Republic of the Philippines

th
5 MUNICIPAL CICUIT TRIAL COURT OF KOLAMBUGAN-TANGKAL
12th 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. PEOPLE1, 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 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.

1
Gonzaga vs. People, G.R. No. 195671, January 21, 2015)
2
Article 2179, New Civil Code
 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

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 road4. 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

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].
4
Wikipedia, SKID MARK.
relatively great5. 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 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
5
20 Am. Jur. 600
6
People vs. Enrique Cañete, G.R. No. 128321, March 11, 2004
7
Article 2185, NCC
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
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 negligence 8.

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)

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.

8
Valenzuela v. Court of Appeals, 323 Phil. 374, 389 (1996).
9
G.R. No. 131512, January 20, 2000
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 2180 10 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 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.

10
New Civil Code
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
 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 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.

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