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Republic of the Philippines

REGIONAL TRIAL COURT


National Capital Judicial Region
Branch 123
Pasig City

PEOPLE OF THE PHILIPPINES


Plaintiff,

- versus CRIM.CASE NO.12345 H

ROMULO C. TAKAD,
Accused,

x --------------------------------------------- x

DEFENDANTS MEMORANDUM

Defendant, by counsel, respectfully submits its memorandum in the case:

The Case

Plaintiff, through the Public Prosecutor, filed charges against herein accused for
violation of the Anti Carnapping Act by claiming that the latter, with intent to gain and
without the consent of the plaintiff, stole and drove away a Kawasaki motorcycle with
side car, colored black, bearing plate No. TU 9952, with a value of P 80,000,
belonging to the plaintiff.

The Facts

At the trial, the plaintiff presented her own version of facts. She narrated that she
is an account officer of the Bayan Development Corporation (BDC) and as such, the
corporation extends loans to various Tricycle Operators and Drivers Association (TODA)
including the one where the accused was a member of. She stated that sometime in
May 2003, she extended a loan to Ma. Teresa Lacsamana in the amount of P80,000 as
part of a group loan extended to the TODA and was evidenced by a Kasunduan, a
promissory note and a chattel mortgage. The agreement, according to the above -
mentioned documents, was that the loan would be paid over a period of thirty months.
However, Ms. Lacsamana defaulted in her payment of the loan despite the extension
given to her resulting to the forfeiture and repossession of the tricycle in favor of BDC.
According to the plaintiff, the accused Takad was with Ms. Lacsamana at that time and
when the plaintiff refused the said payment, she heard the accused saying Huwag na
huwag kong makikita ang tricycle sa Pasig. A few days after the incident, the tricycle
was reported stolen by Carlos Parlade along with several witnesses identifying Takad as
the main culprit.

The accused, for his part, told a different side of the story. While admitting to the
fact that Ms. Lacsmana indeed defaulted in her payment of the loan, the accused belied
the contention that the BDC pulled out the tricycle from Ms. Lacsamana. He contended
that he, together with Ms.Lacsamana, were the ones who brought the said tricycle to the
house of Mr. Marasigan, the treasurer of the TODA, for safekeeping as per agreement
contained in the Kasunduan executed between their group and BDC. Subsequently,
BDC took the tricycle from the treasurer of the group in October 18, 2002 and not on
November 18, 2002 as stated by the plaintiff. The accused also belied the contention of
the plaintiff alleging that he threatened the plaintiff by saying Huwag na huwag kong
makikita ang tricycle sa Pasig. The accused contented that he has no such intention of
threatening the plaintiff. What he meant by those words is the fact that he does not want
Ms. Lacsamana to have hurt feelings regarding the repossession of the tricycle. He was
therefore misconstrued when he said those words.

The Issues

The Court defined the issues in this case in this case in its pre trial order as
follows:
1. Whether or not the identity of the person of the accused was clearly established
2. Whether or not the elements of carnapping punished under the Anti
Carnapping Act was proven beyond reasonable doubt
3. Whether or not the terms and conditions of the Kasunduan executed between the
parties was strictly followed
4. Whether or not it was clearly established that it was BDC who actually owns the
tricycle subject of the crime

