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REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT
5th Judicial Region
Branch 0
Legazpi City

Pele of the Philippines,

Plaintiff,
CRIMINAL CASE NO: 0777

-versus-
FOR: RAPE (Article 266-A of
the Revised Penal Code)
Jericho Tabinas,
Accused.
x--------------------------------------x

MEMORANDUM
The PROSECUTION thru the undersigned counsel and unto this Honorable
Court most respectfully alleges:

I. PREPATORY STATEMENT

Proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Moral certainty only is
required, or that degree of proof which produces conviction in an unprejudiced
mind (Sec. 2 Rule 133, Rules of Court)

While it is true that the accused is afforded by the Constitution of

presumption of innocence such presumption is not forever. It ends when it is
overcome in a final conviction. And even though it is the duty of the prosecution to
prove the guilt of the accused beyond reasonable doubt, the prosecution is not
required to show the guilt of the accused with absolute certainty. Only moral
certainty is demanded or that degree of proof which, to an unprejudiced mind,
produces conviction.

II. THE PARTIES

The parties to this case are:

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PAULITA (Paulita) MACASADIA- The victim/private off ended

party of the crime of rape, a 15 year old high school student of PLM
Colleges in the Municipality of Guinobatan Albay and a resident
thereof.

JERICHO (Jericho) TABINAS - The accused, an ice cream vendor

known to the victim as Manong Icho and a resident of the same
municipality, Guinonatan, Albay

III. STATEMENT OF THE FACTS

As stipulated and approved in the Pre-trial Conference, the facts

of the case are as follows:

1. That victim/private offended party Paulita is a fifteen (15) years old

high school student in PLM Colleges in the Municipality of
Guinobatan, Albay.

2. That accused, Jericho Tabinas is 23 years old married man and an ice
cream vendor whose area of business is the whole municipality of
Guinobatan.

3. That victim, Paulita is temporarily residing in a boarding house near

the PLM Colleges.

4. That victim, Paulita is a known customer of the accused, Jericho.

5. That on September 26, 2016, a police blotter was made by victim,

Paulita accompanied by her mother, Paulinia Macasadia alleging the
crime of rape committed against the person of Paulita.

6. That allegedly Paulita was raped by the accused, Jericho in the early
morning of September 26, 2016 in the house of one Gari Olivavares
about 300 meters away from the boarding house of the victim.

7. That victim, Paulita was allegedly carried by the accused to the said
place while she was in a deep slumber and was only awakened by the
strangling of the accused.
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8. That victim, Paulita felt pain in her all over her body particularly in
her private parts and discovered that she was no longer wearing
underwear and skirt.

9. That on October 8, 2016 a police line-up was made in the Guinobatan

Police Station and victim, Paulita identified accused, Jericho as the
perpetuator of the alleged crime of rape.

IV. STATEMENT OF THE CASE

For the orderly exposition and comprehension of the many occur rences
of the present controversy this matrix is presented:

The victim Paulita Macasadia through

October 12, 2016 assistance of her mother, Paulinia Macasadia
filed a Complaint before the Office of the
Provincial Prosecutor of Albay.

October 16, 2016 The accused, Jericho Tabinas filed his Counter-
Affidavit.

A resolution was issued by the Provincial

October 30, 2016
Prosecutor finding probable cause on the
complaint filed.

November 3, 2016
Information was filed in the Court.

A warrant of arrest was issued against accused,

November 13, 2016
Jericho Tabinas

November 20, 2016 The court set the accused for arraignment and a
plea of Not Guilty was made by the accused.

The court ordered the mandatory trial conference

December 5, 2016
where victim, Paulita Macasadia and accused,
Jericho Tabinas appeared before the court.
December 11, 2016
The court sets the case for trial proper. The
Prosecution presents as witness, Paulita
Macasadia victim/private offended party who
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positively identified accused, Jericho Tabinas as

the perpetuator of the crime of rape.

Continuation of Prosecutions presentation of

evidence. Presentation of expert witness, Dr.
John Brutas medico legal of PNP Crime Lab,
Camp Ola, Legazpi City who presented Medico
December 18, 2016
Legal Report No. A-0001-01 and concluded that
that victim suffers hymenal lacerations and the
swelling of the labia minora indicating that
victim had a rough sexual activity or a forceful
intercourse.

