Diorella Velasquez

Republic of the PhilippinesRegional Trial CourtNational Capital Judicial RegionPasig City

People of the philippines,Plaintiff,

Criminal Case No. 12345-H-versus-Violation of R.A. 6539(Anti-Carnapping Act)Romulo takad, Accused.

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DEFENDANTS MEMORANDUM

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

The Case

Plaintiff, Romulo filed this motion to dismiss the case, claiming that the witness testimonies were not credible in establishing that he was the one who stole Carlos Parlades Tricycle on November 21st.

The Facts

Romulo Takads live-in partner, Theresa Lacsamana obtained a tricycle loan worth 80,000 pesos with Bayan Development Corporation (BDC), the loan was extended by Zenaida Aguirre, a BDC employee. The official receipt and car registration were registered under Theresa Lacsamana. The tricycle was pulled out due to non-payment on 2003, the pull-out was part of the KASUNDUAN that the parties signed. Theresa tried to reclaim the tricycle by offering to pay the 14,000 pesos arrears, but Aguirre refused to accept the payment and claimed Takad threatened by saying huwag kong makikita yang tricycle sa Pasig, Takad denied threatening Aguirre. Takads version was that he said that he did not wish to see the Tricycle in Pasig, because it would break his heart. The tricycle was given to Carlos Parlade, the new assignee. On November 21, 2003 at around 1am Carlos Parlade saw someone driving away his tricycle , he would later identity the person who took the tricycle as Takad, Mario another witness also identified Takad, as the person who stole the tricycle. On Cross examination the description provided by Carlos and Mario did not match Takads built. Carlos described the person as Malapad but on cross examination Takad who only weighted 120 pounds is described as Manipis. It was also confirmed that both witnesses were able to identify Takad because Takad was pointed out by the Police Investigators. Takad denied the accusations and said he was at home sleeping on the night of the incident.

The Issue

1. Whether or not the witnesss description of the accused as Takad should be given credence.

2. Whether or not BDC is the rightful owner of the Tricycle.

3. Whether or not Takad is guilty of violating RA 6539 or the Anti-Carnapping law.

Arguments.

1. Romulo Takad did not steal the Tricycle, Takad was at home sleeping during the incident and the description that Carlos and Mario, the 2 witnesses provided did not match Takads Physique. Carlos was 20 meters away from the Tricycle when he saw someone driving away the tricycle, this incident happened at 1am so it was impossible for him to get a clear view of the victims face. The other witness Mario said that he was looking down because he was washing his hands when the speeding tricycle past by, Mario claims in that short instance he managed to look up and saw Takad, he said he knew it was Takad because the way his backed look. Mario never got a clear view of the Carnapper. He just had a glimpse of the of the person driving the speeding tricycle at 1am and there was insufficient illumination for him to clearly identify the carnapper. The Police Investigators had Takad singled out to be identified by the witnesses. Takad was not introduced to the witnesses in row with other suspects. Carlo and Mario identified Takad, because the Police led them to believe that the man they saw that night was Takad.

2. BDC is not the rightful owner of the Tricycle. Theresa Lacsama, Romulo Takads live-in partner is the owner of the tricycle. As evidenced by the transcript of stenographic notes during the Cross examination of Zenaida Aguirre.

ATTY. CRUZ: Did you get a court order transferring ownership of the tricycle from Ms. Lacsamana to BCD before you took the tricycle?

AGUIRRE: No, sir.

ATTY. CRUZ: you took it from her because she could not pay her debt, is that right?

AGUIRRE: Yes, sir.

ATTY. CRUZ: Did you make an effort to buy the tricycle from Ms. Lacsamana before it was stolen?

AGUIRRE: No, sir.

ATTY. CRUZ: It is your understanding that when she did not pay her debt , the ownership of the tricycle is automatically transferred to BDC, is that right?

AGUIRRE: No, sir, since she had not paid her obligation, BDC still owns the tricycle

ATTY. CRUZ: Let us make it clear, you said that BDC loaned Ms. Lacsamana the money, which she used to buy the tricycle; it was not BDC that bought the tricycle , it was Ms. Lacsamana who bought the tricycle?

AGUIRRE: Yes, sir.

ATTY. CRUZ: Who is the owner of the tricycle?

AGUIRRE: Ma. Theresa Lacsamana is the owner of the tricycle. But the money she used in buying the tricycle was the money of BDC.

ATTY. CRUZ: In other words, as you understood it , if she did not pay the loan BDC becomes the owner of the tricycle, correct?

AGUIRRE: Yes, sir.

ATTY. CRUZ: Because of your understanding, you did not bother to file any action in court to transfer ownership of the tricycle from Lacsamana to BDC is that right?AGUIRRE: Yes, sir.Theresa Lacsama is still the rightful owner of the tricycle, the loan was obtained by BDC, but Lacsama is still the rightful owner. The Kasunduan which the parties signed stated that.15.1 Kapag ang isang kasapi ay hindi makabigay ng tatlong krampatang arawang hulog-bayad sa loob ng isang kinsenas o napapaloob sa isang tseke sa BDC, ang kanyang tricycle ay hahatakin ng SAMAHAN kasama ang linya (TODA) at/o prangkisa at ito ay pangangasiwaan ng SAMAHAN upang ang arawang kita nito ay tuwirang gagamitan 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 pagmamay-ari hanggat hindi pa lubusang nababayaran ang utang at pananagutan sa BDC.

The Kasunduan clearly stated that in case of non-payment the tricycle will be pulled by BDC, and that it will remain in BDCs possession until the arrears are paid. The Kasunduan did not state that the ownership of the tricycle will be transferred to BDC due to non-payment. This clearly shows that the ownership of the tricycle in question still belonged to Lacsamana.

3. Assuming that it was Takad that stole the Tricycle he cannot be found guilty of carnapping. The elements of carnapping as defined and penalized under the Anti-Carnapping Act of 1972 are the following:A. That there is an actual taking of the vehicle;B. That the vehicle belongs to a person other than the offender himself;C. 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; and D. That the offender intends to gain from the taking of the vehicle.Even if we were to give credence to the testimony of the 2 witnesses that it was Takad that stole the tricycle, Takad is not guilty of carnapping. An essential element of carnapping is the taking of the vehicle without the consent of the owner and with intent to gain. The tricycle is owned by Theresa Lacsamana, Takads live in partner and not BDC nor Carlos Parlade.

Wherefore, Accused Romulo Takad respectfully prays that the Court to render judgement:

1. Dismissing the case against defendant for lack of merit.

Pasig City for ManilaJune 15, 2014DIORELLA VELASQUEZCounsel for PetitionerSuite 123 MDC 100 Bldg.Libis, Quezon CityAttorney Roll 99999IBP No. 111111 10-10-10PTR No. 2222222 01-02-2009MCLE Compliance III-1234Email:dior_velasquez@yahoo.com

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Atty. Juan Dela CruzManila St., Ermita, Manila

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