Arguments
I.
THE IDENTITY OF TAKAD AS THE ACCUSED WAS NOT CLEARLY ESTABLISHED

The Prosecution claims that it was the accused Takad who took the tricycle from
the residence of Carlos Parlade. It presented several witnesses who claimed they saw
the accused herein as the person who actually took the tricycle without the consent and
against the will of Carlos Parlade. However, this position does not hold water due to the
following contention:
The eyewitnesses presented by the prosecution did not positively identify
respondent Takad as the person who took the tricycle in question. Rather, it based its
contention that it was Takad who took the tricycle on mere circumstantial evidence
without positive identification as can be gleaned from the affidavit executed by Carlos
Parlade as can be seen below:
Q: Please go over your sworn statement and tell us if you
gave to the police those descriptions of the accused that you
mentioned?
A: I said here, in answer to #14, medyo maigsi ang buhok
Q: But the other description that he is of light complexion and
has pronounced jaws, did you put that in your statement?
A: No, sir.
And another in this manner:
Q: You said that you shouted at the man on the tricycle and he
looked but suddenly started the motor and drove away with
the tricycle, is that right?
A: yes,sir
Q: Since the purpose of the man was to flee from you, he
merely glanced back, is that right?
A: Hindi po, opo, medyo matagal po
Q: What is really your answer?
A: Opo
Q: I understand that you went back to the police station on
November 21, at 5:30 in the afternoon?
A: Yes, sir
Q: The police had told you that Takad had been arrested and
you have to come back and identify him, is that right?
A: Yes, sir
Q: When you went to the police station, they led you into a
room and the investigator pointed out Takad to you, is that
right?
A: Yes, sir
Q: And he asked you if he was the one who took the tricycle?
A: Yes, sir
Q:In other words, you were not shown the accused Takad in a
police lineup with other persons of the same built so you could
try to pick him out as the tricycle thief?
A: No, sir.
Thus, there is doubt in the regularity of the identification by Carlos Parlade of the
accused. From his testimony, it is clear that he did not positively identify the accused-
appellant. At the time of the incident, he only made a very fleeting glance on the person.
At that moment, he had an impression that the accused had a light complexion and a
well-built body (Medyo malapad). During the proceedings in the police station where he
was supposed to identify the assailant, he identified Takad as allegedly the person who
stole the motorcycle, not because he was certain that Takad was really the assailant but
because he was the only person in the station and because he was pointed by the
investigator as their suspect. The fact is that the accused was not identified in a police
line-up, but rather he was directly pointed. From all indications, the identification of
accused-appellant by Carlos Parlade was suggested by the police and this is
objectionable.
As can be gleaned from the case People vs Baconguis, the identification process
was surrounded by circumstances which were clearly tainted by improper suggestion.
While there is no law requiring a police line-up as essential to a proper identification, as
even without it there could still be proper identification as long as the police did not
suggest the identification to the witness, the police in both cases did even more than
suggest to the complainant. In People vs Baconguis, the Supreme Court held that:
Thus, by Lydia's own account, she arrived at the cell where appellant was
detained. It was the police officer who pointed the accused and told Lydia that the
appellant was the suspect. A show-up, such as what was undertaken by the police
in the identification of appellant by Lydia, has been held to be an underhanded
mode of identification for "being pointedly suggestive, generating confidence
where there was none, activating visual imagination, and, all told, subverting their
reliability as an eyewitness." Lydia knew that she was going to identify a suspect,
whose name had priorly been furnished by her brother-policeman, when she went
to the police station. And the police pointed appellant to her, and told her that he
was the suspect, while he was behind bars, alone. (People vs Baconguis, G.R. No.
149889, December 2, 2003)
In the case at bar, Carlos Parlade went to the police station for the purpose of
identification after he was informed that the accused was arrested. He never met Takad
previously and he only knew Takad due to Zenny Aguirres statement that Takad warned
Zenny in seeing the tricycle in Pasig.
In People v. Acosta, this Court rejected the identification by a witness of the
accused while the latter was alone in his detention cell. There, this Court held that the
identification of the suspect, which was tainted by the suggestiveness of having the
witness identify him while he was incarcerated with no one else with him with whom he
might be compared by the witness, was less than objective to thus impair the
trustworthiness of their identification.
The unusual, coarse and highly singular method of identification, which revolts
against accepted principles of scientific crime detection, alienates the esteem of
every just man, and commands neither respect nor acceptance. (People v. Cruz,
G.R. No. L-24424, March 30, 1970)
In the same manner, Mario Mankas testified that he did not directly identified
Takad as the person who took the tricycle. This can be gleaned from the following:
Q: You said that the tricycle was running at a very fast rate. 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: Yes, sir
Q: And apart from the fact that the tricycle was running at a
very fast speed, you could not have seen much of the person
driving it because, as you said in your affidavit, hindi ko
gaanong namukhaan dahil nakayuko ako. Is that right?
A: Yes, sir.
Q: Now, because you only had a glance of the man and
because your head was bowed down, when you were asked
by the police to describe the man on the tricycle, you could
only describe his built. Is that right?
A: Yes, sir
From the foregoing, none of the witnesses positively identified the Takad as the
person who allegedly stole the tricycle. It is a basic tenet of law that circumstantial
evidence is the weakest form of evidence that can be presented in court. The only
instance that it would prove either the guilt or innocence of the accused is if the
circumstances would clearly point to the accused as the person who indeed committed
the crime. The testimony of the witnesses presented by the prosecution proved only the
fact that there was a lack of identification with respect to the identity of Takad as the
main culprit in the case. Clearly, mere glances at the person who committed the crime
does not amount to a positive identification of the person.