Continuation of Prosecutions presentation of

evidence. Presentation of witness, Stefania
December 18, 2016 Romero who testified on the continuity of the
felonies acts of the accused to perpetuate the
crime and his clear intention to violate the
person of his victims.

Prosecution filed a written offer of testimonial

December 21, 2016
and documentary evidences and manifests the
resting of its case.

January 05, 2016 Court orders Accused to file Comment to the

Formal Offer of Evidence of Prosecution.

January 10, 2016 Accused filed a Comment to Formal Offer of

Evidence of Prosecution.

January 20, 2016 Court orders the admission of Prosecutions offer

of evidence.

Defense presentation of evidence. Presentation of

witness, the accused Jericho Tabinas who testify
January 25, 2016
before the court and made denial of the alleged
offense against him. Thereafter Defense
manifests its oral formal offer of evidence.

IV. ISSUES
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The sole issue of this case is whether or not, accused Jericho

Tabinas is guilty of the crime of Rape under Art. 266-A of the Revised
Penal Code.

V. ARGUMENTS

The crime of rape is committed by a man who shall have carnal

knowledge of a woman under any of the circumstance enumerated in
Art. 266-A of the R evised Penal Code.

The basic element of rape is carnal knowledge or sexual

intercourse, not ejaculation. Carnal knowledge is defi ned as the act of a
man having sexual bodily connections with a woman. This explains why
the slightest penetration of the female genitalia consummates the rape.
As such, a mere touching of the external genitalia by the penis capable
of consummating the sexual act already constitutes consummated rape.
(People v. Jalosjos , G.R. Nos. 132875-876, November 16, 2001, 369
SCRA 179, 198)

It is without a doubt that herein accused is guilty of the crime of

rape against the person of the victim, Paulita Macasadia. The
testimony of victim, Paulita Macasadia before the police station, her
act of communicating the incident that transcribed on the early
morning of September 26, 2016 and the fi ling of the instant case before
this court thereby subjecting her to public scrutiny and suff er the
shame of trial against her person and her family cannot be regarded as
a mere accusation based on false and fabricated story of an alleged
rape.

In the case of People v. Malibiran , G.R. No. 173471, March 17,

2009, 581 SCRA 655, 666-667 . The court held a rape victim, who
testifi es in a categorical, straightforward, spontaneous and frank
manner, and remains consistent, is a credible witness. Moreover, when
the off ended parties are young and immature girls, as in this case,
where the victim was only nine years old at the time the rape was
committed, courts are inclined to lend credence to their version of what
transpired, not only because of their relative vulnerability, but also
because of the shame and embarrassment to which they would be
exposed by court trial, if the matter about which they testifi ed were not
true.
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No woman would go through the process and humiliation of trial had

she not been a victim of abuse and her only motive is to seek and obtain
justice. When she says she has been raped, she says, in eff ect, all that
is necessary to prove that rape was, indeed, committed. (People v.
Diosdado Tubat, G.R. No. 183093 February 1, 2012.

Furthermore the Medical Legal report fi ndings (Report No. A-

0001-01) and marked as Exhibit B and B-1 verifi es that physical
attributes of a perpetuation of the crim e of rape. Medico Legal Report
No. A-0001-01 of Dr. John Brutos whose fi ndings and conclusions were
as follows:

Under the heading genital:

The pubic hair is copious. Labia majora and minora still

coaptated, with the light brown labia minora presenting in
between. On separating the same disclosed an elastic and fl eshy
type hymen, vulva swollen, presence of fresh hymenal laceration
at six oclock, examination for the presence of spermatozoa was
positive. Physical virginity confi rmed lost. In addition, there
were signs of external struggle, contusion, abrasion all over face,
around neck, scratch marks on both medial surface of thigh,
vulva swollen

Credence should likewise be made with respect to the testimony of

expert witness, Dr. John Brutos whose conclusion reveal that victim
suff ers hymenal lacerations and the swelling of the labia minora
indicating that victim had a rough sexual activity or a forceful
intercourse.

