Republic of the Philippines REGIONAL TRIAL COURT National Capital Judicial Region BRANCH 67 Pasig CityPEOPLE OF THE PHILIPPINES, Plaintiff, CRIMINAL CASE NO. 1234 -versusROMULO TAKAD, Defendant, x---------------------------------/ FOR: Violation of R.A. 6739 (Anti-Carnapping Act) MEMORANDUM COME NOW DEFENDANT, through the undersigned counsel, unto this Honorable Court most respectfully submit this Memorandum in the above-entitled case and aver that: PREFATORY STATEMENT The prosecution failed to establish ownership of the vehicle subject of this case and to present clear and convincing evidence to prove beyond a reasonable doubt that the defendant herein named committed the offense as charged. STATEMENT OF THE CASE A complaint was filed by Zenny Aguirre on November 22, 2003 as the duly authorized representative of Bayan Development Corporation, BDC for brevity, against Romulo Takad for willful violation of R.A. 6739, otherwise known as the Anti-Carnapping Act of 1972. 1 On October 22.STATEMENT OF THE FACTS On May 2003.000. but her request was denied by BDC. Ma. chattel mortgage and Kasunduan to that effect. 2 . There was no court order authorizing either the transfer of ownership or repossession of the tricycle. Her last payment was for the month of July 2003. After the loan was granted. hoping that he could avoid seeing the tricycle and hurting his feelings. for management. However. she again failed to do so. Takad replied by saying. the tricycle was given to the new assignee Carlos Parlade (Parlade). The Land Transportation Office (LTO) Official Receipt and Car Registration were in the name of Lacsamana. BDC repossessed the tricycle on October 2. the treasurer of the group. BDC refused their offer. he simply pleaded with Aguirre. Lacsamana requested for more time to pay the balance of the loan. evidenced by a promissory note. the Bayan Development Corporation (BDC). extended a group loan to SCCPPTODA 2 amounting to 480. who also resided within Pasig City. BDC released the tricycle to Lacsamana. 2003 by virtue of the authority granted to it by the aforementioned Kasunduan. During this period.000.00 pesos. Teresa Lacsamana (Lacsamana) was one of the “borrowers” in this transaction and received a share of 80. However. represented by its Account Officer Zenny Aguirre (Aguirre). According to Aguirre. according to Takad and Lacsamana. 2003. On November 20.00 pesos. The loan was to be paid within a period of thirty months. They offered to pay the outstanding balance and redeem the tricycle. Lacsamana failed to comply with her obligation. BDC allowed Lacsamana to redeem the tricycle by paying the arrears on or before October 17. “Wag na wag kung makikita „yan sa Pasig!” However. 2003. However. Upon her default. who was accompanied by her live-in partner Romulo Takad (Takad). Lacsamana and Takad went to the office of BDC. The vehicle was then given to Ricardo Marasigan. 2003. ISSUE Based on the facts of the case. he saw it being pushed away at a distance of about 5 meters from his home. Parlade came home and changed his clothes. During his flight. with intent to gain. or by using force upon things. R. or by means of violence against or intimidation of persons. but he could reasonably identify the build of his body. 2003. kick-started the tricycle. of the aforementioned carnapping. he could not clearly see the face of the carnapper. he passed Mario Mankas (Mankas). The shocked Parlade shouted at the person pushing the tricycle. and drove away at about twice the usual speed of other tricycles. Aguirre. Parlade and Mankas gave their statements to the police.On or about 1 o’clock in the morning of November 21. During the day. When he returned outside to chain the tricycle. of a motor vehicle belonging to another without the latter’s consent. However. 6739 Carnapping is defined by the law as the taking.A.A.A. On 7 o’clock in the morning of the same day. a neighbor and acquaintance of Parlade. 6739? ARGUMENTS THE ACCUSED IS NOT LIABLE FOR VIOLATION OF R. the carnapper turned and faced Parlade. 