Republic of the Philippines REGIONAL TRIAL COURT National Capital Judicial Region BRANCH 67 Pasig City

PEOPLE OF THE PHILIPPINES, Plaintiff, CRIM CASE NO. 1234 -versusROMULO TAKAD, Accused, x---------------------------------/ FOR: Violation of R.A. 6739 (Anti-Carnapping Act)

MEMORANDUM Accused, through undersigned counsel, to this Honorable Court most respectfully submits this Memorandum in support of his plea for acquittal and states that: PREFATORY STATEMENT The Constitution provides that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved and it is incumbent upon the prosecution that the burden of proof to establish the guilt of the accused beyond reasonable doubt be convincingly established and presented before conviction may take place. There is failure in the part of the prosecution to prove; (1) that the accused has committed the offense as charged; and that (2) the prosecution has failed to present compelling evidence that could warrant a conviction.

STATEMENT OF THE CASE A complaint was filed by Zenny Aguirre dating November 22, 2003 charging the herein accused Romulo Takad for violation of R.A. 6739, otherwise known as the Anti-Carnapping Act of 1972. STATEMENT OF THE FACTS On May 2003, the Bayan Development Corporation (BDC), represented through its Account Officer Zenny Aguirre extended a group loan to six (6) members of the Tricycle Drivers and Operators Association (SCCPPTODA 2) amounting to P480, 000.00 and one among those members who was allowed to loan was Ma. Theresa Lacsamana who received a share of P80, 000.00. The loan was evidenced by a promissory note and Kasunduan between the borrowers and BDC. After the loan was granted, she used the money to buy the tricycle which was later on registered at the Land Transportation Office under her name dated May 29, 2003. The loan under the agreed terms and conditions was to be paid within a period of thirty (30) months. However, Lacsamana failed to comply with her obligation and her last payment was only for the month of July 2003 and upon her default, BDC took possession of the tricycle on October 2, 2003 by virtue of the authority granted to it by the said Kasunduan. Lacsamana then requested for time extension for the payment of the balance of the loan including the interest, but her request was subsequently denied by BDC. The tricycle was then given to Ricardo Marasigan, the treasurer of the group for management. But there was no court order authorizing either the transfer of ownership or taking of possession of the said tricycle in case of default. During this period, BDC allowed Lacsamana to redeem the tricycle by paying the arrears on or before October 17, 2003 but she again failed to fulfill her obligation.

The following day, October 18, 2003, Lacsamana and Takad went to the office of BDC and offered to pay the outstanding balance of the loan for the redemption of the tricycle. However, the offer was refused by BDC. And according to Aguirre, upon the refusal of the offer Takad stated that, Huwag na huwag kong makikita ang tricycle sa Pasig. Takad and Lacsamana in their statement clarified that it simply means that, Takad was hoping that he could avoid seeing the tricycle in Pasig because it will hurt his feelings. On November 20, 2003, the tricycle was given to the new assignee named Carlos Parlade also a resident of Pasig City. But on or about 1 oclock in the early morning of November 21, 2003, Parlade came home and changed his clothes being wet with the rain. When he returned outside to chain the tricycle he saw a person pushing away the tricycle. Parlade then shouted at the person pushing the tricycle which was just about a distance of only five (5) meters away from his home. A big streetlight lighted the place enabling Parlade to recognize the face of the carnapper, the carnapper turned and faced Parlade, kick-started the tricycle and then drove away. In his escape he passed Mario Mankas who has just finished playing computer games in a neighbors house, was facing the road and was bent over while washing his hands. According to him he could not clearly see the face of the carnapper because of his position and very fast speed of the tricycle but he could reasonably identify the build of the carnappers body. Takad was arrested and subsequently identified by both Parlade and Mankas as the carnapper. However, Takad denied such allegation claiming that he could not have committed the crime as he was just sleeping alone in his home during the said carnapping. ISSUES 1. Whether or not based on the foregoing facts laid down in the case, Romulo Takad the herein accused is liable for violation of R.A. 6739 (Anti-Carnapping Act).

