2020-1963

Republic of the Philippines

5th MUNICIPAL CICUIT TRIAL COURT OF KOLAMBUGAN-
TANGKAL
th
12 Judicial Region
Kolambugan, Lanao del Norte
PEOPLE OF THE PHILIPPINES, CRIM CASE NO.
2820 Plaintiff,
FOR: RECKLESS IMPRUDENCE
-versus- RESULTING TO HOMICIDE

ROMNICK NATINGGA TANTAN,

Accused.
X-----------------------------/

MEMORANDUM

COMES NOW accused through the undersigned counsel, unto this

Honorable Court most respectfully avers:

TIMELINESS OF THE PLEADING

On September 13, 2018, accused was in receipt of Order emanating

from the Honorable Court directing the submission of a Memorandum thirty
(30) days from date of issuance, which is on August 29, 2018. Thirty (30)
days from August 29, 2018 falls on September 29, 2018 which is a Saturday.
The applicable procedural rules states that if the last day for the filing of a
pleading falls on a weekend, the deadline for the filing of the same shall fall
on the next working day. In accordance with the rules, petitioner has until
October 1, 2018 or on Monday following the weekend to file the required
Memorandum. This pleading is filed on even date, hence, still well within the
reglementary period.

STATEMENT OF FACTS AND OF THE CASE

The facts culled from the evidences presented by both the prosecution
and the accused are as follows:
 At about 4:30 in the afternoon of July 8, 2017, an accident occurred
along the national highway Barangay Libertad. The accused who was driving
a cargo truch was forced to leave his own lane and swerve to his left in order
to avoid the tricycle driven by FORTUNATO GALON who suddenly re-entered
the highway by way of a U-turn maneuver after a short parking somewhere
along the truck’s lane. The tricycle unfortunately collided against the truck
and pictures reveal that it was the driver’s side of the tricycle which was hit
in the collision. The accident resulted to the death of the driver of the tricycle
and the injuries to a passenger. The accused then immediately disembarked
the truck and went to the nearest police authorities. Spouse of Fortunato
Galon thereafter caused the filing of this instant case.

ISSUE

IS THE ACCUSED GUILTY OF THE CRIME IMPUTED UPON HIM?

DISCUSSION

Based on all facts proven and applicable laws and jurisprudence, it is

beyond doubt that the prosecution failed to prove the guilt of the accused for
the offense charged.

RECKLESS IMPRUDENCE, as defined in Article 365 of the Revised Penal

Code, consist in voluntarily, but without malice, doing or failing to do
an act from which material damage results by reason of inexcusable
lack of precaution on the part of the person performing or failing to
perform such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.

In the case of GONZAGA vs. PEOPLE 1, the Supreme Court exhaustively

discussed on the establishment of the motorist’ liability for Reckless
Imprudence. In the said case, it was emphasized that “In order to
establish a motorist’s liability for negligent operation of a vehicle, it
must be shown that there was a direct causal connection between
such negligence and the injuries or damages complained of. To
constitute the offense of reckless driving, the act must be
something more than a mere negligence in the operation of a motor
vehicle – A WILLFUL AND WANTON DISREGARD OF THE
1
Gonzaga vs. People, G.R. No. 195671, January 21, 2015)
CONSEQUENCES IS REQUIRED. Willful, wanton or reckless disregard
for the safety of others within the meaning of reckless driving
statues has been held to involve a conscious choice of a course of
action which injures another, either with knowledge of facts which
would disclose the danger to any reasonable person. Verily, it is the
inexcusable lack of precaution or conscious indifference to the
consequences of the conduct which supplies the criminal intent and
brings an act of mere negligence and imprudence under the
operation of the penal law, without regard to whether the private
offended party may himself be considered likewise at fault.”

Article 2179 of the New Civil Code states that “When the plaintiff’s
own negligence was the immediate and proximate cause of his
injury, he cannot recover damages…”2.