6739 3 . is the accused Romulo Takad liable for violation of R. Because of his position.1 1 Section 2. Parlade informed BDC. seeing as his live-in partner Lacsamana was currently in Singapore. who was bent over while washing his hands. Under the illumination of a big streetlight. the accused claims that he could not have committed the crime as he was peacefully sleeping alone in his home on the night of the incident. Takad was arrested and subsequently identified by both Parlade and Mankas as the carnapper. through Aguirre. In order to support conviction. or that the taking was committed by means of violence against or intimidation of persons. A person who receives a loan of money or other fungible thing acquires the ownership thereof. 4. the prosecution must be able to prove that all the elements of the crime charged are present in the case.More specifically. Bayan Development Corporation (BDC) is not the owner of the tricycle accused to have been carnapped by defendant. or animus lucrandi. A careful examination of the evidence presented shows that the prosecution failed to prove that all the elements of the crime of carnapping are present in this case. is an internal act and hence presumed from the unlawful taking of the vehicle. That the taking was without the consent of the owner thereof. as an element of the crime of carnapping. or by using force upon things. and is bound to pay to the creditor an equal amount 4 . That there is an actual taking of the vehicle. or by using force upon things. I. it is deemed complete from the moment the offender gains possession of the thing. That the offender intends to gain from the taking of the vehicle. That the vehicle belongs to a person other than the offender himself. 2. 3. it is likewise important to discuss the ownership of the vehicle in connection with the third element stated above that the vehicle should belong to a person other than the offender himself. The contract entered into between BDC and Lacsamana is that of simple loan or mutuum. the elements of the crime are as follows: 1. even if he has no opportunity to dispose of the same. As such. Unlawful taking is the taking of the vehicle without the consent of the owner. Intent to gain. or by means of violence against or intimidation of persons. In fact. for if it was BDC who owns the said vehicle. The mortgagee may. Although it was only Ma. 1508 5 . Lacsamana became the owner of said amount and has acquired the right to appropriate the same. 14. cause the foreclosure of the mortgage and the mortgaged property be sold at public auction by a public officer. 2 II. Takad’s common-law wife. 2 Sec.” It is clear then that the repossession should be in accordance with the Chattel Mortgage. the tricycle shall be voluntarily delivered to the Treasurer of the group for management to ensure that all income derived from it shall be given to BDC as payment for the loan.00. repossession of the tricycle without the appropriate proceeding is illegal. Lacasama need only to pay BDC the same amount granted to her. Section 20.1 of the said document provided that “Hatakin ang tricycle o mga tricycle kasama ng linya (TODA) at/o prangkisa ng tiwaling kasapi na kabilang sa Chattel Mortgage Contract sa BDC. The presence of the Kasunduan is of no moment because it only provides that in case of default. the tricycle she acquired from the money is her property and not of BDC.of the same kind and quality based on Article 1953 of the New Civil Code. When BDC granted the loan to Lacsamana in the amount of P80. Lacsamana and Takad own the tricycle in coownership. Act No. Thus. after thirty (30) days from the time of the condition broken. including the stipulated interest if there is any. the execution of the chattel mortgage would be futile. the tricycle could be immediately assigned to somebody else. Teresa Lacsamana. BDC should have instituted a foreclosure proceeding of the chattel mortgage. It did not provide that upon default on certain installments. who contracted the loan with BDC and the Land Transportation Office (LTO) Official Receipt and Car Registration were also in her name.000. Logically. Takad is considered as co-owner of the tricycle based on Article 147 of the Family Code. Ownership can also be deduced by the execution of Lacsamana of a chattel mortgage in favor of BDC. Upon default. 