II
THE ELEMENTS OF CARNAPPING AS PUNISHED UNDER THE ANTI
CARNAPPING ACT WAS NOT CLEARLY ESTABLISHED THUS FAILING TO PROVE
THE GUILT OF TAKAD BEYOND REASONABLE DOUBT

Under Republic Act 10883 otherwise known as the New Anti Carnapping Act of
the Philippines, Carnapping is committed by the taking, with intent to gain, of a motor
vehicle belonging to another without the latters consent, or by means of violence or
intimidation against persons, or by using force upon things. Thus, the elements that
must be met in order to commit Carnapping are as follows:
a. There is an unlawful taking of a motor vehicle
b. The taking of the motor vehicle must be without the owners consent
c. The taking must be with intent to gain
d. There is an application of violence or intimidation against persons or force
upon things
As can be gleaned from the facts of the case, as well as the testimony of the
witnesses, the prosecution failed to establish all the elements of carnapping which would
prove the guilt of the accused. The prosecution failed to establish proof beyond
reasonable doubt of the existence of the following elements:
There is no unlawful taking of a motor vehicle
Based on the Kasunduan entered into by and between the TODA and BDC, the
ownership of the tricycle, in case of failure to pay the loan on the scheduled date, will be
under the supervision or safekeeping of the TODA and not by the BDC nor shall the
ownership and possession of the tricycle be transferred to another. Part of the
Kasunduan in relation this is reproduced below:
15.1. Kapag ang isang kasapi ay hindi makabigay ng
tatlong karampatang arawang hulog- bayad sa loob ng isang
kinsenas o napapaloob sa isang tseke sa BDC, ang kanyan
tricycle ay hahatakin ng SAMAHAN kasama ang linya(TODA)
at/o ang 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 nagkasala
15.2. Ang nahatak na tricycle ay mananatili sa
pangangasiwa ng SAMAHAN hanggat hindi lubos na
nababayaran ang nagging pagkukulang sa SAMAHAN
15.3. Ang tricycle na mula sa inutang sa BDC ay hindi
maaaring isanla, ibenta o ilipat ng pagmamayari hanggat hind
pa lubusang nababayaran ang utang at pananagutan sa BDC

As can be seen from the Kasunduan, the owner of the tricycle in case of default
in payment shall be the TODA itself and not the BDC. Since failure to pay the loaned
amount transfers the ownership of the tricycle to the TODA, then the BDC, through its
representative, cannot in any way consider itself an owner of the tricycle despite the
failure to pay the required amount. Thus, the 2 nd element of the crime of carnapping was
not present in this case.

