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REPUBLIC OF THE PHILIPPINES FOURTH JUDICIAL REGION REGIONAL TRIAL COURT Branch 4 Batangas City

PEOPLE OF THE PHILIPPINES, Plaintiff,

- versus -

CRIMINAL CASE NO. 12345-H FOR: Violation of R.A. No. 6539 (Anti-Carnapping Act)

ROMULO TAKAD, Accused. x-------------------------------------------x

MEMORANDUM
The prosecution, through the undersigned Public Prosecutor, charges Romulo Takad with crime of violation of RA 6539 (Anti-Carnapping Act) through the undersigned counsel, to this Honorable Court, most respectfully states that: PREFATORY STATEMENT
Intent to gain or animus lucrandi is an internal act, presumed from the unlawful taking of the motor vehicle. Actual gain is irrelevant as the important consideration is the intent to gain. The term "gain" is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed. Thus, the mere use of the thing which was taken without the owners consent constitutes gain 1 People of the Philippines vs.Luisito D. Bustinera, G.R. No.148233, June 8,

2004

STATEMENT OF THE FACTS Sometime in May 2003, Bayan Development Corporation or BDC extended loan to Sakbayan members and the members of Tricycle Operators and Drivers Association or TODA, wherein Ma. Teresa Lacsamana was a member. It was a group loan of P480,000 and Ms. Lacsamanas share was P80,000 which was secured by a promissory note, chattel mortgage and the Kasunduan in case of default in payment. The tricycle was then released to Ms. Lacsamana with a payment period of thirty (30) months. On August 2003, Ms. Lacsamana defaulted on her payment, thereby as agreed upon in the Kasunduan, on October 2, 2003, BDC pulled out the tricycle from the former which was then kept under the management of the treasurer of the group for 15 days. Ms. Lacsama and BDC agreed that if the tricycle will not be redeemed until October 17, 2003, it will permanently be repossessed by BDC. It was only October 22, 2003 when Ms. Lacsamana together with his livein partner Mr. Romulo Takad went to BDCs office to pay the outstanding balance of the loan. However, according to Ms. Zenny G. Aguirre, the account officer of BDC, her boss no longer allowed acceptance of payment and release of the tricycle for the reason that they get reports that the tricycle might be dismantled and its parts sold especially that the accused had a reputation for dismantling tricycles in Palatiw. When they were not able to redeem the tricycle, Mr. Takad said in threatening words Wag na wag kong makikita ang tricycle sa Pasig. The tricycle was then kept by BDC until November 20, 2003, when they gave it to Mr. Carlos Parlade, the new assignee. But on the morning of November 21, 2003, Ms. Aguirre received a call from Mr. Parlade that at 1:00 oclock in the morning, he saw that the tricycle was being driven away by someone, whom he later identified as Romulo Takad. The prosecution presented as witnesses Carlos Parlade and Mario S. Mankas. After the presentation of testimonial evidence, the prosecution formally offered its exhibits and thereafter rested its case.

ISSUES OF THE CASE First, whether or not, BDC is the rightful and legal owner of the tricycle. Second, whether or not, Romulo Takad committed the crime of carnapping.

ARGUMENTS AND DISCUSSION Whether or not BDC is the Rightful/legal owner of the tricycle. It should be emphasized that when Theresa Lacsamana loaned from BDC, she agreed and signed in a Kasunduan which detailed her obligations as a borrower and the consequence if ever she default on payment. She also voluntarily agreed and signed the chattel mortgage of the motor vehicle to serve as the collateral for the loan and likewise, she executed a promissory note indicating her agreement to pay the loan and follow other conditions as stipulated in the Kasunduan. A legal dictionary defines a chattel mortgage as a loan taken out for what is called movable property with the property itself used as a promise to repay the loan. The owner or buyer of the property gives ownership of the property to the lender until such time as the loan is paid in full and the chattel mortgage is canceled. WEBSTER Disctionary states that under a chattel mortgage, the purchaser borrows funds for the purchase of movable personal property (the chattel) from the lender. The lender then secures the loan with a mortgage over the chattel. Legal ownership of the chattel is transferred to the purchaser at the time of purchase, and the mortgage is removed since the loan has been repaid. In the article of Romulo Mabanta Buenaventura Sayoc in Lex Mundi Publication under enforceability of a Chattel Mortgage, provisions entitling the mortgagee to take immediate possession of the chattel upon default are usually included in the deed.

