Maria Christina E.

Gaviola LEGFORMS 3B

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Manila

CA G.R. No. 32705

PEOPLE OF THE PHILIPPINES

Plaintiff-Appellee

-versus-

TOMMY MALAY
Defendant-Appellant

BRIEF FOR THE APPELLANT

MONTERO & MONTERO LAW OFFICE

Counsel for Plaintiff-Appellee
110 Zobel Street, Makati City

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 SUBJECT INDEX

STATEMENT OF THE CASE

AND FACTS 3

ASSIGNMENT OF ERRORS/GROUNDS
FOR APPEAL 4

ARGUMENTS

1. The Honorable Court erred in failing to appreciate

and sustain accused-appellant’s defense in light of
existing jurisprudence 5

RELIEF 6

AUTHORITIES CITED
1. Statute

 R.A. 6539, Anti-Carnapping Act of 1972

2. Jurisprudence

 People vs. Abellanos [G.R. No. 121195, 27 November 1996]

 People vs. Gallo [G.R. No. L-70193-96, 11 January 1988]

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 Republic of the Philippines
COURT OF APPEALS
Manila

PEOPLE OF THE PHILIPPINES

Plaintiff-Appellee,

-versus Civil Case No. 187560

For: Carnapping

TOMMY MALAY
Defendant-Appellant,
x----------------------------------------------------------x

APPELLANT’S BRIEF
Accused-Appellant, TOMMY MALAY, by undersigned counsel and to this Honorable
Court, respectfully submits that:

STATEMENT OF THE CASE

1. Accused Tommy Malay, then 16 years old, was charged with conspiring and
confederating with four other accused in committing the crime of Violation of Republic Act No.
6539, otherwise known as the Anti-Carnapping Act of 1972, as amended, in its aggravated form;

2. The Information that was filed, read as follows:

“That on 2000 May 18, at about 4:40 a.m. in the City of Manila and within the
jurisdiction of this Honorable Court, accused conspiring and confederating with one
another, did then and there willfully, unlawfully and feloniously steal one motor vehicle
described as BMW S5 convertible, Model No. 666, with license number RJA-273, Chasis
No. KKKKDDDLL covered by Certificate of Registration No. 12345, Official Receipt No.
909878 registered in the name of Ms. Celine Lopez, by intentionally killing its driver, Boy
Bachus, in the course of its commission, to the damage and prejudice of the victim and the
owner.
ACTS CONTRARY TO LAW.”

3. At the arraignment on 28 January 2001,Accused entered a plea of “NOT GUILTY”;

4. A pre-trial was conducted during which no stipulation of facts was entered into and
the parties marked their respective documentary exhibits to be used as evidence. Thereafter, trial
commenced.

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 5. The prosecution presented a total of three (3) witnesses while the defense presented
two (2) witnesses.

6. On 9 November 2002, the case was considered submitted for submission;

7. On 18 January 2003, the Regional Trial Court, Branch 22, Manila, rendered a decision
finding accused TOMMY MALAY and co-accused NIÑO TORRES guilty. The dispositive
portion of the decision reads as follows:
“WHEREFORE, the judgment is hereby rendered finding accused TOMMY
MALAY and NIÑO TORRES GUILTY beyond reasonable doubt of the crime of
Carnapping with Homicide or Violation of Republic Act No. 6539 in its aggravated form,
otherwise known as the Anti-Carnapping Act of 1972 and each of them is hereby
sentenced to an indeterminate sentence of ten (10) years of prision mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal as maximum with
accessory penalties and to pay, jointly and severally, the heirs of the victim, the following
amounts:
1. P50,000.00 as indemnity for death;
2. P50,000.00 as actual damages;
3. P500,000.00 as moral damages;
4. P30,000.00 as compensation for lost earnings;
5. The costs of suit.”