The positive identifi cation of the victim to herein accused in the

police line-up conducted on October 8, 2016 validate her positive
identifi cation of the perpetuator of the crime in the person of Jericho
Tabinas. The witness positive identifi cation of the accused was further
corroborated by the testimony before the court of witness, Stefania
Romero who establishes the continuity of the felonious attempts and
acts of the accused to perpetuate the crime of rape to his unsuspecting
victims within the same neighborhood.

While accused in his Counter Affi davit marked as Exhibit C to C-

1 and his Judicial Affi davit marked as Exhibit D to D-1 denies the
allegation charged against him such denial does not prove any merit.
Accused merely presented an alibi in his affi davits and testimony
before the Court but failed miserably to substantiate such denial by
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proof or evidence. Accused even failed to submit and present credible

witness that will support his alibi that on the evening of September 25,
2016 until the early morning of September 26, 2015 he was fast asleep
together with his wife and children. Accused could have presented the
testimony of his wife and children however for no reason he did not.

In rape cases, while denial and alibi are legitimate defenses, bare
assertions thereof cannot overcome the categorical testimony of the
victim. In particular, the defense of alibi is weak if wanting in material
corroboration, as in this case. ( People v. Cachapero , 428 SCRA 744
(2004))

The court r uled in People v. Arevalo , 421 SCRA 604 that in order
to merit credibility, denial must be buttressed by strong evidence of
non-culpability which herein accused-appellant failed to show. And in
order for alibi to prosper, the accused-appellant must prove not only
that he was at some other place at the time of the commission of the
crime but also that it was physically impossible for him to be at the
locus delicti or its immediate vicinity. In the present case, accused-
appellant failed to demonstrate this fact.

V. PRAYERS

Wherefore in view of the foregoing, the Prosecution prays that

this Memorandum be duly NOTED.

Legazpi City. February 03, 2016.

RESPECTFULLY SUBMITTED.

Gumal Law Offi ce

Legazpi City, 4500.
Mobile No: 0999-88-74-000
Land Line No: (052) 480-47-00
Email Add:rgumal19@yahoo.com

By:

Atty. Maria Romina Baleza Gumal

Roll No: 70000
IBP No: 00000/01 January 2015 /Albay Chapter
PTR No: 00000 /01 January 2015 / Legazpi City
MCLE Compliance No. IV-0000/20Nov2012
MCLE Compliance No. V-000000/2Feb2015
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Copy Furnish:

Atty. RENNE ROSE PAUNIL R eceived by: ___________________

Counsel for the Defendant Date R eceived: _________________
R oom 023 Happy Building,
Barangay Sagpon Daraga Albay

OFFICE OF THE PROVINCIAL PROSECU TOR

Hall of Justice, Rawis, R eceived by: ___________________
Legazpi Cit y, Albay Date Received : ________________

TRIAL MEMORANDUM FOR PLAINTIFF

STATEMENT OF THE CASE

This case is an action for declaration of nullity of marriage filed by Kara E.

Cruz, Plaintiff, against Mark Cruz, Defendant, before this Honorable Court.

STATEMENT OF THE FACTS

Plaintiff, through counsel, respectfully states that:

1. Plaintiff is married to Defendant, they have 5 kids. Plaintiff came from a

poor family and was working as a restaurant server when she met Defendant,
who is very rich.

2. Plaintiff don't love her husband anymore because he has changed a lot after
they got married and he allege that he abuses her physically, emotionally and
financially.

3. When they got married on May 1995, they did not obtained a valid marriage
license. They just executed a joint affidavit stating that they were living
together since April 1989, but the truth is, they only started living together in
August 1994.

4. Although Plaintiff want nothing to do with Defendant anymore, she is afraid

that the kids will have nothing if she separate from him and she's afraid that
she will not get anything because she brought nothing to the marriage.

5. Plaintiff discovered that Defendant has another woman. He has been keeping
her in an apartment nearby. She said that that neighbors seen Defendant go
there daily - bringing food and groceries to the woman. She alleged that
Defendant has been keeping her there for almost a year now, and the woman
is pregnant.
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ISSUES

1. Whether or not the marriage of Defendant and Plaintiff be declared null and
void on grounds of absence of valid marriage license?