Proximate cause is defined as that cause, which, in natural and

continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred. The proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first
acted, under such circumstances that the person responsible for the
first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or
default that an injury to some person might probably result
therefrom. In the case of Corliss vs. Manila Railroad Company, it was held
that “...Negligence is want of the care required by the
circumstances. It is a relative or comparative, not an absolute, term
and its application depends upon the situation of the parties and
the degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree of
care is necessary, and the failure to observe it is a want of ordinary
care under the circumstances.”3

2
Article 2179, New Civil Code
3
Martinez vs. Barredo, 81 Phil. 1 [1948]; Miranda vs. Malate Garage and Taxicab, Inc., 99 Phil. 670 [1956];
Manalo vs. Robles Transportation Co., Inc., 99 Phil. 729 [1956].
 The object evidences presented in the instant case, ironically
submitted by the prosecution, in particular the sketch drawn by the
investigating officer based on the skid marks offered as Exhibit “E” by the
prosecution and the pictures taken of the actual collision of vehicles (Exhibits
_____) prove the obvious facts of that it was the victim and not the herein
accused who committed negligence resulting to the unfortunate accident.
Skid marks caused by tires on roads occur when a vehicle wheel
stops rolling and slides or spins on the surface of the road 4. The skid
marks as recorded and sketched by the investigation officer indicates that
the accused has started to suddenly slam on the breaks when it was already
going for the left lane. Meanwhile, the pictures of the collision show that it
was the left side of the tricycle which was hit in the collision. The fact that it
was only the driver’s side of the tricycle which was hit by the truck indicates
that the victim tried to do a U-turn maneuver to go back to the left lane from
the lane of the accused. From the object evidence alone, it can be clearly
deduced that the vehicle of the victim was heading from the rightful lane of
the accused, and that that herein accused actually tried to avoid the victim’s
vehicle by going to his left.

Real evidence being directly addressed to the senses of the court is

undeniably the most convincing and satisfactory. Proof which is
addressed directly to the senses, generally characterized as a real
or demonstrative evidence, while comprising a comparatively small
proportion of the evidence ordinarily produced during trial, is a
most convincing and satisfactory class of proof, and its importance
in the determination of controversies is relatively great 5. In the case
of People vs. Cañete, “…PHYSICAL EVIDENCE IS THE EVIDENCE OF THE
HIGHEST ORDER. It speaks more eloquently that a hundred
witnesses.6”

What the object evidence proves is clearly contrary to the unreliable

testimony of the prosecution witness in the person of CARMELITA GIMONY,
who testified that there was a front-on collision because accused supposedly
just turned away from his own lane and crashed on the tricycle. Front-on
collision is impossible based on the evidences because that would have
resulted to the tricycle being hit up front, and consequently it should have

4
Wikipedia, SKID MARK.
5
20 Am. Jur. 600
6
People vs. Enrique Cañete, G.R. No. 128321, March 11, 2004
been the front side which would have to suffer huge damage, possibly
resulting to the squeezing of the passenger box.

Carmelita Gimony’s testimony when subjected to a cross-examination

also shows that she is not a reliable source of information when it comes to
what actually transpired during the accident. When asked which part of the
tricycle was hit first, she straight-faced lied to the Honorable Court and said
it was a head-on collision, and that she saw that it was the front of the
tricycle which was hit by the truck. However, the pictures taken by the
investigating officer PO3 Junaid Bacarat, which are objective and does not lie,
reveals that it was actually the left side of the tricycle which was hit first.
Moreover, upon cross-examination, said witness cannot seem to make a sure
estimation the distance between two vehicles when they met on the same
lane, and the distance of the two vehicles from the place of collision up to
the place where they finally stopped. This puts doubt to her pledge that she
saw the accident transpire. Her answers to the cross-examination and the re-
direct are at best confused and uncertain. It is worthy to note that she is the
only alleged eye-witness presented by the prosecution, and even when she
tried to pretend to have actually seen the accident transpire, her testimony
is ironically controverted by the object evidence. Not to mention that she is a
neighbor of Fortiliano Galon and the latter is a kagawad of their barangay
and hence, said witness expectedly shows loyalty and/or social affiliation to
Galon.