2. Whether or not Romulo Tacad is entitled to damages and attorneys fees.

ARGUMENTS I. THE ACCUSED IS NOT LIABLE FOR THE VIOLATION OF R.A. NO. 6539 (ANTI-CARNAPPING ACT of 1972). The Anti-Carnapping law particularly deals with the theft and robbery of motor vehicles. Under Republic Act No. 6539 or the Anti-Carnapping Act of 1972 it defined carnapping as the taking, with the 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 using force against things. Section 2 of R.A. 6539 further laid down the elements of the crime of carnapping which are as follows: 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; 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 things. Zenny Aguirre representing the Bayan Development Corporation alleged that Romulo Takad committed the crime of carnapping. In order to merit a conviction of the herein accused of the case the stated above elements of the crime of carnapping should all be concurrently present and convincingly pinpoint all relevant circumstances towards the accused.

It is important to emphasize the testimony given by Zenny Aguirre during her cross-examination it revealed on how the alleged unlawful taking by the accused took place: Q. And when you heard from Mr. Parlade that the tricycle had been stolen, you thought right away that it was the accused Takad who did it, is that right? Yes, sir. That formed in my mind. You thought that the thief was accused Takad because he warned you against his seeing the tricycle in Pasig, is that right? Yes, sir. xxx Q. xxx xxx xxx xxx

A. Q.

A.

You said that, after you refused redemption of the tricycle, accused Takad said Wag na wag kong makikita ang tricycle na yan sa Pasig. And it was this remark that made you conclude that he was the one who stole the tricycle. Is that right? Yes, sir. xxx xxx xxx xxx xxx

A.

Q.

If he did not say kung makikita ko yan sa Pasig, nanakawin ko yang tricyle na yan, the idea that he meant to steal the tricycle in Pasig is only your idea. Is that right? Yes, sir .

A.

In carnapping actual unlawful taking of the motor vehicle should be established and must be proven before conviction of the accused is made. The testimony of the witness for the prosecution, Zenny Aguirre should not be given much of an importance. Basing on her testimony she only derived with the conclusion pointing out Takad to be the culprit was purely circumstantial. The accusation was only founded simply through a guess or speculation.
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The first element of carnapping, that there should be an actual taking of the vehicle was not established. As earlier discussed the prosecutions witness Aguirre did not actually seen Takad taking the tricycle she only relied purely upon on presumption based on the testimony made to her by Carlos Parlade. In the case of People vs. Tan (G.R. No. 135904), when property stolen is found in the possession of a person who is unable to give a satisfactory explanation of his possession thereof, he may be deemed to have committed the crime of theft of said property. In Litton Mills, Inc. v. Sales, the Supreme Court said that for such presumption to arise, it must be proven that: (a) the property was stolen; (b) it was committed recently; (c) that the stolen property was found in the possession of the accused; and (d) the accused is unable to explain his possession satisfactorily. No evidence was presented by the prosecution that the accused took it and has it in his possession. In the present case the possession of the tricycle was not found in Takad and the witness testimony was not credible implying the idea that Romulo Takad has never been in possession of the said tricycle after it was taken by BDC. Intent to gain as stated in the facts of the case did not show that the second element of carnapping was present. In People v. Bustinera, the Supreme Court elucidated on the concept of intent to gain, thus: Intent to gain or animus lucrandi is an internal act, presumed from the unlawful taking of the motor vehicle. Actual gain is irrelevant as the important consideration is the intent to gain. The term gain is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed. Thus, the mere use of the thing which was taken without the owners consent constitutes gain. The accused Takads intent to gain from the carnapping of the tricycle was not proven as the testimonies by the witnesses were merely conjectural. They failed to
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substantiate the claim that Takad was responsible for the alleged act of carnapping. The presented evidences and witnesses of the prosecution did not sufficiently establish the certainty of the identity of the carnapper and the allegation that Takad was the carnapper was of no bearing. It is of importance to note the testimony of Mario Mankas during his cross-examination on how he identified the carnapper:

Q. You said that the tricycle was running at a very fast speed. If the driver of the tricycle was driving very fast, you will agree with me that you only had a brief glance of the driver. Is that right? A. Q. Yes,sir. And apart from the fact that the tricycle was running at very fast speed, you could not have seen much of the person driving it because, as you said in paragraph 5 of the affidavit, hindi ko gaanong namukhaan dahil nakayuko ako. Is that right? Yes, Sir. xxx Q. xxx xxx xxx xxx

A.

