Republic of the Philippines

First Judicial Region

1st Municipal Circuit Trial Court

THE PEOPLE OF THE PHILIPPINES,

Plaintiff, Criminal Case no.

-versus- for:

”Attempted Homicide”

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

MEMORANDUM
(Accused)

ACCUSED, by counsel, respectfully submits this Memorandum to

show that he is not guilty of attempted homicide as alleged in the
information.

PREFATORY STATEMENT

“It is better to liberate a guilty man than to unjustly keep in prison

one whose guilt has not been proved by the required quantum of
evidence. Hence, despite the Court's support of ardent crusaders
waging all-out war against felons on the loose, when the People's
evidence fails to prove indubitably the accused's authorship of the crime
of which they stand accused, it is the Court's duty -- and the accused's
right -- to proclaim their innocence. Acquittal, therefore, is in order.”
(People of the Philippines vs. Ernesto Fernandez, G.R. Nos. 139341-45, July
25, 2002)

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 STATEMENT OF THE CASE

This is a case for attempted homicide against (Paulino). The basis

for the charge against him is an alleged hacking incident that took
place on the evening of February 29, 2012 at Pangtud, Pidigan, Abra.
Paulino allegedly hacked (Apollo) on the head thereby warranting his
indictment for the crime of attempted homicide. The accusatory portion
in the information against him reads as follows:

“That on or about 9:00 o’clock of February 29, 2012, at

Pangtud, Pidigan, Abra, Philippines, and within the jurisdiction of
this Honorable Court, the above-mentioned accused, with intent
to kill with the use of a bolo, did then and there willfully, unlawfully
and feloniously attack and hack one Apollo Palecpec y Planas
who sustained lacerated wound on his forehead thereby
commencing the commission of homicide directly by overt acts
but does not perform all the acts of execution by causes other than
his spontaneous desistance to the damage and prejudice of the
offended party.”

STATEMENT OF THE FACTS

The Prosecution’s Case

On February 29, 2012, at around 9 o’clock in the evening, the

private complainant, Apollo, together with his brother Allan (Allan),
Adres, Felipe and two tanods, specifically, Erwin and Rodrigo went to
Abra, specifically in front of the house of Paulino, to cement the road
which was dug by the latter.

When they arrived, they talked to Paulino saying that they will
cement the road. While they were talking Allan shouted and
consequently Paulino thought that Allan was challenging him to a fight.
Suddenly Paulino grabbed a stone to hit Allan Palecpec but Allan was
able to evade and hug him then a rumble between the two on the
ground ensued. They were broken up by Rodrigo then immediately
Paulino ran inside his house.

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 Thereafter, Paulino went out with a bolo in his hand. Upon seeing
him, Apollo just stood by thinking that Paulino will just talk to him but
Paulino went near him and hacked him which caused him to fall to the
ground.

Afterwards, Allan and his companions brought Apollo to the

hospital. Apollo was admitted in the hospital on the night of February 29,
2012 and was discharged on March 2, 2012.

The defense of the Accused

On February 29, 2012, at about 10:30 in the evening, Paulino, his

wife Estrelita and their grandchild were in their living room watching
television.

While they were watching television, Estrelita heard voices outside

their home which prompted her to go out and see what was happening
outside.

Upon stepping outside, Estrelita saw six men, specifically, Apollo,

Allan, Erwin, Rodrigo, Adres, and Felipe who all appeared to be drank.
Allan and Apollo instructed one of their companions to cement a certain
part of the road.

Estrelita pleaded with them to cement the road tomorrow as it was

already very late in the evening and to give time to Paulino to first put a
hose on that part of the road they wish to cement.

Afterwards, Paulino followed Estrelita to know what was

happening. Upon seeing one of the companions of Apollo holding a
shovel, Paulino asked them what they are going to cement, then Allan
answered that they came to cement the part of the road which Paulino
excavated. Paulino pleaded that they cement the road tomorrow to
give him time to put a hose in the road they wish to cement to which
Allan responded, you are not the one to dictate what to do.