2. Whether or not the property relations governing their marriage is Absolute

Community of Property.

3. Whether or not the petitioner will get anything from the property relations of
their marriage.

ARGUMENTS

1. The marriage of Defendant and Plaintiff shall be declared null and void

a) Defendant and Plaintiff had their marriage solemnized without valid

marriage license by cohabitation of 5 years. Under Art.34 provides
that:

" No license shall be necessary for the marriage of a man and a

woman who have lived together as husband and wife for at least
five years and without any legal impediment to marry each other.
The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths.
The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties are found
no legal impediment to the marriage."

b) Defendant and Plaintiff validly obtained a marriage license by

executing a joint affidavit stating that they were living together since
April 1989, but the truth is, they only started living together in August
1994.

c) The marriage between Defendant and Plaintiff was celebrated without

the formal requisite of a marriage license. They did not meet the
explicit legal requirement in Article 34 which is theyobtained only
through fraud rendering their marriage void.

d) In Dayot vs. Dayot G.R. No. 179474, the Supreme Court held that:

"..a marriage is invalidated by a fabricated statement that the parties

have cohabited for at least five years as required by law. The
former is with reference to the absence of one. Here, there is no
marriage license at all. Furthermore, the falsity of the allegation in
the sworn affidavit relating to the period of Jose and Felisas
cohabitation, which would have qualified their marriage as an
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exception to the requirement for a marriage license, cannot be a

mere irregularity, for it refers to a quintessential fact that the law
precisely required to be deposed and attested to by the parties under
oath. If the essential matter in the sworn affidavit is a lie, then it is
but a mere scrap of paper, without force and effect. Hence, it is as
if there was no affidavit at all."

e) In Dayot vs. Dayot G.R. No. 179474, the Supreme Court held that:

" Jose and Felisas marriage was celebrated sans a marriage

license. No other conclusion can be reached except that it is
void ab initio".

2. Their property relation governing their marriage is Absolute Community

Property.

a) They are married on May 1995 which is after the effectivity of the
Family of Code of the Philippines (August 3, 1988).

b) Absence of the stipulation of facts that they executed a marriage

settlement that will fix the properly relations of their future marriage,
the presumption is Absolute Community of Property will govern their
marriage under Art. 75 of the Code.

3. The petitioner will receive equal shares in their community property.

a) The property relation governing their marriage is Absolute

Community of Property.

b) The community property shall consist of all the property owned by the
spouses at the time of the celebration of the marriage or acquired
thereafter (Art. 91 of the Code).

c) The absolute community of property will be terminated under Art. 99

of the Code.

d) Under Art.102 of the Code, upon dissolution of the absolute

community regime, the following procedure shall apply: Inventory
shall be prepared, whatever their exclusive properties will be
delivered to each spouse, payment of debts and obligations from its
nets assets, the net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided
equally between husband and wife, the presumptive legitimes of the
common children shall be delivered upon partition, adjudication of
conjugal dwelling.

e) Petitioner and respondent, both having acted in bad faith, will receive
equal shares to the liquidation of their community property. Also, their
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kids shall be entitled for support under the provisions of Support in

the Code.

RELIEF

Wherefore, premises considered, it is respectfully prayed that their marriage

be declared void and the petitioner and their common children be entitled for
support and benefits from the liquidation of their property relation

23 October 2014, Legazpi City

(Sgd.)
(Address)
(IBP No.)
(PTR)
(MCLE Compliance)

(Copy furnished)
TRIAL MEMORANDUM FOR PLAINTIFF

STATEMENT OF THE CASE

This case is an action for declaration of nullity of marriage filed by Kara E.

Cruz, Plaintiff, against Mark Cruz, Defendant, before this Honorable Court.

STATEMENT OF THE FACTS

Plaintiff, through counsel, respectfully states that:

6. Plaintiff is married to Defendant, they have 5 kids. Plaintiff came from a

poor family and was working as a restaurant server when she met Defendant,
who is very rich.

7. Plaintiff don't love her husband anymore because he has changed a lot after
they got married and he allege that he abuses her physically, emotionally and
financially.

