Republic of the Philippines

REGIONAL TRIAL COURT

National Capital Judicial Region
BRANCH 67
Pasig City

PEOPLE OF THE PHILIPPINES,

Plaintiff,
CRIMINAL CASE NO. 1234
-versus-
FOR: Violation of R.A. 6739
ROMULO TAKAD, (Anti-Carnapping Act)
Defendant,

x---------------------------------/

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
 STATEMENT OF THE FACTS

On May 2003, the Bayan Development Corporation (BDC),

represented by its Account Officer Zenny Aguirre (Aguirre),
extended a group loan to SCCPPTODA 2 amounting to
480,000.00 pesos, evidenced by a promissory note, chattel
mortgage and Kasunduan to that effect. Ma. Teresa
Lacsamana (Lacsamana) was one of the “borrowers” in this
transaction and received a share of 80,000.00 pesos.

After the loan was granted, BDC released the tricycle to

Lacsamana, who was accompanied by her live-in partner
Romulo Takad (Takad). The Land Transportation Office
(LTO) Official Receipt and Car Registration were in the name
of Lacsamana.

The loan was to be paid within a period of thirty months.

However, Lacsamana failed to comply with her obligation.
Her last payment was for the month of July 2003. Upon her
default, BDC repossessed the tricycle on October 2, 2003 by
virtue of the authority granted to it by the aforementioned
Kasunduan. Lacsamana requested for more time to pay the
balance of the loan, but her request was denied by BDC.
There was no court order authorizing either the transfer of
ownership or repossession of the tricycle.

The vehicle was then given to Ricardo Marasigan, the

treasurer of the group, for management. During this period,
BDC allowed Lacsamana to redeem the tricycle by paying
the arrears on or before October 17, 2003. However, she
again failed to do so.

On October 22, 2003, Lacsamana and Takad went to the

office of BDC. They offered to pay the outstanding balance
and redeem the tricycle. However, BDC refused their offer.

According to Aguirre,
kung makikita „yan saTakad
Pasig!”replied by saying,
However, “Wagtona
according wag
Takad
and Lacsamana, he simply pleaded with Aguirre, hoping that
he could avoid seeing the tricycle and hurting his feelings.

On November 20, 2003, the tricycle was given to the new

assignee Carlos Parlade (Parlade), who also resided within
Pasig City.

2
On or about 1 o’clock in the morning of November 21, 2003,
Parlade came home and changed his clothes. When he
returned outside to chain the tricycle, he saw it being
pushed away at a distance of about 5 meters from his home.
The shocked Parlade shouted at the person pushing the
tricycle. Under the illumination of a big streetlight, the
carnapper turned and faced Parlade, kick-started the
tricycle, and drove away at about twice the usual speed of
other tricycles.

During his flight, he passed Mario Mankas (Mankas), a

neighbor and acquaintance of Parlade, who was bent over
while washing his hands. Because of his position, he could
not clearly see the face of the carnapper, but he could
reasonably identify the build of his body.

On 7 o’clock in the morning of the same day, Parlade

informed BDC, through Aguirre, of the aforementioned
carnapping. During the day, Aguirre, Parlade and Mankas
gave their statements to the police.

Takad was arrested and subsequently identified by both

Parlade and Mankas as the carnapper. However, 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,
currently seeing as his live-in partner Lacsamana was
in Singapore.

ISSUE

Based on the facts of the case, is the accused Romulo Takad

liable for violation of R.A. 6739?

ARGUMENTS

THE ACCUSED IS NOT LIABLE FOR VIOLATION OF R.A. 6739

Carnapping is defined by the law as the taking, with intent

to gain, of a motor vehicle belonging to another without the
latter’s consent, or by means of violence against or
intimidation of persons, or by using force upon things.1

1
Section 2, R.A. 6739

3
More specifically, the elements of the crime 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 was 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.

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.

Intent to gain, or animus lucrandi, as an element of the

crime of carnapping, is an internal act and hence presumed
from the unlawful taking of the vehicle. Unlawful taking is
the taking of the vehicle without the consent of the owner,
or by means of violence against or intimidation of persons,
or by using force upon things; it is deemed complete from
the moment the offender gains possession of the thing, even
if he has no opportunity to dispose of the same.

I. Bayan Development Corporation (BDC) is not

the owner of the tricycle accused to have been
carnapped by defendant.

In order to support conviction, the prosecution must be able

to prove that all the elements of the crime charged are
present in the case. As such, 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. A person who receives a loan
of money or other fungible thing acquires the ownership
thereof, and is bound to pay to the creditor an equal amount

4
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 P80,000.00, Lacsamana became the owner of
said amount and has acquired the right to appropriate the
same. Logically, the tricycle she acquired from the money is
her property and not of BDC. Lacasama need only to pay
BDC the same amount granted to her, including the
stipulated interest if there is any.