This prompted Paulino to ask why does it seem that they are asking
for a fight. Suddenly Allan picked up a rock and punched Paulino with it
at the corner of his left eyebrow which caused it to bleed. Then Apollo
joined in and also mauled Paulino.

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 When Paulino was pulled by his wife and was able to get away
from them he ran inside his house where he found a bolo. He picked the
bolo up and went outside.

Upon Seeing Paulino holding a bolo, Apollo and his companions

scampered away. While running away Apollo tripped over a barbed
wire which caused him to fall to the ground.

Afterwards, Paulino immediately ran to the house of his cousin to

relate what happened. Then together with his cousin they went to the
house of Barangay Konsehal to seek his assistance.

STATEMENT OF THE ISSUES

The issues in this case are:

a) Whether or not accused hacked Apollo;
b) Whether or not accused committed the crime of attempted
homicide.

ARGUMENTS

accused DID NOT

HACK APOLLO PALECPEC

In People of the Philippines vs. Hermogenes De Guzman, G.R. No.

192250, July 11, 2012, the Supreme Court ruled that the time-honored test
in determining the value of the testimony of a witness is its compatibility
with human knowledge, observation and common experience of man.
Thus, whatever is repugnant to the standards of human knowledge,
observation and experience becomes incredible and must lie outside
judicial cognizance. Consistently, the Court has ruled that evidence to
be believed must proceed not only from the mouth of a credible witness
but must be credible in itself as to hurdle the test of conformity with the
knowledge and common experience of mankind.
In the case at bar, the action of the private complainant does not
jibe with the circumstance, it defies reason and leaves much to the
imagination rendering his testimony incredible and leads to the

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conclusion that he was either withholding incriminating information or
was not telling the truth. Apollo testified, to wit:
XXXXXXXXXX
Q: While you were at the area where the damage was
located what happened?
A: Erwin was talking to Paulino to fix the road and when
brother Allan shouted, Paulino thought that Allan was
challenging Paulino.
Q: What happened after that Mr. witness?
A: Paulino pick a rock and plan to sponge it on Allan. But allan
was able to evade and embrace Paulino. So they fall on the
ground.
Q: What happened while your brother and Paulino was on
the ground?
A: Rodrigo pacified the two who was grabbling on the
ground.
Q: After separating the two what happened?
A: I went to the side of the damaged truck but then Paulino
went inside his house, when he came out he was holding a
bolo sir.
Q: Now, how far was your position to the hacker Paulino?
A: About five (5) meters sir, from the house to the vehicle
which I stood.
Q: When Paulino came out of his house what happened?
A: He came to me I thought he will talk with me but then he
hacked me with my head and I fell to the ground.
(Pages 4-5 of the Transcript of Stenographic Notes during the
Direct Examination of Apollo)
To Corroborate the testimony of Apollo is the testimony of Allan, to wit:

XXXXXXXXXX
Q: When you saw his holding a bolo you didn’t ran?
A: We just avoided him sir.

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 Q: How far is Apollo from Paulino when the attack
happened?
A: About (4) meters sir.
Q: So with that four meters, why is it he did not ran when you
saw the bolo?
A: Maybe he did not see it that’s why he did not ran.
(Page 16 of the Transcript of Stenographic Notes during the
Cross Examination of Allan)

It is highly inconsistent with the natural/common reaction of one

who was just attacked then is afterwards approached by his enemy with
a deadly weapon in his hand to just stand idly by.
Considering that a number of them went to talk to Paulino about
the road to be cemented, including two tanods, it can be construed
that they were expecting a vehement rejection from Paulino. The
transcript of the pertinent testimony is hereby reproduced, to wit:

XXXXXXXXXX
Q: In going there Mr. Witness, was it not your initial intention to
first talk to the accused? Regarding the matter which you are
disputing about?
A: Yes your honor.
Q: So, was it your initial intention to talk first to the accused?
A: Yes your honor.
(Page 3 of the Transcript of Stenographic Notes during the
Cross Examination of Apollo)
Furthermore, a fight between the party of Apollo and Paulino just
transpired and thus Apollo must have had his guard up so it was highly
improbable or unbelievable for him to just stand idly by upon seeing
Paulino holding a bolo and approaching him on the belief that Paulino
will just talk to him.
To substantiate the same, an excerpt from the testimony of Allan is
hereby reproduced, to wit:
XXXXXXXXXX

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 COURT: What went to your mind when you saw the accused
coming out his house with a bolo?
A: I planned to evade him sir.
COURT: You really waited for him to attack him?
A: No sir.
COURT: Because the house is about four (4) meters away
from you, from the moment you saw the accused going out
the house with a bolo you have all the time to run away, not
to wait what is about to happen, and you did not do that?
A: We did sir we just evaded him. Just a distance away sir.
(Pages 16-17 of the Transcript of Stenographic Notes during
the Examination of Allan)

It is more plausible and consistent with the natural reaction of man

that Apollo ran away when he saw Paulino go out of his house with a
bolo in his hand and he most probably suffered his injury in his head when
he tripped over a barbed wire while he was running. The inconsistency
of his testimony with the natural reaction of man creates a doubt as to
the truth as to whether he was really hacked by Paulino or not.

Moreover, to bolster the fact that Paulino did not hack Apollo with
a bolo is the nature of the latter’s injury. A bolo is a large single-edged
knife mostly used by farmers in the Philippines. It is a tool for cutting and
must always be kept sharp to be able to function properly. Since the
accused in this case is a farmer, he must keep his bolo sharp to be able
to do his job properly. If in fact Apollo’s injury was due to the hacking of
a bolo, the wound he incurred must have been fatal, considering that
the blow was to his head. However, the doctor that examined him found
otherwise. The pertinent portion of the Medical Certificate of the Private
Complainant is hereby reproduced:

XXXXXXXXXX
A. Diagnosis: WOUND, LACERATED FOREHEAD,
HYPERTENSION
To verify the same the pertinent portion of the testimony of the
examining doctor is hereby reproduced, to wit:

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 XXXXXXXXXX
ATTY. Cariño: Mr. Witness you then classify these wounds as
fatal?
A: No sir.

Additionally, if such injury was caused by the hacking of a bolo, the

injury he sustained would have been easily visible, considering the size of
a bolo. However, during his examination, it was necessary for the
prosecution to ask where his wound was. The pertinent portion of the
transcript of stenographic notes during his examination is hereby
reproduced:
XXXXXXXXXX
Q: Is the scar is still visible? mr witness?
A: Yes sir on my left eyebrow.
(Page 5 of the Transcript of Stenographic Notes during the
Direct Examination of Apollo)

Therefore, if the private complainant in this case, was really hacked

by a bolo on his head, a vital part of the body, he must have suffered a
deep wound which would in fact be fatal and would need stitches.
However, the wound of the private complainant as testified by the
doctor was not fatal and the wound did not even need stitching.
The quantum of proof required in a criminal case is proof beyond
reasonable doubt. Proof beyond reasonable doubt means a moral
certainty that the accused is guilty. When there is a cloud of doubt
continuously hovering, and the mind cannot rest easy, as in this case,
the prosecution has not discharged with its duty to show to the court to
the point of moral certainty that the accused indeed committed the
offense charged.
Therefore, the version of events as recounted by the private
complainant being strained by human implausibility, it results to a doubt
as to whether the private complainant was really hacked. The accused
then cannot be convicted of the offense charged because the
prosecution’s evidence in this case cannot prove that the accused
committed the offense charged with moral certainty.

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 accused DID NOT COMMIT
THE CRIME OF ATTEMPTED HOMICIDE

In People vs. Villanueva, 51 Phil. 488, the Supreme Court held that
the intent to kill being an essential element of the offense of attempted
homicide, said element must be proved by clear and convincing
evidence. That element must be proved with the same degree of
certainty as is required of the other elements of the crime. The inference
of intent to kill should not be drawn in the absence of circumstances
sufficient to prove such intent beyond reasonable doubt.

