Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
BRANCH 123.
Pasig City
PEOPLE OF THE PHILIPPINES,
Plaintiff,
CRIM. CASE NO, 1234-H
-versus-
FOR: Violation of R.A. 6739
(Anti-Carnapping Act)
ROMULO C. TAKAD,
Accused.
Reteeeeeceecennseecnenn seen eennen seen,
DEFENDANT'S MEMORANDUM
Defendant, through counsel, respectfully submits its
Memorandum in the case:
STATEMENT OF THE CASE
On November 22, 2003, an information was filed in the name
of the Republic of the Philippines charging the accused Romulo C.
Takad for willful violation of R.A. 6739, otherwise known as the
Anti-Carnapping Act of 1972 when the latter allegedly with intent
to gain and without knowledge and consent of the owner,
willfully, unlawfully and feloniously take, steal and drive away a
Kawasaki motorcycle with sidecar, colored black, bearing plate
No, TU-9952, with a value of P80,000.00, belonging to Bayan
Development Corporation, represented by Zenny G. Aguirre, to
the damage and prejudice of the latter.
STATEMENT OF THE FACTS
‘On May 3003, Bayan Development Corporation, BDC for
brevity, extended a group loan to SCCPPTODA 2 (Samahan) in
the amount of 480,000.00 pesos. The loan was evidenced by a
1promissory note, chattel mortgage, and the “Kasunduan” signed
by the borrowers, including Ma. Teresa Lacsamana (Lacsamana)
who received 80,000.00 pesos as her share in the group loan.
The proceeds of the loan were for the purpose of procuring a
tricycle by members of the group. The term of the loan is for 30
months with an interest rate of thirty six percent per (36%) annum
payable in daily installment.
A tricycle bearing plate No. TU-9952 was released by BDC to
Lacsamana. The certificate of Registration and the Official Receipt
issued by the Land Transportation Office were in the name of Ms.
Lacsamana.
On July 2002, Ms. Lacsamana defaulted to pay the
installment for fifteen days. And the tricycle was pulled out in the
possession of Ms, Lacsamana and delivered the same to the
treasurer of the group Mr. Ricardo Marasigan (Marasigan), for the
latter to temporarily manage it in compliance with the condition of
the “Kasunduan” on October 2, But the temporary management
of Marasigan lasted only for fifteen (15) days because on October
18, it was pulled out by BDC.
BDC, through its account officer, Ms. Zenny G, Aguirre
(Aguirre), give Ms. Lacsamana gave a deadline until October 17
within which to redeem the tricycle.
On October 18, Lacsamana and the accused, Romulo C.
Takad (Takad), went to the office of BDC to redeem the tricycle,
but their payment was refused by Aguirre without giving any
reason despite of having enough money to pay the balance of
14,000.00 pesos. Then, Takad pleaded to Aguirre that if possible,
he should not see the tricycle in Pasig because it was going to hurt
him.
However, according to Lacsamana, she was not able to pay
on the deadline because she only obtained the money in the
afternoon, and when she went to BDC, it was already closed.
On November 20, the tricycle was given to Carlos Parlade
(Parlade), as the new assignee who happened to be also a resident
of Pasig City. But no deed of assignment was executed because
before they could draw up one, at 1:00 o'clock in the morning of
November 21, the said tricycle was missing. According to Parlade,
he parked the tricycle in from of his house and entered the house,
and when he came back to chain the tricycle, he saw someone
pushing the tricycle away; he shouted at him, the latter turned and
faced Parlade; kicked start the engine and drove away, Parlade
2chased after him, but since the tricycle ran at about twice the
normal speed of other tricycle passing in the street of West Road,
Maybunga, Pasig City, he was not able to catch him up.
During the incident, Mario Mankas (Mankas), a neighbor,
just finished playing computer in a nearby house; when he was
washing his hand at the gate in the front yard facing the road, he
saw Parlade running after the tricycle. But because of his position
(bowing down in the faucet), he did only glance briefly at the
carnapper, according to him, he could only identify the built of his
body, not his face.
At7 o'clock in the morning, same date, Parlade reported the
theft incident to DBC, through Aguirre. During their conversation,
Aguirre automatically recalled what the accused told her, when
the latter went to their office with Lacsamana, that “he should not
see the tricycle in Pasig.” This statement gave her a doubt that it
was the accused stole the tricycle.
At 1 o'clock in the afternoon of the same day, they reported
the incident to the police. And the Police Officers immediately
acted on the report of Parlade and Aguirre; went to the house of
the accused and arrested him; and brought him to the police
station.