Furthermore, Article 2185 also states that “Unless there is proof to

the contrary, it is presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap, he was violating
any traffic regulation”7.

The reckless act of entering the highway without respecting the right
of way of herein accused is a blatant display of his negligence. Accused
could not be faulted when he attempted to avoid the tricycle and swerved to
the left. The GPS record of the driving of accused even proves that accused
was not even speeding up. He was driving at an average speed of 38
kilometers per hour. The reckless act of Galon put accused in an emergency
situation which forced him to act quickly and avoid him. Yet, despite his
avoidance, Galon even continued his course and in the process, he crashed
his tricycle to the truck. The damage caused was not due to the speeding up
7
Article 2185, NCC
of the truck, but only because it was the tricycle slammed itself on the truck.
An individual who suddenly finds himself in a situation of danger
and is required to act without much time to consider the best means
that may be adopted to avoid the impending danger, is not guilty of
negligence if he fails to undertake what subsequently and upon
reflection may appear to be a better solution, unless the emergency
was brought by his own negligence8.

Galon drove his tricycle on a national highway which is basically

another manifestation of his own recklessness. The Mayor’s Permit proves
that was operating a tricycle-for-hire. However, the same should not be
made to be an equivalent of a franchise. Galon apparently only has a
Mayor’s Permit but he did not have a franchise to operate his tricycle as a
public utility vehicle. It is not argued that the LGU has the power to regulate
the operation of tricycles for hire and to grant the franchises for the
operation thereof. And yet, it is clarified in the case of LTO et.al. vs. the City
of Butuan9 that it is the Sangguniang Bayan/Sangguniang Panlalawigan that
has the power to issue said franchise. In the aforementioned case, it stated
thusly:

“It may not be amiss to state, nevertheless, that under Article 458 (a)[3-
VI] of the Local Government Code, the power of LGUs to regulate the
operation of tricycles and to grant franchises for the operation thereof is
still subject to the guidelines prescribed by the DOTC. In compliance
therewith, the Department of Transportation and Communications
("DOTC") issued "Guidelines to Implement the Devolution of LTFRBs
Franchising Authority over Tricycles-For-Hire to Local Government
units pursuant to the Local Government Code." Pertinent provisions of
the guidelines state:

"In lieu of the Land Transportation Franchising and Regulatory Board

(LTFRB) in the DOTC, the Sangguniang Bayan/Sangguniang
Panglungsod (SB/SP) shall perform the following:

"(a) ISSUE, amend, revise, renew, suspend, or cancel MTOP (Motorized

Tricycle Operators Permit) and prescribe the appropriate terms and
conditions therefor;” (emphasis supplied)

8
Valenzuela v. Court of Appeals, 323 Phil. 374, 389 (1996).
9
G.R. No. 131512, January 20, 2000
 The operation of a public utility vehicle is strictly regulated because it
is imbued with paramount public interest. A simple registration of the tricycle
as a business operation as proven by the issued Mayor’s Permit is not
enough to legitimize its operation as a public utility vehicle. Clearly, not only
did Galon violate a traffic regulation when he irresponsibly made a wrong-U-
turn, he also violated a very vital traffic law, wantonly and recklessly allowing
himself to be put at risk.

The prosecution also puts emphasis on the accused having left the
incident without attending to Galon. On that note, R.A. 4136, or the Land
Transportation and Traffic Code was clear on that when it stipulated as one
of the exemptions for one to be allowed to leave the incident is when one will
report to the nearest officer of the law. Article V, Sec. 55 of the said law
provides that:

Section 55. Duty of driver in case of accident. - In the event that any

accident should occur as a result of the operation of a motor vehicle
upon a highway, the driver present, shall show his driver's license, give
his true name and address and also the true name and address of the
owner of the motor vehicle.