8. When they got married on May 1995, they did not obtained a valid marriage
license. They just executed a joint affidavit stating that they were living
together since April 1989, but the truth is, they only started living together in
August 1994.
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9. Although Plaintiff want nothing to do with Defendant anymore, she is afraid

that the kids will have nothing if she separate from him and she's afraid that
she will not get anything because she brought nothing to the marriage.

10.Plaintiff discovered that Defendant has another woman. He has been keeping
her in an apartment nearby. She said that that neighbors seen Defendant go
there daily - bringing food and groceries to the woman. She alleged that
Defendant has been keeping her there for almost a year now, and the woman
is pregnant.

ISSUES

4. Whether or not the marriage of Defendant and Plaintiff be declared null and
void on grounds of absence of valid marriage license?

5. Whether or not the property relations governing their marriage is Absolute

Community of Property.

6. Whether or not the petitioner will get anything from the property relations of
their marriage.

ARGUMENTS

4. The marriage of Defendant and Plaintiff shall be declared null and void

f) Defendant and Plaintiff had their marriage solemnized without valid

marriage license by cohabitation of 5 years. Under Art.34 provides
that:

" No license shall be necessary for the marriage of a man and a

woman who have lived together as husband and wife for at least
five years and without any legal impediment to marry each other.
The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths.
The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties are found
no legal impediment to the marriage."

g) Defendant and Plaintiff validly obtained a marriage license by

executing a joint affidavit stating that they were living together since
April 1989, but the truth is, they only started living together in August
1994.

h) The marriage between Defendant and Plaintiff was celebrated without

the formal requisite of a marriage license. They did not meet the
explicit legal requirement in Article 34 which is theyobtained only
through fraud rendering their marriage void.
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i) In Dayot vs. Dayot G.R. No. 179474, the Supreme Court held that:

"..a marriage is invalidated by a fabricated statement that the parties

have cohabited for at least five years as required by law. The
former is with reference to the absence of one. Here, there is no
marriage license at all. Furthermore, the falsity of the allegation in
the sworn affidavit relating to the period of Jose and Felisas
cohabitation, which would have qualified their marriage as an
exception to the requirement for a marriage license, cannot be a
mere irregularity, for it refers to a quintessential fact that the law
precisely required to be deposed and attested to by the parties under
oath. If the essential matter in the sworn affidavit is a lie, then it is
but a mere scrap of paper, without force and effect. Hence, it is as
if there was no affidavit at all."

j) In Dayot vs. Dayot G.R. No. 179474, the Supreme Court held that:

" Jose and Felisas marriage was celebrated sans a marriage

license. No other conclusion can be reached except that it is
void ab initio".

5. Their property relation governing their marriage is Absolute Community

Property.

c) They are married on May 1995 which is after the effectivity of the
Family of Code of the Philippines (August 3, 1988).

d) Absence of the stipulation of facts that they executed a marriage

settlement that will fix the properly relations of their future marriage,
the presumption is Absolute Community of Property will govern their
marriage under Art. 75 of the Code.

6. The petitioner will receive equal shares in their community property.

f) The property relation governing their marriage is Absolute

Community of Property.

g) The community property shall consist of all the property owned by the
spouses at the time of the celebration of the marriage or acquired
thereafter (Art. 91 of the Code).

h) The absolute community of property will be terminated under Art. 99

of the Code.

i) Under Art.102 of the Code, upon dissolution of the absolute

community regime, the following procedure shall apply: Inventory
shall be prepared, whatever their exclusive properties will be
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delivered to each spouse, payment of debts and obligations from its

nets assets, the net remainder of the properties of the absolute
community shall constitute its net assets, which shall be divided
equally between husband and wife, the presumptive legitimes of the
common children shall be delivered upon partition, adjudication of
conjugal dwelling.

j) Petitioner and respondent, both having acted in bad faith, will receive
equal shares to the liquidation of their community property. Also, their
kids shall be entitled for support under the provisions of Support in
the Code.

RELIEF

Wherefore, premises considered, it is respectfully prayed that their marriage

be declared void and the petitioner and their common children be entitled for
support and benefits from the liquidation of their property relation

23 October 2014, Legazpi City

(Sgd.)
(Address)
(IBP No.)
(PTR)
(MCLE Compliance)

(Copy furnished)