Republic of the Philippines

Department of Justice
National Prosecution Service
CITY PROSECUTORS OFFICE
Province of Negros Oriental
Dumaguete City

AAAA, NPS Docket No. xxxxxxxx

Private Complainant,
FOR: RECKLESS IMPRUDENCE
RESULTING TO SERIOUS PHYSICAL
-versus- INJURIES

BBBB,
Respondent.

COMMENTS and OPPOSITION

TO THE MOTION FOR RECONSIDERATION

The respondent, through the undersigned counsel most respectfully

opposes the private complainants Motion for Reconsideration, and in
support thereof avers that:

In her Motion for Reconsideration, the private complainant questions

the qualification of respondent BBBB a client of the YYYYYY (YYY). She
invokes the offices Operations Manual and argues that pursuant to the
regulations of the office, the respondent is not an indigent and is thus not
qualified to engage the services of the YYY. The respondent through counsel
submits otherwise.

The YYY Operations Manual states:

Section 1. Persons Qualified for Legal Assistance. Pursuant to Book

IV, Title III, Section 14 of the Administrative Code of 1987 in relation
to Presidential Decree No.1 and Republic Act 6035, the Public
Attorneys Office is mandated to represent, free of charge, indigent
persons or the immediate members of their family, in all civil,
administrative and criminal cases where, after due investigation, it is
determined that the interest of justice will be served thereby. In line
with the foregoing, YYY lawyers should extend legal assistance to an
applicant who is indigent and whose case is meritorious.

xxx

Sec. 3. Indigency Test. Taking into consideration recent surveys on

the amount needed by an average Filipino family to (a) buy its food

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 consumption basket and (b) pay for its household and personal
expenses, the following shall be considered indigent persons:

1. Those residing in Metro manila whose family income does not

exceed P14,000.00 a month;

2. Those residing in other cities whose family income does not

exceed P13,000.00 a month; and

3. Those residing in all other places whose family income does not
exceed P12,000.00 a month (As amended by MC No. 2, Series of 1998
dated August 25, 1998) The term family income as herein
employed shall be understood to refer to the gross income of the
litigant and that of his or her spouse, but shall not include the
income of the other members of the family.

Pursuant to the above quoted provisions, herein respondent

BBBBclearly qualifies as an indigent client of the YYY. As pointed out by
the private complainant in her Motion for Reconsideration, the respondent is
just a college student of ZZZZZZ University and is therefore not gainfully
employed. Just because the respondent is studying in said institution does
not mean he is not an indigent considering that it is his parents who are
paying for his college education and not the respondent himself. Further,
considering that the indigency test is based on the monthly income of the
client himself and not his parents, or his blood relatives, or the kind of
vehicle he drives, BBBBis an indigent for purposes of complying with the
requirements of the YYY. Also, attached to this pleading is a copy of the
Barangay Certificate, issued by Barangay Captain TTTTT, attesting to the
fact that the respondent is indeed an indigent.

At the outset, it should be noted that in his Motion for

Reconsideration, the private complainant only challenges the affidavit of
CCCC as if this was the only evidence submitted by the respondent. The
private complainant seems to overlook the fact that the resolution of the
investigating prosecutor was based on the totality of all the evidences
submitted by both parties.

For instance, the pictures submitted by the respondent as Annexes to

his counter affidavit depicted the area of impact on the vehicle he was
driving. The location of the dent which was on the side front portion of the
vehicle just on top of the right front wheel clearly proves that it was the
private complainant who bumped the vehicle and not the other way around.
another crucial evidence was the affidavit of eye witness LLLLLLL which
stated that said witness personally saw the whole incident transpire from the
moments leading up to the accident, the accident itself, and the occurrence
that transpired thereafter. According to the eye witness, she personally saw
the private complainant speeding on her motorcycle towards an intersection
and also saw the impact with the vehicle driven by the respondent. In fact,
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Ms. Salvoro was even one of those who first helped the private complainant
while the latter was still lying on the ground. Interestingly enough, the
private complainant did not question the credibility and probative value of
these evidences but only zeroed in on a lone evidence the affidavit of
CCCC.