Ownership can also be deduced by the execution of

Lacsamana of a chattel mortgage in favor of BDC, for if it
was BDC who owns the said vehicle, the execution of the
chattel mortgage would be futile.

Upon default, BDC should have instituted a foreclosure

proceeding of the chattel mortgage. Thus, repossession of
the tricycle without the appropriate proceeding is illegal. The
presence of the Kasunduan is of no moment because it only
provides that in case of default, 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. It did not provide
that upon default on certain installments, the tricycle could
be immediately assigned to somebody else. In fact, 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.” It is clear then that the
repossession should be in accordance with the Chattel
Mortgage. The mortgagee may, after thirty (30) days from
the time of the condition broken, cause the foreclosure of
the mortgage and the mortgaged property be sold at public
auction by a public officer. 2

II. Lacsamana and Takad own the tricycle in co-

ownership.

Although it was only Ma. Teresa Lacsamana, Takad’s

common-law wife, who contracted the loan with BDC and
the Land Transportation Office (LTO) Official Receipt and Car
Registration were also in her name, Takad is considered as
co-owner of the tricycle based on Article 147 of the Family
Code.
2
Sec. 14, Act No. 1508

5
 “Art.147. 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 and 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 former‟s efforts consisted
in the care and maintenance of the family and the
household.”

Thus, as co-owner, and assuming arguendo that it was really

Takad who took the tricycle, 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.
There is a presumption, absent any evidence to the
contrary, that the properties owned by them during their
cohabitation are acquired through their joint efforts.

III. In the case at bar, notwithstanding the

statements above and assuming arguendo, 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.

Zenny Aguirre only presumed that it was Takad who

carnapped the vehicle due to the latter’s statement to the
effect that, “Wag na wag kung makikita „yan sa Pasig!”
However, 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. Relative to this fact is her testimony during
her cross-examination:

6
“Q. MR. PARLADE TOLD YOU THAT HE SAW A MAN
DRIVING AWAY WITH THE TRICYCLE, IS THAT
RIGHT?

A. YES, SIR.

Q. HE ALSO TOLD YOU THAT, UNFORTUNATELY, HE

DID NOT RECOGNIZE THE MAN BECAUSE HE WAS
DRIVING AWAY, IS THAT RIGHT?

A. THEY DID NOT KNOW HIM BUT THEN HE

RECOGNIZED HIM BECAUSE THEY FACED EACH
OTHER.

Q. BUT MR. PARLADE TOLD YOU THAT HE DID NOT

KNOW THE ACCUSED TAKAD PERSONALLY?

A. YES, SIR.

Q. DID MR. PARLADE TELL YOU THAT HE WAS ABLE

TO SEE THE MAN‟S APPEARANCE AS WELL AS HIS
FACE?

A. YES, SIR.

Q. AND WHEN YOU HEARD FROM MR. PARLADE THAT

THE TRICYCLE HAD BEEN STOELN, YOU THOUGHT
RIGHT AWAY THAT IT WAS THE ACCUSED TAKAD
WHO DID IT, IS THAT RIGHT?

A. YES, SIR. THAT FORMED IN MY MIND.

Q. YOU THOUGHT THAT THE THIEF WAS THE

ACCUSED TAKAD BECAUSE HE WARNED YOU
AGAINST HIS SEEING THE TRICYCLE IN PASIG, IS
THAT RIGHT?

A. YES, SIR.

Q. AND YOU TOLD PARLADE ABOUT WHO YOU

THOUGHT TOOK THE TRICYCLE, IS THAT RIGHT?

7
 A. YES, SIR.

Q. AND, BASED ON YOUR DESCRIPTION OF

ACCUSED TAKAD, MR. PARLADE AGREED WITH
YOU?

A. YES, SIR.”

Additionally, Aguirre also testified to this effect:

“Q.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?

A. YES, SIR.

Q. ARE YOU SURE THAT HE SAID WAS, “WAG NA

WAG KONG MAKIKITA ANG TRICYCLE NA „YAN SA
PASIG.” THAT IS ALL HE SAID?

A. YES, SIR.
Q. DID HE SAY, IN ADDITION, “KUNG MAKIKITA KO
„YAN SA PASIG, NANAKAWIN KO „YANG TRICYCLE
NA „YAN.” DID HE SAY THAT?

A. NO, SIR.

Q. IF HE DID NOT SAY “KUNG MAKIKITA KO „YAN SA

PASIG, NANAKAWIN KO „YANG TRICYCLE NA
„YAN”, THE IDEA THAT HE MEANT TO STEAL THE
TRICYCLE IS ONLY YOUR IDEA. IS THAT RIGHT?