A certified copy of the Decision dated 18 January 2002 is attached to the original of
this Brief and photocopies thereof are attached to the other copies hereof as Annex “A”;

STATEMENT OF FACTS

1. On or about 4:30 a.m. of 18 August 2000, along Padre Faura St., Malate, Manila, a
BMW S5 Convertible ridden by victim Boy Bachus and Chenny Chobibo was blocked by a black
Honda Civic;

2. A man alighted from the car, approached the BMW Convertible, and ordered the
victim to get off the car;

3. The perpetrator held a gun and pulled the victim Boy Bachus by his arm and forced
him out of the car;

4. Chenny Chobibo stepped out of the car and hid behind the electric post. As she
crouched down, she heard three shots fired;

5. After the she heard the cars leave, Chobibo got out from her hiding place and found
the victim lying on the ground;

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 6. She was able to flag down a police car and they brought the victim to the hospital;

7. At 6:00 p.m. that night, the victim died;

8. In the afternoon of 23 August 2000, the accused Baguio Buakaw, Melchor Menor,
Domenik Askerov, and Tommy Malay were apprehended by police officers from their homes.

ASSIGNMENT OF ERROR

I. The Honorable Court erred in failing to appreciate and sustain accused-appellant

Malay’s defense in light of existing jurisprudence.

ARGUMENTS AND DISCUSSION

I. The defense of alibi should not be

immediately take against him, as
in light of all the evidence taken
together, it may be sufficient to
acquit him.

Accused-appellant, Tommy Malay, testified that he does not know how to drive a
vehicle. This fact remained unchallenged. Thus, could not have been the gunman. Furthermore,
the result of his paraffin test revealed that he was negative of powder burns. These facts were not
appreciated favorably by the Honorable Court. The accused, who was just 16 years of age when
he was accused of the said crime is left with the only evidence and explanation he could give to
exonerate himself of the crime—that he was resting home at the time of the incident—an alibi.

An “alibi” is considered as a weak defense. However, the evidence presented by the

prosecution itself is weak. In People vs. Abellanos [G.R. No. 121195, 27 November 1996], it was
held that when an accused raises the defense of alibi, the court should not immediately or at once
have a mental prejudice against him or her as, in light of all the evidence on record, it may be
sufficient to acquit him or her. In People vs. Gallo [G.R. No. L-70193-96, 11 January 1988], the
Court held that an alibi is indeed weak but that fact alone does not justify the judgment of
conviction, for the burden of proof lies with the prosecution. Failing to establish the guilty of the
accused by proof beyond reasonable doubt, the prosecution cannot rely on the weakness of the
defense, especially when the witness presented is not an actual eye witness to the commission of
the alleged crime committed. This fact obtains in the case.

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 PRAYER

WHEREFORE, premises considered, it is humbly prayed of this Honorable Court that the
Decision dated 18 January 2002 of the lower court be REVERSED with costs against the
appellees.

Other reliefs just and equitable under the premises are likewise prayed for.

Makati City, 11 September 2004.

MONTERO & MONTERO LAW OFFICE

Counsel for Accused-Appellant
110 Zobel Street, Makati City

By:

Maria Christina E. Gaviola

Copy Furnished:

Office of the Solicitor General

132 Amorsolo St., Legaspi Village,
Makati City

Diaz, Dominguez, Alcantara Law Office

Public Attorney’s Office
No. 66 Starboard Street, La Hista, Makati City

EXPLANATION
(Pursuant to Section 11, Rule 13
1997 Rules of Civil Procedure)

Undersigned counsel informs this Honorable Court that this Memorandum of Appeal was
furnished and filed by registered mail due to lack of messengerial services.

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 VERIFICATION

I, TOMMY MALAY, a Filipino, of legal age, after having been duly sworn to in
accordance with law, hereby depose and state that:

1. I am the Accused-Appellant in the above-entitled case;

2. I have caused the preparation of the foregoing Appellant’s Brief; and
3. I have read the contents thereof and understood the same, and attest that the
allegations contained therein are true and correct of my own personal knowledge or
based on authentic records.

TOMMY MALAY

SUBSCRIBED AND SWORN to before me this __________, in the City of Makati, affiant
exhibiting her Community Tax Certificate No.____________________, issued
at______________ on _____________________.

Doc. No. ______;

Page No. ______;
Book No. ______;
Series of 2006.