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 and maintenance of the family and the household. In the case at bar. absent any evidence to the contrary. he could not be validly convicted with the crime of carnapping as herein charged because he has in fact a right equal as that of Lacsamana. For purposes of this Article. that the properties owned by them during their cohabitation are acquired through their joint efforts. and shall be owned by them in equal shares. live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage.147. There is a presumption. properties acquired while they lived together shall be presumed to have been obtained by their joint efforts. Relative to this fact is her testimony during her cross-examination: 6 . as co-owner. and assuming arguendo that it was really Takad who took the tricycle. notwithstanding the statements above and assuming arguendo. “Wag na wag kung makikita „yan sa Pasig!” However.“Art. Zenny Aguirre only presumed that it was Takad who carnapped the vehicle due to the latter’s statement to the effect that. it should be noted both from the statements of the witnesses as shown on the court’s stenographic notes that they are not definite as to the identity of Takad as the carnapper. III. In the absence of proof to the contrary. work or industry. When a man and a woman who are capacitated to marry each other.” Thus. their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work and industry shall be governed by the rules on coownership. the said statement cannot be taken as proof of the intent of Takad to do an unlawful act once he will see the vehicle in Pasig. IS THAT RIGHT? A. SIR. Q. A. DID MR. IS THAT RIGHT? YES. YES. HE DID NOT RECOGNIZE THE MAN BECAUSE HE WAS DRIVING AWAY. BUT MR. A. Q.“Q. PARLADE THAT THE TRICYCLE HAD BEEN STOELN. Q. SIR. MR. THAT FORMED IN MY MIND. AND YOU TOLD PARLADE ABOUT WHO YOU THOUGHT TOOK THE TRICYCLE. YOU THOUGHT THAT THE THIEF WAS THE ACCUSED TAKAD BECAUSE HE WARNED YOU AGAINST HIS SEEING THE TRICYCLE IN PASIG. Q. A. SIR. SIR. SIR. PARLADE TOLD YOU THAT HE DID NOT KNOW THE ACCUSED TAKAD PERSONALLY? YES. IS THAT RIGHT? THEY DID NOT KNOW HIM BUT THEN HE RECOGNIZED HIM BECAUSE THEY FACED EACH OTHER. AND WHEN YOU HEARD FROM MR. A. IS THAT RIGHT? A. Q. YOU THOUGHT RIGHT AWAY THAT IT WAS THE ACCUSED TAKAD WHO DID IT. HE ALSO TOLD YOU THAT. PARLADE TOLD YOU THAT HE SAW A MAN DRIVING AWAY WITH THE TRICYCLE. IS THAT RIGHT? YES. Q. 7 . PARLADE TELL YOU THAT HE WAS ABLE TO SEE THE MAN‟S APPEARANCE AS WELL AS HIS FACE? YES. UNFORTUNATELY. IS THAT RIGHT? A. “WAG NA WAG KONG MAKIKITA ANG TRICYCLE NA „YAN SA PASIG”. . ACCUSED TAKAD SAID. IS THAT RIGHT? YES. SIR. Q.” THAT IS ALL HE SAID? YES. Q. YOU SAID THAT. NANAKAWIN KO „YANG TRICYCLE NA „YAN”. SIR. Q. “KUNG MAKIKITA KO „YAN SA PASIG. PARLADE AGREED WITH YOU? YES. YES. YES. THE IDEA THAT HE MEANT TO STEAL THE TRICYCLE IS ONLY YOUR IDEA. Aguirre also testified to this effect: “Q. SIR. IN ADDITION. MR. NANAKAWIN KO „YANG TRICYCLE NA „YAN.A. Q. SIR.” A. A. AND. Q. IF HE DID NOT SAY “KUNG MAKIKITA KO „YAN SA PASIG. IDEDEMANDA KO KAYO NG CARNAPPING DAHIL WALA KAYONG 8 A. A. DID HE SAY. Additionally. AND IT WAS THIS REMARK THAT MADE YOU CONCLUDE THAT HE WAS THE ONE WHO STOLE THE TRICYCLE. SIR. “WAG NA WAG KONG MAKIKITA ANG TRICYCLE NA „YAN SA PASIG. BASED ON YOUR DESCRIPTION OF ACCUSED TAKAD. HE COULD HAVE VERY WELL MEANT THAT “KUNG MAKIKITA KO „YAN SA PASIG. ARE YOU SURE THAT HE SAID WAS. SIR. AFTER YOU REFUSED REDEMPTION OF THE TRICYCLE.” DID HE SAY THAT? NO. SIR. every circumstance favoring the innocence of the accused must be duly taken into account. Q. 230 SCRA 70 [1994]. 319 Phil. SIR. Carlos Parlade also testified as shown on the transcript of stenographic notes taken at the hearing on January 27. 343 Phil. A. WERE YOU AWARE THEN THAT IT WAS IMPORTANT FOR YOU. DID YOU SEE IT CLEARLY? YES. speculations and probabilities cannot substitute for proof required to establish the guilt of the accused beyond reasonable doubt. stating among others that: “Q. Q.KARAPATANG KUNIN ANG TRICYCLE SA KANYA. IS THAT RIGHT? A. 687 [1995]. YOU SAID IN YOUR SWORN STATEMENT THAT YOU ARE A MEMBER OF THE MAYBUNGA SECURITY FORCE. THAT IS WHAT HE COULD HAVE MEANT. 3 4 People v. 570 [1997]. SIR. Isla. 9 . SIR. People v. Q. citing People v. TO GIVE A GOOD DESCRIPTION OF THE PERSON WHOM YOU SAW STOLE YOUR TRICYCLE? YES. MAYBE. IS THAT RIGHT? YES. A. YES. Sinatao. 4 Subsequently. 