A. YES, SIR.

Q. HE COULD HAVE VERY WELL MEANT THAT “KUNG

MAKIKITA KO „YAN SA PASIG, IDEDEMANDA KO
KAYO NG CARNAPPING DAHIL WALA KAYONG

8
 KARAPATANG KUNIN ANG TRICYCLE SA KANYA.
THAT IS WHAT HE COULD HAVE MEANT. IS THAT
RIGHT?

A. MAYBE, SIR.”

Hence, speculations and probabilities cannot substitute for

proof required to establish the guilt of the accused beyond
reasonable doubt.3 In a criminal case, every circumstance
favoring the innocence of the accused must be duly taken
into account. 4

Subsequently, Carlos Parlade also testified as shown on the

transcript of stenographic notes taken at the hearing on
January 27, 2004, stating among others that:

“Q. YOU SAID IN YOUR SWORN STATEMENT THAT

YOU ARE A MEMBER OF THE MAYBUNGA
SECURITY FORCE, IS THAT RIGHT?

A. YES, SIR.

Q. YOUR WORK INVOLVED LOOKING FOR PERSONS

WHO COMMIT CRIMES IN YOUR BARANGAY, IS
THAT RIGHT?

A. YES, SIR.

Q. WERE YOU AWARE THEN THAT IT WAS

IMPORTANT FOR YOU, AS A WITNESS TO A
CRIME, TO GIVE A GOOD DESCRIPTION OF THE
PERSON WHOM YOU SAW STOLE YOUR TRICYCLE?

A. YES, SIR.

Q. YOU SAID THAT YOU SAW HIS FACE. DID YOU

SEE IT CLEARLY?

A. YES, SIR.

3
People v. Isla, 343 Phil. 562, 570 [1997], citing People v. Jumao-as, 230 SCRA 70 [1994].
4
People v. Sinatao, 319 Phil. 665, 687 [1995].

9
Q. DID YOU NOTE THAT HE HAD FAIR OR LIGHT
COMPLEXION?

A. YES, SIR.

Q. YOU ALSO NATURALLY NOTED THAT HE HAD

SHORT CROP HAIR, IS THAT RIGHT?

A. YES, SIR.

Q. YOU ALSO NOTICED THAT HE HAD PRONOUNCED

JAWS?

A. YES, SIR.

Q. BUT, ALTHOUGH YOU NOTED THESE DETAILS OF

HIS FACE, YOU STILL DID NOT TELL THE POLICE
WHEN YOU REPORTED THE CRIME THAT HE HAD
FAIR OR LIGHT COMPLEXION, IS THAT RIGHT?

A. BECAUSE THE POLICE DID NOT ASK ME THOSE

DETAILS.

Q. BUT, SINCE YOU KNEW BECAUSE OF YOUR

EXPERIENCE THAT THOSE DETAILS WERE
IMPORTANT TO THE POLICE, WHEN YOU WERE
NOT ASKED, YOU DID NOT BOTHER TO STILL
GIVE THE POLICE YOUR DESCRIPTION OF THE
FACE OF THIS PERSON?

A. I WAS NOT ABLE TO REMEMBER THOSE.

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 AND BUHOK.”

10
 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. ”

Consequently, Parlade also testified that:

“Q: YOU SAID THAT, AS YOU WENT OUT OF YOUR

HOUSE, YOU SAW THE ACCUSED PUSHING THE
TRICYCLE AWAY, IS THAT RIGHT?

A. YES, SIR.

Q. NOW, YOUWITH
ACCUSED SAIDTHE
THAT WHEN YOU
TRICYCLE, SAW FIVE
HE WAS THE
METERS FROM YOU, IS THAT RIGHT?

A. YES, SIR.

Q. IN OTHER WORDS, HE WAS SOMEWHAT NEAR

YOU?

A. YES, SIR, “MEDYO MALAPIT SIYA.”

Q. NOW, YOU SAID “MEDYO MALAPIT SIYA,” PLEASE

READ WHAT YOU SAID IN YOU SWORN
STATEMENT ABOUT THE DISTANCE OF THE
ACCUSED FROM YOU AT THE TIME.

A. “NANG MAKITA KO MEDYO MALAYO NA ANG

TRICYCLE NA ITINUTULAK NG ISANG TAO.”

Q. YOU SAID WHEN YOU TESTIFIED THAT HE WAS

“MEDYO MALAPIT” BUT YOU SAID IN YOUR
AFFIDAVIT, “MEDYO MALAYO,” WHICH IS
CORRECT?