No driver of a motor vehicle concerned in a vehicular accident shall

leave the scene of the accident without aiding the victim, except under
any of the following circumstances:

1. If he is in imminent danger of being seriously harmed by any person

or persons by reason of the accident;

2. IF HE REPORTS THE ACCIDENT TO THE NEAREST

OFFICER OF THE LAW; or

3. If he has to summon a physician or nurse to aid the victim.

  It is undisputed that it was the accused himself who went to the

nearest police authorities to report the incident. Hence, his leaving the
incident should not impose any liability upon him.

As for the issue on the alleged liability of the employer PHILASIA,

Article 218010 of the Civil Code provides for the liability of the employer in
case it was established that an accident resulted from the negligence of the

10
New Civil Code
employee. The presumption that they are negligent flows from the
negligence of their employee. That presumption, however, is only juris
tantum, not juris et de jure11. Their only possible defense is that they
exercised all the diligence of a good father of a family to prevent the
damage. The diligence of a good father referred to means the
diligence in the selection and supervision of employees12.

Article 2180 reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is
responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees

and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage.

This kind of diligence has been extensively proven and established by

the accused through the testimonies of the PhilAsia drivers and Human
Resource staff presented as witnesses. Aside from the strict process of
selection, all vehicles of the company was also installed with a GPS
monitoring system which tracks the driving route and speed of all PhilAsia
vehicles. Accused was also able to prove that PhilAsia has even imposed
strict sanctions on any employee who violated traffic rules and speed limits.

Overall, it cannot be gainsaid that the prosecution failed to prove the

guilt of the accused beyond reasonable doubt. It is basic in trying criminal
cases such as this instant case that PROSECUTION MUST RELY ON ITS
STRENGTH AND NOT ON THE ABSENCE OR WEAKNESS OF THE EVIDENCE OF
THE ACCUSED. The prosecution is burdened to prove guilt of the accused
beyond reasonable doubt. By reasonable doubt is not meant that which
of possibility may arise but it is that doubt engendered by an
11
Ramos vs. Pepsi-Cola Bottling Go., 19 SCRA 289 [1967], citing Bahia vs. Litonjua, 30 Phil. 624 [1915].
12
George McKee and Araceli Koh Mckee vs. IAC, Jaime Tayag and Rosalinda Manalo, G.R. No. L-68102 and G.R.
No. L-68103, July 6, 1992
investigation of the whole proof and an inability, after such
investigation, to let the mind rest easy upon certainty of guilt. In
fact, it has been ruled that if the evidence is susceptible of two
interpretations, one consistent with the innocence of the accused and the
other consistent with his guilt, the accused must be acquitted. THE
OVERRIDING CONSIDERATION IS NOT WHETHER THE COUR DOUBTS
THE INNOCENCE OF THE ACCUSED BUT WHETHER IT ENTERTAINS A
REASONABLE DOUBT OF HIS GUILT13. The testimony of the witnesses of
the prosecution and its evidence is utterly insufficient on which to anchor a
judgment of conviction of the accused. That said, the accused only deserves
acquittal for this instant case.

PRAYER
Wherefore premises considered, it is the earnest prayer of the
defense before the Honorable Court that judgment be rendered ACQUITTING
the accused for the reason that the prosecution failed to establish his guilt
beyond reasonable doubt. Other reliefs and remedies as may be just and
equitable under the premises are likewise prayed for.

This 1st day of October, 2018, at Tubod, Lanao del Norte.

ATTY. GLENICE JOY D. JORNALES

Counsel for the Accused
Roll No. 67533
PTR No.3520202; 02/07/2018
IBP No. 023755; 01/10/2018
Agopitac-Caerlang-Jornales Law Office
Poblacion, Tubod, Lanao del Norte

Copy furnished:
Office of the Provincial Prosecutor
Tubod, Lanao del Norte

13
People vs. Enrique Cañete, G.R. No. 128321, March 11, 2004