable Court respectfully states:
1. That on 20 September 1999, a criminal complaint charging Juan
Dela Cruz, Pedro Posadas, Manuelito Posadas and three other
unidentified persons with robbery in band was filed by Atty. Troy
Cabungcal of the Prosecutors Office in the Regional Trial Court. The
information reads as follows:
That on or about 2:30 o'clock in the afternoon of
September 02, 2012, in the City of Manila, Velasquez,
Tondo, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, conspiring
together and helping one another for a common
purpose and all armed with bolos, by means of
violence and intimidation, did then and there
willfully, and unlawfully and feloniously, take and
carry away with intent of gain and against the will of
the owner thereof, 5 pieces of jewelries worth
500,000.00 (Php 100,000.00 each) and 3 pieces of
Rolex watches valued at 3 million and a cash
amounting to 300,000.00 , belonging to Constacio
Cojuangco, to his damage and prejudice in the said
sum of 3,800,000.00

2. That accused Juan Dela Cruz affirmed the said incident as he

indicated in his counter-affidavit. However, he denied his
involvement and participation in the said case;

SOLOMON, Ruby D.
Legal Writing/ 6:00PM-8:00PM TUES.
Atty. Reyes

3. That on September 03, 2012, the complainant executed an affidavit,

paragraph no. 4 of which is hereto stated:
While I was walking on my way where my car was
parked I saw accused Juan Dela Cruz before the
crime was performed talking to the 2 accused who
are brothers and seems known to him (Pedro Posadas
and Manuelito Posadas) and 3 other persons and
after the taking of valuable things to me by the
malefactors, the accused Pedro punched my face
after that when Manuel Posadas was about to stab
me, I heard a guy shouting May pulis! Nanjan na
sila and that is Juan Dela Cruz whos hiding at the
tree and the three unidentified persons ran away
together with Posadas brother, then followed by Juan
Dela Cruz.

4. That on September 06, 2012, accused Juan Dela Cruz executed a

counter-affidavit which he admitted the allegation paragraph 4, that
he indeed talked with the other co-accused, because the two
brothers was his friend and attempt to induce and convince him to
be their look-out if he refuse Manuelito shot him on his head. That
he only shouted May pulis, nandyan na sila because he saw
Manuel was about to stab Constacio Cojuangco and to prevent
further injury to the victim;
5. That, as mentioned in the above paragraphs citing the respective
affidavits of the complainant and the accused, theres no clear
showing of involvement and real intent of Juan Dela Cruz to
participate in the said case as its lack necessary elements to prove
the information filed by the City Prosecutor against accused Juan
Dela Cruz;
6. That we move for the dismissal of the case before the Regional Trial
Court as it failed to prove the liability of accused Juan Dela Cruz as
principal in the above-entitled case, the fact the he has no real
connection to the other co-accused and the complainant mistakenly
recognize his presence in the said robbery, Article 296 of the
Revised Penal Code 2nd paragraph states that:
Any member of a band who is present at the
commission of a robbery by the band, shall be
punished as principal of any assaults committed by
the band, UNLESS it be shown that he attempted to
prevent the same.

SOLOMON, Ruby D.
Legal Writing/ 6:00PM-8:00PM TUES.
Atty. Reyes

A member of the band is liable for any of the assaults

committed by the other members thereof, when the
following requisites concur:
1. that he was the member of the band.
2. that he was present at the commission of a robbery
by that band.
3. that the other members of the band committed an
assault.
4. that he did not prevent the assault..
4.

That the first and fourth requisites did not concur. Accused Juan

Dela Cruz was not even a member of the band as the complainant
mistakenly recognizes his participation and what he had shouted to
prevent the commission of the assault.
PRAYER

WHEREFORE, premises considered, accused through counsel

prays for the dismissal of the above-entitled case against him for failure
of the Prosecution to prove the allegation charge against defendant and
that he be ACQUITTED. Other reliefs and remedies just and equitable are
likewise prayed for.

Respectfully submitted.
City of Manila, February 4, 2012.

SOLOMON LAW OFFICE

Counsel for the Accused
Suite 2222 Avida II Condominium
2908 Dian, Makati City
Tel. No.(02) 608 4025

By:

ATTY. RUBY D. SOLOMON

PTR No. 028570/ 02-22-12/Manila
IBP No. 678792/02-21-12/Manila IV
IBP Roll No. 578390
MCLE No. IV-0006712

SOLOMON, Ruby D.
Legal Writing/ 6:00PM-8:00PM TUES.
Atty. Reyes

Copy furnished:

REYES LAW OFFICE

RECEIPT NO.

REGISTRY
Robinsons Ermita

Postal Station
THE CLERK OF COURT
BRANCH 13, MANILA
Postal Station

REGISTRY RECEIPT NO.

Robinsons Ermita
February 4, 2012

EXPLANATION OF SERVICE
A copy of the foregoing MOTION TO DISMISS is filed with this
Honorable Court and is being served to the above-named addressees
through registered mail and personal service being impracticable due to
time, distance and personnel constraints.

ATTY. RUBY D. SOLOMON