Republic of the Philippines

Fourth Capital Judicial Region

REGIONAL TRIAL COURT
Santa Cruz, Laguna
Branch 26

PEOPLE OF THE PHILIPPINES

-versus- Criminal Case No. Sc-13049

For: Violation of Rep. Act No. 9262

AGATON CORDON y ARBES,

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

OMNIBUS MOTION FOR NEW TRIAL

THE ACCUSED, by his undersigned counsel, respectfully

states:
SUBJECT MATTER
OF THIS OMNIBUS MOTION

The subject matter of this Omnibus Motion is the decision of

this Honorable Court which is dated February 7, 2018,
promulgated and received on March 9, 2013 be set aside and
new trial be granted.

This omnibus motion is VERIFIED. The accused adopts the

full body of this motion as his AFFIDAVIT OF MERIT in support
of his motion.

MATERIAL DATES

The decision of this Honorable Court which dated February 7,

2018, promulgated and received on March 9, 2013, This motion is
intended to be filed by the undersigned counsel on March 19,
2018 after the proper final review and editing procedures.

GROUNDS FOR THE MOTION FOR NEW TRIAL

The accused seek NEW TRIAL of the decision on the

following grounds:

1. The prosecution evidence has failed to prove the guilt of

the accused beyond reasonable doubt.
2. The Salaysay dated January 11, 2008 on 2:00 o’clock at
Liliw Laguna police station of FELICIANO GUSAY Y
VIOLANTA @ “FREDIE” was a sham and obtained thru
fraud and mistake due to the fact that he does not know
what is the content of that document, being an illiterate,
he just merely signed it without knowing and explaining
to him its real content.

3. He thought that it was for just for a statement that he was

present during January 17, 2008.

4. He refrained from testifying due to the fact that the

content of that Salaysay was contrary to his way of
reasoning and he did not actually saw what really
transpired on January 17, 2008.

5. This evidence couldn’t have been discovered and produced

at the trial even with the exercise of reasonable diligence.

6. And if this testimony be admitted the decision would

probably change the result of the trial therefore absolving
the herein accused.

7. The admission of Agaton was made through palpable

mistake on his part as this was a product of emotional
distress not knowing or understanding things out, he
wishes to rectify and to deny the same.

All of which warrants NEW TRIAL of the case to enable

the accused, in the interest of truth and justice, to
present material exculpating evidence and to rectify
mistakes in his admission as discussed herein below,
which evidence, if admitted, would result in his
ACQUITTAL.

GROUNDS FOR NEW TRIAL

RULE 121 SECTION 2 STATES THE REQUISITES OF NEW

TRIAL ARE THE FOLLOWING:

1. The evidence must have been discovered after trial;

2. Such evidence couldn’t have been discovered and

produced at the trial even with the exercise of reasonable
diligence;
 3. The evidence is MATERIAL, not merely cumulative,
corroborative, or impeaching;

4. The evidence must go into the merits, such that it would

produce a different result if admitted.

The MATERIAL EXCULPATING EVIDENCE is referred to wit:

1. Annex “A”- Sinumpaang Salaysay of Feliciano Gusay y

Violanta executed on January 11, 2008 at Liliw Police Station.

2. Annex “B”- The true and lawful statement of Sinumpaang

Salaysay of Feliciano Gusay y Violanta executed, submitted
and dated March 13, 2018 to the Provincial Prosecutor.

DISCUSSION

I.
The prosecution evidence has failed to prove the guilt of the
accused beyond reasonable doubt.

In this case, all the evidence presented by the plaintiff are all
“SELF SERVING” which are all in her favor without the accused
having his right to present his counter evidence on his part
despite reasonable diligence on his part due to the fact that his
witness is not cooperative and illiterate not knowing the
circumstances of this case.

His testimony being material as he was a material witness

having witnessed what really happened on February 11, 2008, if
these be admitted the result of the trial will probably change the
result, because he saw nothing during that time and he did not
saw that Agaton boxed or hit the herein complainant Estela
contrary what is stated in his first Sinumpaang Salaylay in favor
of the herein complainant. The testimony if also admitted will
create a iota of doubt that this violation of R.A 9262 have not
been committed.

The Supreme Court states that the substance and spirit of

Criminal Law is one of LIBERALITY in favor of the accused in
case of the existence of a reasonable doubt.

1. Jurisprudence. - In other words, when there is

equilibrium in the evidence presented by both sides, the
CONSTITUTIONAL PRESUMPTIOM OF INNOCENCE should
tilt the balance of the scale in favor of the acquittal of
the accused, for, in such a situation, the offense has not
 been proven beyond reasonable doubt, which is the
quantum of evidence required to convict an accused.

Only by proof beyond reasonable doubt, which requires

moral certainty, may the presumption of innocence be
overcome (People vs. Custodio, 47 SCRA 289 [ 1972]).

Moral certainty has been defined as "a certainty that

convinces and satisfies the reason and conscience of
those who are to act upon it" (People vs. Lavarias, 23
SCRA 1301 [1967]).