On the ASSUMPTION
that Paulino hacked Apollo

Even on the assumption that Paulino Hacked Apollo, still he cannot

be convicted of attempted homicide because the intention of the
petitioner to kill the offended party has not been conclusively shown.

In People vs. Jugueta, the Supreme Court held that intent to kill
may be proved by evidence of: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and
number of wounds inflicted on the victim; (d) the manner the crime was
committed; and (e) the words uttered by the offender at the time the
injuries are inflicted by him on the victim.

In the present case, intent to kill the victim could not be inferred
from the evidence presented by the prosecution. Paulino only allegedly
hacked the victim once. If he intended to kill him, Paulino could have
hacked the victim multiple times when Apollo fell to the ground. After
the alleged hacking incident happened, what allegedly transpired next
was that the companions of Apollo brought him to the hospital. It can
be inferred then that Paulino retreated after the alleged hacking,
thereby indicating that if Paulino had intended to kill Apollo he would
have held his ground and kept on hitting Apollo with his bolo to kill him.
The inference that intent to kill existed should not be drawn in the
absence of circumstances sufficient to prove this fact beyond
reasonable doubt.
Moreover, the wounds allegedly inflicted on the offended party
were of slight nature, indicating no homicidal urge on the part of Paulino.
The findings in the medical certificate of the alleged victim in this case
are as follows:
XXXXXXXXXX
A. Diagnosis: WOUND, LACERATED FOREHEAD,
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 HYPERTENSION
B. Confinement:
Date Admitted: 02/29/12
Date Discharged: 03/02/12
On the assumption that the injuries suffered by Apollo was due to
being hacked by Paulino, the latter cannot be convicted of the crime
of attempted homicide for lack of intention to kill as the injuries sustained
by Apollo were not fatal as seen in the findings in his medical certificate
and as testified to by the doctor, to wit:
XXXXXXXXXX
ATTY. Cariño: Mr. Witness you then classify these wounds as
fatal?
A: No sir.
Besides, the prosecution failed to present testimonial evidence on
the nature of the wounds sustained by Apollo. The Court has discussed
the importance of ascertaining the degree of injury sustained by a victim
in People v. Matyaong, thus:
“In considering the extent of injury done, account must be
taken of the injury to the function of the various organs, and also
the danger to life. A division into mortal and nonmortal wounds, if
it could be made, would be very desirable; but the unexpected
complications and the various extraneous causes which give
gravity to the simplest cases, and, on the other hand, the favorable
termination of some injuries apparently the most dangerous, render
any such classification impracticable. The general classification
into slight, severe, dangerous, and mortal wounds may be used,
but the possibility of the slight wound terminating with the loss of
the person’s life, and the apparently mortal ending with only a
slight impairment of some function, must always be kept in mind.”

The Supreme Court has held that the danger to life of any wound
is dependent upon a number of factors: the extent of the injury, the form
of the wound, the region of the body affected, the blood vessels, nerves,
or organs involved, the entrance of disease-producing bacteria or other
organisms into the wound, the age and constitution of the person
injured, and the opportunities for administering proper surgical
treatment.

No evidence in this case was introduced to prove that Apollo

would have died from his wound without timely medical attendance. It
is well-settled that where there is nothing in the evidence to show that
the wound would be fatal if not medically attended to, the character of
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the wound is doubtful; hence, the doubt should be resolved in favor of
the accused and he cannot be held guilty therefor of the crime
charged.

The element of intent to kill not having been duly established, and
considering that the injuries suffered by the offended party were not
fatal as testified to by the doctor and in fact he was just confined in the
hospital for less than two (2) days, thus the accused, on the assumption
that he hacked the private complainant, cannot be held guilty of
attempted homicide.

RELIEF

WHEREFORE, it is respectfully prayed that judgment be rendered

acquitting accused of attempted homicide. Other reliefs just and
equitable are also prayed for.
Bangued, Abra, Philippines, this __day of November, 20xx.

COUNSEL

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