MANILA, Philippines?Government prosecutors have opposed the move of a former policeman who asked a Manila court to dismiss the case against him, saying he was not positively identified by witnesses as among those involved in the Dacer-Corbito double murder case.

According to State prosecutors led by Philip Kimpo, P02 Thomas Sarmiento's manifestation and motion appealing for the dismissal of the case against him, as one of the accused, should be denied because it is "untimely, premature, unprocedural and not sanctioned by the Rules."

"From its context and the relief that it seeks, it has for its aim the dismissal of the case against accused Sarmiento on the ground that he was not positively identified by prosecution witnesses. It therefore serves the same purpose as that of a demurrer to evidence," the prosecutors said in a comment / opposition they filed before the Manila regional trial court Branch 18 which hears the case.

Sarmiento was among the 22 persons charged in the killings of publicist Salvador "Bubby" Dacer and his driver Emmanuel Corbito in 2000.

Sarmiento's lawyer, Alex Avisado, earlier noted that a witness, former Supt. Glenn Dumlao, had failed to identify Sarmiento during the Nov. 12 hearing. Dumlao, he added, referred to a certain "Mario Sarmiento" and not Thomas Sarmiento in his affidavit.

Avisado's motion and manifestation was even supported by Sarmiento's co-accused, former Senior Supt. Cezar Mancao, who said that he did not know Sarmiento and he has no knowledge of the latter's participation in any stage or segment of the crime.

In a manifestation submitted to the court by his lawyer Ferdinand Topacio, Mancao said that Sarmiento may be a victim of mistaken identity.

The prosecutors recalled that when they formally offered on Aug. 22, 2008 documentary evidence, which was eventually admitted by the court in its Jan. 5, 2009 order, Sarmiento filed a Demurrer to Evidence where he raised the same argument of lack of positive identification and which was denied by the court on May 28, 2009.

On Aug. 24, 2009, the prosecution filed an omnibus motion to, among other things, "re-open prosecution evidence to receive additional evidence not otherwise available to the prosecution before it rested its case," which the court granted in its Nov. 11, 2009 order.

To date, the prosecution is in the middle of presenting its evidence on the main case and in support of its motion to discharge Mancao as an accused to become a state witness.

"In fact, prosecution witness Glenn Dumlao's cross-examination has yet to be completed, the State prosecutors said. "More prosecution witnesses could possibly be forthcoming after Dumlao's testimony has been completed.

In short, the prosecution has yet to wrap up the presentation of its evidence ... (the) action taken by accused Sarmiento in the guise of a simple manifestation and motion is in fact a demurrer to evidence."

"Verily, a demurrer to evidence can be invoked only after the prosecution has rested its case. Clearly, the instant manifestation and motion suffers from prematurity," the public prosecutors added.