Proof beyond reasonable doubt is needed to overcome the

presumption of Innocence (People vs. Reyes, 60 SCRA
126 [1974]).

The Supreme Court has held that Courts should be guided

by the principle that it would be better to set free ten
men who might be probably guilty of the crime charged
than to convict one innocent man for a crime he did not
commit. [En Banc, Melo, People v. Tagudar [G.R. No.
130588. June 8, 2000].

II.
The Salaysay dated January 11, 2008 on 2:00 o’clock at Liliw
Laguna police station of FELICIANO GUSAY Y VIOLANTA @
“FREDIE” was a sham and obtained thru fraud and mistake due
to the fact that he does not know what is the content of that
document, being an illiterate, he just merely signed it without
knowing and explaining its real content.

He thought that it was for just for a statement that he was

physically present during January 17, 2008.

He refrained from testifying due to the fact that the content of

that Salaysay was contrary to his way of reasoning and he did
not actually saw what really transpired on January 17, 2008.

This evidence couldn’t have been discovered and produced at

the trial even with the exercise of reasonable diligence.

And if this testimony be admitted the decision would probably

change the result of the trial therefore absolving the herein
accused.

The admission of Agaton was made through palpable mistake

on his part as this was a product of emotional distress not
knowing or understanding things out, he wishes to rectify and
to deny the same.

In People v. Alicante, 332 SCRA 440, and People v.

Junio, 237 SCRA 826, the Philippine Supreme Court
reiterated the long-held doctrine in Philippine
jurisprudence that an afterthought had no probative value.
It would make a solemn trial a mockery and place the
investigation at the mercy of unscrupulous witnesses. A
recantation can be easily secured from poor and ignorant
witnesses, usually for money, and is exceedingly
unreliable, the Court stated.

The exception to this rule is when aside from the

testimony of the retracting witness, there is no other
evidence to support the conviction of the accused. In this
case, “the retraction by the sole witness creates a doubt in
the mind of the judge as to the guilt of the accused. A new
trial may be granted”.

Here the Salaysay of FELICIANO GUSAY Y VIOLANTA is the

lone witness of the prosecution regarding this case, moreover
herein witness did not appear in court due to the fact that it is
contrary to what he believes in its content and how it was explained
that document to him, being an illiterate he merely affixed his
signature to that document without reading it making that
document questionable and creating a iota of doubt being a sole
witness for the prosecution who has actually “in the pretext” of have
seen actually this violation. Please see attached Sinumpaang
Salaysay as Annex “A” for comparison of Annex “B”.

In addition the guidelines set by Supreme Court regarding

retraction of testimony of witness is not applicable in this case, due
to the fact that the testimony of herein witness did not repeat what
is stated in this document in open court thereby making this
document a sham and without effect, in fact he refrained from
testifying in court when the court are hearing this case as it is
contrary to his human logic and conscience to testify against any
person that is not guilty of the any crime. Please see attached
Sinumpaang Salaysay as Annex “B” herein.

Moreover, this statement retracted is not secured by any price,

promise, consideration or reward, the accused being a shoemaker
does not have enough or sufficient means to bribe someone for high
amount of money or consideration, hence the herein witness was
merely motivated by human conscience and desire to correct the
injustice in our society especially in this case as being the only and
sole witness for this crime.
The admission of Agaton was made through palpable mistake
on his part as this was a product of emotional distress not
knowing or understanding things out, he wishes to rectify and
to deny the same on new trial.

RULE 129

Section 4. Judicial admissions. — An admission, verbal or written,

made by the party in the course of the proceedings in the same
case, does not require proof. “The admission may be contradicted
only by showing that it was made through palpable mistake or
that no such admission was made”.

In the case at bar, the decision therein has not yet become final and
executory as of the filing of this omnibus motion.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed

that the Decision, dated February 7, 2018 which is promulgated
and received on March 9, 2018, be SET FOR NEW TRIAL, to enable
the accused to introduce material exculpating evidence that could
not have produce during the trial which can establish his innocence
which will therefore ACQUIT him in this case.

Other just and equitable reliefs are also prayed for.

RESPECTFULLY SUBMTTED.
Pagsanjan for Sta. Cruz, Laguna
March , 2018.

TORADIO R. ESPLANA
Counsel for the Accused
PTR No. 5549317 03 Jan 2019
Pagsanjan, Laguna
IBP LT No.013554 Roll No. 52577
MCLE Compliance No. V-0021982
Issued on 13 June 2016
 NOTICE

THE CLERK OF COURT

Branch 26
Regional Trial Court
Santa Cruz, Laguna

Greetings:

Please take notice that the undersigned counsel will submit

the foregoing Motion for the consideration and approval of the
Honorable Court on March 19, 2018 at 2:00pm.

TORADIO R. ESPLANA

Copy Furnished:

Office of the Provincial Prosecutor

Santa Cruz, Laguna