At the police station, 5:30 in the afternoon of the same day,
Parlade went back to the police station because he was told by the
police that they had captured the person who allegedly stole his
tricycle, and requested him to identify the carnapper. However,
the police did not shown the accused at the police line up with
other persons of the same built, so that Parlade could try to pick
him out as the tricycle theft, instead, the police investigator led
Parlade into a room, pointed out Takad, and ask if he is the one
who took the tricycle. And at that time, Parlade was able to clearly
identify the physical description of the suspect.
Parlade also brought Mankas to the police station to identify
the person who stole his tricycle and gave his testimonies that he
saw the incident. The police investigator also did not show the
accused in a police line up, instead, someone pointed the accused
Takad to him. After having a good look at the accused, Mankas
gave the physical description of the person who stole the tricycle
while Takad is in the room. And because Mankas is looking at
Takad, he was able to say that the theft was medium built.ISSUES.
Based on the facts presented, whether or not the accused is
guilty beyond reasonable doubt for willful violation of R.A. 6739,
otherwise known as the Anti-Carnapping Act of 1972.
To clearly resolve the main issue, it is just proper that the
following issues be defined and the arguments be properly
resolved:
1. Whether the testimonies of the prosecution's witnesses:
are sufficient to prove that the accused is guilty beyond reasonable
doubt; and
2. Granting that the evidence of the prosecution is
sufficient to prove that the accused is the one who took the
tricycle, whether or not the third element of the crime of
carnapping is present: that the vehicle belongs to a person other
than the defendant himself.
ARGUMENTS
L
THE TESTIMONIES OF THE PROSECUTIONS
WITNESSES ARE NOT SUFFICIENT TO PROVE THE GUILT OF
THE ACCUSED.
The allegations in the affidavits of the prosecution's
witnesses are based on presumption believed by the Aguirre.
When the Parlade reported the theft incident to Aguirre, the latter
immediately connect the incident to the statement made by the
accused during their conversation on October 18 when Lacsamana
and the accused went to the office of BDC to redeem the
motorcycle, Aguirre recalled the accused saying that “he should
not see the tricycle in Pasig’, which she immediately relayed to
Parlade. Based on this presumption, the sworn affidavit executed
by the witness Mr. Parlade is directed to the accused, which
immediately became the main suspect of the carnapping.
And in addition, several inaccuracies and factual errors were
noted in the statements of the witnesses during the cross
examination, to wit:
First, witness Mr. Parlade is a member of Maybunga
Security Force (Security Force), which is involve in looking for
persons who commit crimes in their barangay. As a member, he
should have been aware that it is very important to give a good
4description of the suspect. And the fact that the he saw the
carnapper’s face; he should have included the detailed description
of the face in his sworn statement. And even if the police did not
ask the details of its face, based on his experience as a member of
Security Force, he is presumed to know its importance for the
identification of the suspect.
Considering his experience, witness should have included in
its affidavit the detailed description of the face of the suspect; that
he has a light complexion and has a pronounced jaw. And its
lure to include in the affidavit will give doubt on reliability of
statement pinpointing the accused as the carnapper.
In addition, the witness gives a description as to the length
of the hair of the carnapper in its affidavit, but the important
details as to the shape of the face and the complexion of the skin.
were not include in the statement, it goes to show that the theft
may or may not have a fair complexion and a pronounced jaw.
However, witness Aguirre associated the warning made by the
accused to the carnapping incident, Parlade was induced to
believe that it was really the accused who have committed the
crime of carnapping, which belief is merely circumstantial.
Speculations and probabilities cannot substitute for proof required
to establish the guilt of the accused beyond reasonable doubt! Ina
criminal case, every circumstance favoring the innocence of the
accused must be duly taken into account?
Second, several inconsistencies were noted during the trial
and crass examination of the witness Mr. Parlade;
When the witness said during the trial that he saw the
accused pushing the tricycle, and he was five meters away from
him, the defense counsel asks and said, “in other words, he is
somewhat near you", the witness replied, “yes, sir, nmedyo malapit
siya”. However, in the affidavit executed by the witness indicating
the distance of the accused from him at the time, the statement
shows that the witness said that, “nang makita ko medyo malayo
na ang tricycle na itinutulak ng isang tao”;
Other inconsistency noted during the trial was when the
witness testified that he clearly saw the face of the accused
because the latter faced him when he shouted, but when the
1 People vs. BAULITE G.R. No, 137599 [2001], citing People v. Jumao-as, 230
SCRA 70 [1994].