You were brought to the police station because you were going to look at the accused so you can identify him. Is this right? Yes, sir. Did the police place the accused Takad on a line of several men who were more or less of the same built as he was? No, sir. He was just sitting. And when you entered the room, someone pointed the accused Takad to you. Is that right?

A. Q.

A. Q.

A. Q. A.

Yes, sir. So before you give your statement to the police, you already had a good look at Takad? Yes, sir.

The jurisprudence on this matter is relevant in testing the credibility of the testimony of the person being interrogated on the basis of its conformity with logic, reason, experience and the laws of nature is a must to identify a credible witness from a tutored witness. In the case of People vs. Fulgencio Baquiran, the Supreme Court said:

It is a legal truism that evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself. Human perception can be warped by the impact of events and testimony colored by the unconscious working of the mind. No better test has yet been found to measure the value of a witness testimony than the conformity to the knowledge and common experience of mankind.

The statement given by Mankas was not reliable to be given merit in the course of this action. In his testimony he admitted that he had merely a glance of the carnapper while the tricycle was running in a very fast speed. And being bent he is in a position not well suited to enable him to take a good recognition of the person. When Mankas was brought to the police station the herein accused was not in a police line-up and was just pointed out by someone to be the carnapper. Consolidating the facts of Mankas testimony is of no credence he has no good picture of who was the carnapper until Takad was presented to him to be the suspect of the alleged carnapping. Therefore, the identity of the herein accused Romulo Takad to be clear to the confused mind of the witness was only triggered only after it

was implanted to him by directly pointing the accused to him before he give his testimony.

The third and fourth element of the crime of carnapping are, that the vehicle belongs to a person other than the offender himself and 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 things. In the crime of carnapping it is important to first clearly establish ownership over the motor vehicle and based on the facts it was not the private plaintiff nor Bayan Development Corporation of whom she represents owned the tricycle. Private plaintiff, Zenny Aguirre representing BDC admitted that it was actually Ma. Teresa Lacsamana who owns the tricycle which was evidenced by the Certificate of Registration in LTO under her name. And Ma. Teresa Lacsamana is the live-in partner of the herein accused of the case Romulo Takad. Article 148 of the New Civil Code states that: In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contributions of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of the proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Since Lacsamana and Takad were live-in partners when the tricycle was purchased under the law they are deemed to be co-owners of the said motor vehicle. It might be true that it was Lacsamanas sole money that was used to purchase the tricycle but the money used was obtained through a loan and was to be payable from the industry put up by Takad on driving the tricycle. Under the circumstances there was a clear existence of co-ownership between the live-in partners Lacsamana and Takad. When Lacsamana failed to comply with her obligation towards her loan BDC immediately took possession of the tricycle without any action filed in the court to transfer ownership from Lacsamana to BDC. Therefore, there was no successful transfer of ownership that occurred, Lacsamana and Takad remained to be the lawful owners of the tricycle. Article 428 of the New Civil Code states that, The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. Takad as one of the co-owner of the tricycle may make use of the property and his right of ownership can be exercise over the property wherever it is located. Now let us put into consideration the remote possibility that it was actually Takad who took away the tricycle dated November 21, 2003 there was nothing wrong on the action made by Takad. As owner of the tricycle the law guarantees his full exercise of his ownership, enjoyment and to make use of his property. Therefore, the third and fourth elements of carnapping are not present under the circumstances. That the vehicle belongs to a person other than the offender himself and 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 things because Romulo Takad is the owner of the alleged carnapped tricyle.

II. ROMULO TAKAD IS ENTILED TO DAMAGES AND ATTORNEYS FEES.

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For having instituted this baseless and malicious suit, Zeny Aguirre representing Bayan Development Corporation should be held liable to Romulo Takad for moral damages and the corresponding attorneys fees. WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable Court to render judgment: 1. Dismissing the case for lack of merit and judgment be rendered for the acquittal of the accused. 2. Ordering private plaintiff Zenny Aguirre representing Bayan Development Corporation to pay the accused moral damages of P1 million and attorneys fees of P250,000.00. Respectfully Pasig City. submitted September 20, 2013.

JEFFERSON E. NIOG Counsel for the accused 3rd flr. LA Sparks Bldg. O24 Washington Avenue Makati City Atty. Roll No. 171088 IBP 12342 10-09-07 MCLE Compliance III-675 Email: jeffniog@yahoo.com

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