A. I SAID HE WAS A BIT FAR BECAUSE HE WAS FIVE

METERS FROM ME.

11
 Q. 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, 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. OPO, HINDI PO, WHAT IS REALLY YOUR ANSWER?

A. OPO, MEDYO MATAGAL PO.”

Inconsistencies on the affidavit and the testimonies given in

the court as shown above are apparent. More so, 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.

On the other hand, the other witness presented by the

prosecution was Mario

playing computer Mankas. Hehouse
in a neighbor’s said that
and after
while he finish
washing
his hands at the gate in the front yard, he saw Parlade
running after a tricycle. He also added that because the
tricycle was running at a very fast speed, he had only a brief
glance of the driver. Said witness also stated in paragraph 5
of his affidavit that “hindi ko gaanong namukhaan dahil
nakayuko ako.” In fact, the man driving the tricycle away
did not move but just sat still holding the steering bars of
the tricycle according to him. Additionally, Mankas also said
that the he was able to identify the accused because of the
shape of his body. However, there is no notable distinction
in the body shape of the accused, such that of a hunchback,
in order to merit his identification apart from the others who
has the same body built just like his.

IV. There was also failure to have a police lineup

during the time Parlade and Mankas identified
Takad as the one who carnapped the vehicle.

12
Although police lineup is not a mandatory requirement in the
court rules, said lineup is crucial in the identification of the
carnapper in this case because of the inconsistencies in the
identification of the accused. If only a fair police lineup was
conducted, there is a possibility of the witnesses not to point
Takad as the culprit. 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. However, no such thing was conducted in this case.

V. The vehicle subject of this case, which is a

tricycle, was never recovered in the hands of
Takad. Its location is still in question.

The tricycle accused to have been carnapped by the

defensant was never recovered in his possession. Neither
any evidence was presented to prove that the tricycle came
to his possession after it was repossessed by BDC.

In light of the prosecution’s evidence, this honorable court

should not be convinced that the guilt of the accused has
been proved beyond reasonable doubt. “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
innocent man of the convicted
being defense. The
for slightest
an offensepossibility of an
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.” 5

“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

5
People v. Manzano, 227 SCRA 780, 787 [1993].

13
presumption of innocence with proof of guilt beyond
reasonable doubt.” 6

VI. 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.

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
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. 7

Hence, 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. Conviction must rest on
nothing less than a moral certainty of the guilt of the
accused. “For circumstantial evidence to convict, the Rules
of Court require that: (1) there is more than one
circumstance; (2) the facts from which the inferences are
derived are proven; and (3) the combination of all the
circumstances is such as to produce a conviction beyond
reasonable doubt. Based on jurisprudence, it expound that

the circumstantial
constitute an unbrokenevidence
chain presented
which leadsand proved
to one fair must
and
reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person.” 8

Granting that the defense of alibi was indeed weak, the fact
alone does not justify the judgment of conviction. The
burden of proof in cases is on the prosecution. 9 Failing in its
task to prove the guilt of the accused beyond reasonable
doubt, the prosecution cannot rely on the weakness of the
defense to secure a conviction. 10

6
People v. Dismuke, 234 SCRA 51, 6 1 [1994], citing People v. Dramayo, 149 Phil. 107 [1971]; People v.
Garcia, 215 SCRA 349 [1992].
7
U.S. v. McMann, 4 Phil. 561 (1905)
8
People v. Santos, 333 SCRA 319, 336 [2000].
9
Rule 131, Sec. 2
10
People v. Ola, L-47147 (July 3, 1987); People v. Formentera, L-30892 (June 29, 1984), 130 SCRA 114;
People v. Somontao, L-45366-68 (March 27, 1984), 128 SCRA 415; Duran v. CA, L-39758 (May 7, 1976), 71
SCRA 68.

14
 PRAYER

WHEREFORE, in consideration of the foregoing, 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.A. 6739.

Respectfully submitted.

Pasig City, Philippines, this 8th day of June 2004.

By:

ATTY. JAMAICA MAGLINTE-DACUTANAN

Counsel for the Defendant
IBP Lifetime No. 12345;5/10/2005
PTR No. 123456; 8/1/2013
Roll of Attorney No. 2003-654321
MCLE Compliance No. III – 987654

Copy furnished:

Atty. Jason Oliver Sun

Counsel for the Plaintiff
SUN LABASTIDA GORDONAS AND ASSOCIATES
Manila, Philippines

Hon. Truce Salvador

City Prosecutor
Palace of Justice
Pasig City
The Branch Clerk of Court
RTC, Branch 67
Pasig City

Kindly submit this memorandum for the consideration

of the Honorable Court immediately upon receipt hereof.

15