2 People vs. BAULITE, supra, citing People v. Sinatao, 319 Phil. 665, 687 [1995],defense counsel ask the duration of the glance by the accused to
the witness, the latter said, “opo, hindi po, medyo matagal po",
and when ask to clarify his answer, he said, “opo, medyo matagal
po". The fact that the purpose of the man was to flee, the glance
should have been for a very short time, inconsistent with what the
witness testified;
Therefore, these inconsistent statements by witness Mr.
Parlade make his testimony not credible. It goes to show that he is
not really sure of whom he saw, ner the identity of the carnapper.
Third, the testimony of witness Mankas is not convin
enough to identify the accused as the one who stole the tricycle.
According to the sworn statement of witness Mankas, the
carnapper drove the stolen tricycle very fast, in fact he testified
during the cross examination that it was “at least twice the usual
speed of the tricycle running on that road after midnight”
(referring to the street where he saw the carnapper), he also
testified that he had only a brief glance of the driver. The fact that
tricycle was running very fast and his head was bowed down,
though facing the road, when he saw the carnapper, the witness
could not satisfactorily gave adequate description of the
carnapper, this was corroborated in paragraph 5 of his affidavit,
“hindi ko gaanong namukhaan dahil nakayuko ako", Instead, he
only said that he could only describe his built, and further testified
that he could be able to identify him partly by how his body
moved. But when he was cross examined, he testified that he only
saw the carnapper sat still on the tricycle holding the steering bars
as the tricycle sped away from him, contrary to its statement that
he could identify the carnapper partly by how his body moved,
where in fact, the carnapper did not stand on the seat, wave his
arm nor swing his body.
In other words, because the witness cannot sufficiently
identify the carnapper with reasonable certainty, his statement in
its sworn statement regarding the physical built of the accused is
based not on the description of the carnapper during the incident
but to the physical built of the accused based on what he saw in
the police station. This was confirmed in the transcript of
stenographic note taking during the cross examination of the
witness Mankas:
Q: Did the police place the accused Takad on the line
of several men who were more or less of the same
built as he was?A: No, Sir. He was just sitting.
And when you entered the room, someone
y
pointed the accused Takad to you. Is that right?
Yes, Sir,
So, before you gave your statement to the police,
you already has a good look at Takad?
Yes, Sir.
So, when you were asked to describe the physical
built of the person who stole the tricycle, Takad
was there in the room with you. Is that right?
A: Yes, Sir,
Q: Because you were looking at him there, you were
able to say that he was medium built. Is that right?
A: Yes, Sir.
Q: In that room?
A: Yes, Sir.
Therefore, the witness was not really referring to the
detailed physical built of the carnapper when he gave the
statement to the police, because he was just describing the
physical built of the accused as he saw him in the police station.
Fourth, when the accused Takad was present to the
persecution’s witnesses Parlade and Mankas, accused was not
placed in a police line-up contrary to standard station house
verification procedures employed to test the memory of the
witness?
An underhand mode of identification somehow undermines
the reliability of an accurate identification of an accused, once so
described by this Court as being "pointedly suggestive, generated
confidence where there was none, activated visual imagination,
and, all told, subverted their reliability as eyewitnesses. This
unusual, coarse and highly singular method of identification,
which revolts against the accepted principles of scientific crime
3 People vs. Nifio, G.R. No. 121629 May 19, 1998
7detection, alienates the esteem of every just man, and commands
neither our respect nor acceptance.
Verily, in one case decided by the Supreme Court, it held
that “while it is not shown that Alejandra has been impelled by
any ill-motive to testify against the accused, such circumstance,
however, does not guaranty that she could not have made an
‘honest mistake” $
Due to the aforementioned inaccuracies and factual errors
noted, the testimonies of the prosecution's witnesses were not
convincing to warrant the rendition of judgment against the
defendant. The prosecution failed to prove the guilt of the accused
beyond reasonable doubt as required by the rules of court.
Section 2, Rule 133 of the Rules of Court, provides:
“Sec. 2.Proof beyond reasonable doubt — in @ criminal
case, the accused is entitled to an acquittal, unless his guilt is
shown beyond reasonable doubt. Proof beyond reasonable
doubt does not mean such a degree of proof, excluding
possibility of error, produces absolute certainly. Moral
certainly only is required, or that degree of proof which
produces conviction in an nuprejudiced mind.”