III
THAT THE PROVISIONS OF THE KASUNDUAN WERE NOT FAITHFULLY
COMPLIED WITH

Based on testimony by the representative of BDC, they took the tricycle from the
defendant after the latter defaulted in her payment of the loan without any authorization
from the court to do so. Thus, constituting a violation of existing laws regarding
appropriation of mortgaged properties.
Article 2088 of the New Civil Code of the Philippines prohibits the execution of a
Pactum Commisorium between the parties. It is stated that:
Art.2088 The creditor cannot appropriate the
things given by way of pledge or mortgage, or
dispose of them. Any stipulation to the contrary shall
be null and void.
From the provisions of the Kasunduan itself, it is expressly stipulated that in
case of failure to pay the amount of the loan on the date specified, the possession of the
tricycle shall be transferred to the organization and not to BDC, as what their
representative did. The Kasunduan further prohibits the transfer of the said motor
vehicle to any other entity while the balance is yet to be paid. Since the said agreement
is a contract freely entered into by the parties, such an agreement constituted the law
between the parties and it must be complied with faithfully and in good faith.
IV.
LACSAMANA AND TAKAD OWN THE TRICYCLE - SUBJECT OF THE CRIME
Due to failure to pay the August 2003 installment, Zeny Aguirre requested
Lacsamana and Takad to bring the tricycle to the house of Marasigan. It was pulled out
on October 2, 2003 and for more or less than 15 days the subject tricycle was placed on
the custody of the treasurer. Aguirre and Lacsamana had a verbal agreement that they
will be given until October 17, 2003 to redeem the said tricycle or else total permanent
repossession will take place. However, Lacsamana again failed to pay.
Article 1484 of the Civil Code explicitly provides:
ART. 1484. In a contract of sale of personal property the price of which is payable in
installments, the vendor may exercise any of the following remedies:
(1) Exact fulfillment of the obligation, should the vendee fail to pay;
(2) Cancel the sale, should the vendees failure to pay cover two or more installments;
(3) Foreclose the chattel mortgage or the thing sold, if one has been constituted, should
the vendees failure to pay cover two or more installments. In this case, he shall have no
further action against the purchaser to recover any unpaid balance of the price. Any
agreement to the contrary shall be void.
The aforequoted provision is clear and simple: should the vendee or purchaser of
a personal property default in the payment of two or more of the agreed installments,
the vendor or seller has the option to avail of any one of these three remedies either
to exact fulfillment by the purchaser of the obligation, or to cancel the sale, or to
foreclose the mortgage on the purchased personal property, if one was constituted.
These remedies have been recognized as alternative, not cumulative, that the exercise
of one would bar the exercise of the orders. It may also be stated that the established
rule is to the effect that the foreclosure and actual sale of a mortgage chattel bars
further recovery by the vendor of any balance on the purchasers outstanding obligation
not so satisfied by the sale. (Cruz v. FIFC, G.R. No. L-24772. May 27, 1968)
And the reason for this doctrine was aptly stated in the case of Bachrach Motor
Co. v. Millan, thus
"Undoubtedly the principal object of the above amendment was to remedy the
abuses committed in connection with the foreclosure of chattel mortgages. This
amendment prevents mortgagees from seizing the mortgaged property, buying it
at foreclosure sale for a low price and then bringing suit against the mortgagor for
a deficiency judgment. The almost invariable result of this procedure was that the
mortgagor found himself minus the property and still owing practically the full
amount of his original indebtedness. Under this amendment the vendor of
personal property, the purchase price of which is payable in installments, has the
right to cancel the sale or foreclose the mortgage if one has been given on the
property. Whichever right the vendor elects he need not return to the purchaser the
amount of the installments already paid, if there be an agreement to that effect.
Furthermore, if the vendor avails himself of the right to foreclose the mortgage
this amendment prohibits him from bringing an action against the purchaser for
the unpaid balance." (Bachrach Motor Co. v. Millan, 61 Phil. 409)
Initiatively, it is clear that the BDC chooses the first option. It did not elect to
cancel the sale or resort to a foreclosure of the chattel mortgage. However, the
subsequent acts performed by the corporation are wholly inconsistent with the first
remedy. If the first remedy is availed of, the unpaid seller cannot anymore choose other
remedies, unless the first remedy becomes impossible. BDC should have accepted the
payment made by Lacsamana or if the latter refused to pay, BDC should have filed a
complaint before the court for collection with a prayer for the issuance of a writ of
preliminary attachment. Nevertheless, contrary to Art. 1484, BDC chooses rescission
even if specific performance was not totally impossible. The cancellation of the sale was
also contrary to law. There was no notice of rescission sent and proper action for
rescission filed before the Court.
BDCs act could not have been constituted as a foreclosure of the Chattel
Mortgage since the properties were not sold in a public action, rather the properties
were taken by BDC itself, which is void being contrary to Article 2088 NCC, which
prohibits the execution of a Pactum Commisorium between the parties.
WHEREFORE, defendant Takad respectfully prays the Court to render judgment:
1. Acquitting the accused and absolving him of all charges for failure to prove his
guilt beyond reasonable doubt
2. Ordering the plaintiff to pay the defendant moral and exemplary damages in the
amount of P200,000 and attorneys fees in the amount of P200,000 as well as
other damages the Court may deem necessary