2004. YOU SAID THAT YOU SAW HIS FACE. Jumao-as. AS A WITNESS TO A CRIME. IS THAT RIGHT? A. SIR. A. YOUR WORK INVOLVED LOOKING FOR PERSONS WHO COMMIT CRIMES IN YOUR BARANGAY.” Hence. 665. 562.3 In a criminal case. A. Q. Q. SINCE YOU KNEW BECAUSE OF YOUR EXPERIENCE THAT THOSE DETAILS WERE IMPORTANT TO THE POLICE. A.” A. BUT. YOU STILL DID NOT TELL THE POLICE WHEN YOU REPORTED THE CRIME THAT HE HAD FAIR OR LIGHT COMPLEXION. IS THAT RIGHT? YES. YOU ALSO NOTICED THAT HE HAD PRONOUNCED JAWS? YES. IS THAT RIGHT? BECAUSE THE POLICE DID NOT ASK ME THOSE DETAILS. Q. SIR. SIR. A. YOU ALSO NATURALLY NOTED THAT HE HAD SHORT CROP HAIR. PLEASE GO OVER YOUR SWORN STATEMENT AND TELL US IF YOU GAVE TO THE POLICE THOSE DESCRIPTIONS OF THE ACCUSED THAT YOU MENTIONED? I SAID HERE.Q. Q. 10 . WHEN YOU WERE NOT ASKED. SIR. DID YOU NOTE THAT HE HAD FAIR OR LIGHT COMPLEXION? YES. BUT. IN ANSWER TO #14. YOU DID NOT BOTHER TO STILL GIVE THE POLICE YOUR DESCRIPTION OF THE FACE OF THIS PERSON? I WAS NOT ABLE TO REMEMBER THOSE. “MEDYO MAIGSI AND BUHOK. A. ALTHOUGH YOU NOTED THESE DETAILS OF HIS FACE. Q. A. SIR.” NOW. Q. YES. IS THAT RIGHT? YES.” YOU SAID WHEN YOU TESTIFIED THAT HE WAS “MEDYO MALAPIT” BUT YOU SAID IN YOUR AFFIDAVIT. YOU SAW THE ACCUSED PUSHING THE TRICYCLE AWAY. HE WAS SOMEWHAT NEAR YOU? YES. SIR. Q. YOU SAID THAT WHEN YOU SAW THE ACCUSED WITH THE TRICYCLE. IS THAT RIGHT? A. NOW. Q. A. BUT THE OTHER DESCRIPTION THAT HE IS OF LIGHT COMPLEXION AND HAS PRONOUNCED JAWS.Q. “MEDYO MALAPIT SIYA. “MEDYO MALAYO. A. “NANG MAKITA KO MEDYO MALAYO NA ANG TRICYCLE NA ITINUTULAK NG ISANG TAO.” A. Q. IN OTHER WORDS. AS YOU WENT OUT OF YOUR HOUSE.” WHICH IS CORRECT? I SAID HE WAS A BIT FAR BECAUSE HE WAS FIVE METERS FROM ME. SIR. A. A. DID YOU PUT THAT IN YOUR STATEMENT? NO. Consequently. HE WAS FIVE METERS FROM YOU. SIR. 11 .” PLEASE READ WHAT YOU SAID IN YOU SWORN STATEMENT ABOUT THE DISTANCE OF THE ACCUSED FROM YOU AT THE TIME. YOU SAID “MEDYO MALAPIT SIYA. Parlade also testified that: “Q: YOU SAID THAT. IS THAT RIGHT? YES. A. Inconsistencies on the affidavit and the testimonies given in the court as shown above are apparent. HINDI PO. these circumstances would lead us to the conclusion that Parlade wasn’t sure himself if it was indeed the accused Takad he saw pushing the tricycle away. SINCE THE PURPOSE OF THE MAN WAS TO FLEE FROM YOU. IS THAT RIGHT? HINDI PO.” A. He said that after he finish playing computer in a neighbor’s house and while washing his hands at the gate in the front yard. Additionally. he had only a brief glance of the driver. MEDYO MATAGAL PO. SIR. A. there is no notable distinction in the body shape of the accused. such that of a hunchback. There was also failure to have a police lineup during the time Parlade and Mankas identified Takad as the one who carnapped the vehicle. IV. However. in order to merit his identification apart from the others who has the same body built just like his. 12 . he saw Parlade running after a tricycle. Q. Q. More so. Mankas also said that the he was able to identify the accused because of the shape of his body. HE MERELY GLANCED BACK. Said witness also stated in paragraph 5 of his affidavit that “hindi ko gaanong namukhaan dahil nakayuko ako. OPO. OPO. MEDYO MATAGAL PO. the other witness presented by the prosecution was Mario Mankas. He also added that because the tricycle was running at a very fast speed. YOU SAID THAT YOU SHOUTED AT THE MAN ON THE TRICYCLE AND HE LOOKED BACK BUT HE SUDDENLY STARTED THE MOTOR AND DROVE AWAY WITH THE TRICYCLE.” In fact. On the other hand.Q. the man driving the tricycle away did not move but just sat still holding the steering bars of the tricycle according to him. WHAT IS REALLY YOUR ANSWER? OPO. according to the fundamental law. It is apropos to repeat the doctrine that an accusation is not. Manzano. the scanty evidence for the prosecution casts serious doubts as to the guilt of the accused. The tricycle accused to have been carnapped by the defensant was never recovered in his possession. must rely on the strength of its own evidence and must not simply depend on the weakness of the defense. However. Neither any evidence was presented to prove that the tricycle came to his possession after it was repossessed by BDC. was never recovered in the hands of Takad.Although police lineup is not a mandatory requirement in the court rules. let alone when no less than the capital punishment is imposed. there is a possibility of the witnesses not to point Takad as the culprit. the prosecution must overthrow the 5 People v. “The rule is clear. said lineup is crucial in the identification of the carnapper in this case because of the inconsistencies in the identification of the accused. 