To warrant conviction, "The rule is clear. The guilt of the
accused must be proved beyond reasonable doubt. The
prosecution, on its part, must rely on the strength of its own
evidence and must not simply depend on the weakness of the
defense. The slightest possibility of an innocent man being
convicted for an offense he has never committed, let alone when
no less than the capital punishment is imposed, would be far more
dreadful than letting a guilty person go unpunished for a crime he
may have perpetrated."* "On the whole then, the scanty evidence
for the prosecution casts serious doubts as to the guilt of the
accused. It does not pass the test of moral certainty and is
insufficient to rebut the presumption of innocence which the Bill
of Rights guarantees the accused. It is aproposto repeat the
doctrine that an accusation is not, according to the fundamental
law, synonymous with guilt; the prosecution must overthrow the
+ People ws, Cruz, 325CRA 181, 186 [1970].
5 Peaple vs. Robles, 92 SCRA 117 [1979].
* People v. Manzano, 227 SCRA 780, 787 [1993]presumption of innocence with proof of guilt beyond reasonable
doubt?
In the case of People of the Philippines v Jenny Tumambing
¥y Tamayo*, the Supreme Court ruled that: “A successful prosecution
‘ofa crintinal case action largely depends on proof of two things:
1. The identification of the author of the crime; and
2. His actual commission of the same.
An ample proof that a crime has been committed has no use if the
prosecution is unable to convincingly prove the offender's identity. The
constitutional presumption of innocence that an accused enjoys is not
demolished by an identification that is full of uncertainties.”
IL
THE THIRD ELEMENT OF THE CRIME OF CARNAPPING
IS NOT PRESENT; THE VEHICLE BELONGS TO THE
DEFENDANT HIMSELF.
Carnapping has been defined under R.A. No. 6539 as the
taking, with intent to gain, of a motor vehicle belonging to another
without the latter's consent, or by means of violence against or
intimidation of persons, or by using force upon thing.
To constitute a crime of carnapping, the following elements
must concur:
1. that there is an actual taking of the vehicle;
2. that the offender intends to gain from the taking of the
vehicle;
3. that the vehicle belongs to a person other than the
offender himself; and
4. that the taking is without the consent of the owner
thereof, or that the taking was committed by means of
violence against or intimidation of persons, or by using
force upon thing?
Even if the evidence of the prosecution is sufficient to prove
that the accused as the one who took the tricycle, to warrant
? People v, Dismuke, 234 SCRA 51, 61 [1994], citing People v. Dramayo, 149
Phil, 107 [1971]; People v. Garcia, 215 SCRA 349 [1992].
*G.R No. 191261, March 2, 2011
9 People vs. Garcia, G.R. No. 138470 [2003]
aconviction, all the elements of the crime of carnapping must
concur. This crime involves the taking of a vehicle, and the act of
taking along does not constitute a crime, there is a need to
establish the identity and intent of the offender, the consent of the
owner, and with equal importance, is the ownership of the vehicle
taken does not belong to offender himself. If the crime of
carnapping can be prosecuted against the person who has right
over the vehicle, it could lead to an absurd situation; owner is
prosecuted for taking back his own property which he has a better
right over other person.
Upon careful examination of the case, undisputed is the fact
that the registered owner of the stolen Kawasaki motorcycle with
sidecar, colored black, bearing plate No. TU-9952 is Ms.
‘Lacsamana. The certificate of Registration and the Official Receipt
issued by the Land Transportation Office were in her name.
And established is the fact that the accused Takad and the
registered owner of the stolen vehicle were live-in partners, Hence
property regime is governed by the rules of co-ownership;
Under Article 147 of the New Civil Code:
“When a man and a woman who are capacitated to
marry each other, live exclusively with each other as husband
and wife without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by themt in
equal shaves and the property acquired by both of thenr
through their work or industry shall be governed by the
rules on co-ownership.”
“In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to have
been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former's
efforts consisted in the care ond maintenance of the family and
of the household.”
“Neither party can encumber or dispose by acts inter
vives of his ar her share in the property acquired during
cohabitation and owned in common, without the consent of
the other, until after the termination of their colabitation.
When only one of the parties to a void marriage is in good
{faith the share of the party in bad faith in the co-ownership
10shall be forfeited in favor of their common children, In case of
default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of
descendants, such share shall belong fo the innocent party. In
all cases, the forfeiture shall take place upon termination of the
cohabitation.”
Considering that Art. 147 of the Family Code explicitly
provides that the property acquired by both parties during their
union, in the absence of proof to the contrary, are presumed to
have been obtained thru the joint efforts of the parties and will be
owned by them in equal shares, plaintiff and defendant will own
their properties for that matter in equal shares."
