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 -versusFOR: Violation of R.A. 6739 (Anti-Carnapping Act) ROMULO C. TAKAD, Accused. x---------------------------------------x

DEFENDANTS MEMORANDUM Defendant, through Memorandum in the case: counsel, respectfully submits its

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
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promissory 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 oclock 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
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chased 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. At 7 oclock 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 oclock 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 prosecutions 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 I. THE TESTIMONIES OF THE PROSECUTIONS WITNESSES ARE NOT SUFFICIENT TO PROVE THE GUILT OF THE ACCUSED. The allegations in the affidavits of the prosecutions 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
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description of the suspect. And the fact that the he saw the carnappers 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 failure to include in the affidavit will give doubt on reliability of its 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.1 In a criminal case, every circumstance favoring the innocence of the accused must be duly taken into account.2 Second, several inconsistencies were noted during the trial and cross 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, medyo 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
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].
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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, nor the identity of the carnapper. Third, the testimony of witness Mankas is not convincing 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?
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A: Q: A: Q: A: Q:

No, Sir. He was just sitting. And when you entered the room, someone 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? Yes, Sir. Because you were looking at him there, you were able to say that he was medium built. Is that right? Yes, Sir. In that room? Yes, Sir.

A: Q: A: Q: A:

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 persecutions 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.3 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

People vs. Nio, G.R. No. 121629 May 19, 1998

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detection, alienates the esteem of every just man, and commands neither our respect nor acceptance."4 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.5 Due to the aforementioned inaccuracies and factual errors noted, the testimonies of the prosecutions 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 a 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 unprejudiced 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."6 "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 apropos to repeat the doctrine that an accusation is not, according to the fundamental law, synonymous with guilt; the prosecution must overthrow the

People vs. Cruz, 32 SCRA 181, 186 [1970]. People vs. Robles, 92 SCRA 117 [1979]. 6 People v. Manzano, 227 SCRA 780, 787 [1993].
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presumption of innocence with proof of guilt beyond reasonable doubt."7 In the case of People of the Philippines v Jenny Tumambing y Tamayo8, the Supreme Court ruled that: A successful prosecution of a criminal 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 offenders identity. The constitutional presumption of innocence that an accused enjoys is not demolished by an identification that is full of uncertainties. II. 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 latters 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.9 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]. 8 G.R No. 191261, March 2, 2011 9 People vs. Garcia, G.R. No. 138470 [2003]
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conviction, 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 them in equal shares and the property acquired by both of them 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 formers efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. 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
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shall 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 to 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.10 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.11 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 hahatakin ng SAMAHAN kasama ng linya (TODA) at/o prangkisa at ito ay pangangasiwaan ng SAMAHAN upang ang arawang kita nito ay tuwirang 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 latters position of the said tricycle pertains only to the management and administration for the satisfaction of the obligation of the delinquent debtor.

Paras, Civil Code Book 1 discussion on property regime of unions without marriage 11 Article 493 of the New Civil Code
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Second, 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.12 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 to 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, it is 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 amount 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 terms 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

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Villarama v. Crisostomo, [C.A.] 54 O.G. 6894 and El Hogar Filipino v. Paredes, 45 Phil. 178
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registered 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, it is 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

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