787 [1993]. which is a tricycle. The guilt of the accused must be proved beyond reasonable doubt. The slightest possibility of an innocent man being convicted for an offense he has never committed. this honorable court should not be convinced that the guilt of the accused has been proved beyond reasonable doubt. Its location is still in question. 227 SCRA 780. synonymous with guilt. The prosecution.” 5 “On the whole then. would be far more dreadful than letting a guilty person go unpunished for a crime he may have perpetrated. The vehicle subject of this case. In light of the prosecution’s evidence. If only a fair police lineup was conducted. 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. no such thing was conducted in this case. on its part. V. It could also disprove the assumption of influence brought in the mind of Parlade and Makas due to the presumption of Aguirre that Takad committed the crime. 13 . v. People v. The defendant on the other hand contends that he was at home sleeping during the time the crime was committed and was only awakened by the police who arrested him. 215 SCRA 349 [1992]. Conviction must rest on nothing less than a moral certainty of the guilt of the accused. to the exclusion of all others. L-47147 (July 3. 7 Hence. citing People v. the Rules of Court require that: (1) there is more than one circumstance. (2) the facts from which the inferences are derived are proven. Garcia. 128 SCRA 415. Duran v.presumption of innocence with proof of guilt beyond reasonable doubt. It has been held that if there is doubt as to whether the defendant is or is not the person who committed an act. the prosecution cannot rely on the weakness of the defense to secure a conviction. 561 (1905) 8 People v. Based on jurisprudence. McMann. 107 [1971]. L-45366-68 (March 27. Ola. Dismuke. Dramayo. Formentera. People v. 14 . The burden of proof in cases is on the prosecution. the existence or non-existence of a motive for the doing of the act is a circumstantial evidence leading to the inference that he is or is not the author of the act done. where the evidence is purely circumstantial. there must be an even greater need to apply the rule that the prosecution depends not on the weakness of the defense but on the strength of its own evidence. 4 Phil. 9 Rule 131. 2 10 People v. 130 SCRA 114. as the guilty person. 333 SCRA 319. 1984). L-39758 (May 7. 149 Phil. 336 [2000]. 71 SCRA 68. CA. Sec. 10 6 People v.” 8 Granting that the defense of alibi was indeed weak. 1976). 234 SCRA 51. 7 U.S. L-30892 (June 29. it expound that the circumstantial evidence presented and proved must constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused. and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Somontao. 61 [1994]. Santos. 9 Failing in its task to prove the guilt of the accused beyond reasonable doubt. People v.” 6 VI. “For circumstantial evidence to convict. 1987). the fact alone does not justify the judgment of conviction. 1984). Branch 67 Pasig City Kindly submit this memorandum for the consideration of the Honorable Court immediately upon receipt hereof. By: ATTY. 123456. Jason Oliver Sun Counsel for the Plaintiff SUN LABASTIDA GORDONAS AND ASSOCIATES Manila. JAMAICA MAGLINTE-DACUTANAN Counsel for the Defendant IBP Lifetime No. in consideration of the foregoing. 15 . Pasig City. 12345.A. Truce Salvador City Prosecutor Palace of Justice Pasig City The Branch Clerk of Court RTC. this 8th day of June 2004. 8/1/2013 Roll of Attorney No. 6739. Respectfully submitted. 2003-654321 MCLE Compliance No. III – 987654 Copy furnished: Atty. Philippines Hon.PRAYER WHEREFORE. it is respectfully prayed that judgment be rendered in favor of defendant and against the plaintiff by: FINDING Romulo Takad not liable for the commission of the crime of carnapping as defined in R. Philippines.5/10/2005 PTR No.