Thus, the stolen tricycle is co-owned by the accused Takad
and his live-in partner Lacsamana. Each of them shall have the
full ownership of his part and the fruits and benefits pertaining
thereto.
The ownership of the stolen vehicle remains with the
accused Takad and Lacsamana. Evidence on the record and the
provisions of law supports this position, to wit:
First, there is nothing in the Kasunduan which divest
ownership of the tricycle to the SAMAHAN or to BDC;
Article 15.1 of the Kasunduan states that "Kapag
ang isang kasapi ay hindi makabigay ng tatlong karampatang
arawang hulong-bayad sa luob ng isang kinsenas o
napapaloob sa isang tseke sa BDC, ang kanyang tricycle ay
highatakin. ng SAMAHAN kasama ug linya (TODA) atfo
prangkisa at ito ay pangangasiwaan ng SAMAHAN upang
ang armwang kita nito ay fewirang gagamitin ng
SAMAHAN para sa darating na arawang hulog-bayad ng
kasaping ngkasala”;
Hence, the registered owner and the accused did not covey
their ownership over the tricycle to the SAMAHAN, the latter's
position of the said tricycle pertains only to the management and
administration for the satisfaction of the obligation of the
delinquent debtor.
1 Paras, Civil Code Book 1 discussion on property regime of unions without
marriage
4 Article 493 of the New Civil Code
1Second, even if Lacsamana failed to pay its installment due
to BDC, mortgagee, it does not mean that the latter automatically
becomes the owner of the property mortgaged. It only means that
the property mortgaged may be sold (to anybody, including the
creditor) so that from the proceeds of such alienation the debt
might be paid.
Moreover, under Article 2088 of the New Civil Code,
provides:
“Art. 2088. The creditor cannot appropriate the things
given by way of pledge or mortgage, or dispose of them. Any
stipulation fo the contrary is null and void,”
The right of possession over the tricycle by BDC is only for
the latter to sell and recover unpaid obligation. However, such
right to sell or assign was overwhelmed by the provision of the
Kasunduan (Article 15.1) signed by BDC and the borrowers,
including Lacsamana.
Third, itis undisputed that Lacsamana and the accused went
to BDC to redeem the tricycle. Thought they were not able to meet
the deadline set by Aguirre, they still have the right to redeem it
because the tricycle was not yet sold nor assign to others person.
The refusal of DBC to accept the payment were baseless, they
should have allowed them to pay the arrears; such right is
expressly provided for by Section 13 of the Chattel Mortgage Law
(Act No. 1508), provides:
“SEC. 13. When the condition of a chattel mortgage is
broken, a mortgagor or person holding a subsequent
mortgage, or a subsequent attaching creditor may redeem the
same by paying or delivering to the mortgagee the antount
due on such mortgage and the reasonable costs and expenses
incurred by such breach of condition before the sale thereof.
An attaching creditor who so redeems shall be subrogated to
the rights of the mortgagee and entitled to foreclose the
mortgage in the same manner that the mortgagee could
foreclose it by the ternrs of this Act.”
Thus, the refusal by BDC to allow the redemptioner to pay
their arrears has no legal basis, and the subsequent assignment
made by it to Mr. Parlade is null and void, and consequently,
ownership of the tricycle remains and was never severed from the
"2 Villarama v. Crisostomo, (C.A,] 54 O.G. 6894 and El Hogar Filipina v. Paredes,
45 Phil 178
2registered owner Lacsamana and her live-in partner, the accused
Takad.
CONCLUDING STATEMENT
Therefore, Romulo Takad is entitled to an acquittal. In this
case where the accusations were based on circumstances and
testimonies of the witnesses, the prosecution should establish
overwhelming evidence that the accused is guilty of the crime
beyond reasonable doubt. And where the testimonies do not
present convincing proof to the identity of the carnapper because
of the inconsistencies and factual errors established in the trial, itis
but proper to acquit the accused.
Furthermore, being the co -owner of the stolen tricycle, the
accusation of the crime of carnapping does stand against the
accused
PRAYER
Wherefore, premised considered, it is most respectfully
prayed that judgment be rendered acquitting the accused for the
crime of carnapping.
Pasig City, October 19, 2013
CLAYTON M. DELGADO
Counsel for the accused
Pasig City
Atty. Roll No. 32145
Copy furnished:
ATTY. ISIDRO T. DE LEON
Public Prosecutor
Pasig City
Atty. Roll No. 21345
a