Moreover, the private complainants argument that CCCC statement

is not worthy of credence simply because he was not an eye witness to the
incident is untenable and misplaced. While it is true that CCCC did not
actually see the incident transpire, his statement is not being offered as an
eye witness but as an investigator after the fact. It is of common knowledge
that as part of an investigation of a vehicular accident, the investigator
normally gathers information from other persons who witnessed the incident
and use this information to come up with a conclusion as to who was at
fault. Also, it is clear in his affidavit that CCCC did not solely rely on eye
witness accounts. During his investigation, he took pictures of the vehicles
involved in the accident, made a sketch of the relative positions of the
parties during the incident, and even talked to the private complainant
herself at the hospital. It was only after conducting a thorough investigation
that CCCC made a conclusion that it was private complainant who was
negligent. Additionally, as already pointed out by the respondent in his
counter-affidavit, CCCC is accorded with the presumption of regularity of
duty as a police officer and the private complainant has not offered any
evidence whatsoever to overthrow said presumption.

The private complainant also challenges the impartiality of CCCC

because he referred to her condition as having suffered some bodily
injuries. It bears stressing that CCCC is a police officer and not a medical
practitioner or a nurse fluent in medical jargon. He cannot therefore be
expected to accurately describe the injuries of the private complainant with
their exact medical terminologies. Additionally, material damage is only one
of the elements of the crime of Reckless Imprudence Resulting to Physical
Injuries as defined by law. Despite the presence of said element, the absence
of the other elements still would not warrant the finding of probable cause
for the said offense. Besides, just because the private complainant had
suffered bodily injuries does not automatically mean that she was not
negligent during the incident.

Furthermore, the private complainant cannot fault the investigating

prosecutor when he opted not to conduct clarificatory hearings. Par (e),
Section 3 of Rule 112 clearly provides:

The investigating officer may set a hearing if there are facts and
issues to be clarified from a party or a witness. The parties can be present at
the hearing but without the right to examine or cross-examine. They may,
however, submit to the investigating officer questions which may be asked to
the party or witness concerned. The hearing shall be held within ten (10)
days from submission of the counter-affidavits and other documents or from
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the expiration of the period for their submission. It shall be terminated
within five (5) days.

The use of the operative word may means that the holding of a
clarificatory hearing is left to the sound discretion of the investigating
prosecutor if there are matters he needs to be clarified after the submission
of affidavits and counter-affidavits. In Sierra v. Joseph Y. Lopez, City
Prosecutor of Manila, et.al.,1 the Supreme Court held that this provision of
the Rules does not require a confrontation between the parties.
Preliminary investigation is ordinarily conducted through submission of
affidavits and supporting documents, through the exchange of pleadings.

Lastly, private complainants argument that the doctrine of

contributory negligent would play a role in determining the respondents
criminal liability is mistaken. In the first place, the private complainant
failed to present any evidence to prove that the respondent was the negligent
party during the incident aside from her bare, and unsubstantiated conclusion
of facts. Further, it is elementary that while said doctrine applies in cases
involving torts and damages, the doctrine of contributory negligence does
not apply in criminal cases. In Geonbiagon v. Court of Appeals2, the
Supreme Court in citing other cases reiterated that: The alleged
contributory negligence of the victim, if any, does not exonerate the accused.
"The defense of contributory negligence does not apply in criminal cases
committed through reckless imprudence, since one cannot allege the
negligence of another to evade the effects of his own negligence (People vs.
Orbeta, CA-G.R. No. 321, March 29,1947)." (People vs. Quinones, 44 O.G.
1520)

WHEREFORE, premises considered, the respondent most respectfully

prays that the Motion for Reconsideration filed by the private complainant
through counsel be DENIED.

Reliefs and remedies just under the premises are likewise prayed for.

City of Dumaguete, March 27, 2017.

XXXXXXXXX
Dumaguete City South District
Hall of Justice, E.J. Blanco Drive
Piapi, Dumaguete City

By:

1
Adm. Case No. 7549, August 29, 2008
2
G.R. No. L-40452, October 12, 1989
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 XXXXXXXXXXXX
Public Attorney II, Roll No. 111111
IBP No. xxxxxx Dumaguete City
MCLE Governing Board Rule No. V - 0016338

Copy Furnished:

ATTY.UUUUUUUUUUUUUU
Dumaguete City