Generally, this can be done without court proceedings. However, if the mortgagor or person in possession of the chattel refuses to surrender possession, replevin proceedings (i.e. proceedings to obtain possession of personal property) must be instituted in the judicial courts. This negates the point of the defense prosecutor during his cross examination to prosecution witness Ms. Aguirre, as follows: xxx Q: Did you get a court order transferring ownership of the tricycle from Ms.Lacsamana to BDC before you took the tricycle? A: No, Sir. Q: You took it from her because she could not pay her debt, is that right? A: Yes Sir. Q: It is your understanding that when did not pay her debt, the ownership of the tricycle is automatically transferred to BDC, is that right? A. No Sir, since she had not paid her obligation, BDC still owns the tricycle. Q: 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? A: Yes Sir. Q: Who is the owner of the tricycle? A: Ma. Teresa Lacsamana is the owner of the tricycle. But the money she used in buying the tricycle was the money of BDC. Q: In other words, as you understood it, if she did not pay the loan, the BDC becomes the owner of the tricycle, correct? A: Yes Sir. Q: 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? A: Yes Sir. xxx

The prosecution would like to answer what we believe is a prejudicial question, the resolution of which shall determine if there is really a crime of carnapping committed since the accused, Romulo Takad is considered as the coowner of the tricycle carnapped being a common-law husband of Ms. Theresa Lacsamana. The defense clearly implies that since there is no court order for transfer of ownership after the default of payment, still it is Ms. Lacsamana who is the rightful owner of the tricycle. But as clearly explained in the definitions of chattel mortgage, the owner, or buyer of the property gives ownership of the property to the lender until such time as the loan is paid in full and the chattel mortgage is canceled. Therefore, BDC is the now rightful owner of the chattel or tricycle since Ms. Lacsamana breached their mortgage agreement by the default in payment. Likewise, a written agreement or Kasunduan has its own enforceability if it is signed by the parties involved and validly notarized by a notary public. Under Rule 130, Sec. 7 of the Rules of Court:
Sec. 7. Evidence of written agreements . When the terms of an agreement have been reduced to writing, it is to be considered as containing all such terms, and, therefore, there can be, between the parties and their successors in interest. x x x

To be valid, a secured transaction must contain an express agreement between the debtor and the secured party. The agreement must be in writing, must be signed by both parties, must describe the collateral, and must contain language indicating a grant of a security interest to the creditor. Furthermore, something of value must be given by one party to the other party. This can be a binding commitment to extend credit, the satisfaction of an already existing claim, the delivery and acceptance of goods under a contract, or any other exchange of value sufficient to create a contract. Once these formalities have been completed, the security associated with the principal agreement is said to attach. Attachment simply means that the security side of the agreement is complete and legally enforceable.
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Paragraph 15.1 of the Kasunduan executed between the lender BDC and borrower Ms. Teresa Lacsamana states that:

Romulo Mabanta Buenaventura Sayoc, Lex Mundi Publications

15.1 Kapag ang kasapi ay hindi makabigay ng tatlong karampatang arawang hulog-bayad sa loob ng isang kinsenas o napaloob sa isang tseke sa BDC, ang kanyang tricycle ay hahatakin ng SAMAHAN kasama ang linya ng TODA at/o prangkisa at ito pangangasiwaan ng SAMAHAN upang ang arawang kita nito at tuwirang gagamitin ng SAMAHAN para sa darating na arawang hulog-bayad ng kasaping nagkasala.

Also, the mere fact that the borrower did not refuse in the pulling out of the mortgaged motor vehicle when they defaulted in payment, is an express admission that they recognize the Kasunduan, Chattel Mortgage and the promissory note that they executed. And with their admission during cross examination that they were actually the ones who brought the said tricycle to SAMAHAN Treasurer, is a clear indication of their voluntary surrender of the chattel without the need for the writ of replevin or court order. Whether or not Romulo Takad committed the crime of carnapping. Since BDC is the legal owner of the Kawasaki motorcycle with sidecar, colored black, bearing plate No. TU 9952, it is therefore concluded that Romulo Takad committed the crime of carnapping when he allegedly stole and drive-away without consent of the owner the above mentioned tricycle, a crime in violation of R.A. 6539 (Anti-Carnapping Act) which provides that:
Section 2. Definition of terms. The terms "carnapping", "motor vehicle", "defacing or tampering with", "repainting", "body-building", "remodeling", "dismantling", and "overhauling", as used in this Act, shall be understood, respectively, to mean "Carnapping" is 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.

"Motor vehicle" is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, streetsweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle shall be classified as separate motor vehicle with no power rating.

In the case at bar, the information alleges that the accused, with intent to gain, took the tricycle owned by BCD without the latters consent. Thus, the indictment alleges every element of the crime of carnapping, and the prosecution proved the same based on the elements of carnapping as follows:
Carnapping elements: Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things. 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 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.
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The accused Romulo Takad has the only direct motive to steal the motorcycle as evidenced by his threatening words wag na wag kong makikita yang tricycle na yan sa may Pasig when he and her live-in partner Teresa Lacsamana tried to redeem the said vehicle. His alibi during the trial proceeding that those words were uttered to mean that his feelings would be hurt when he sees the tricycle in Pasig is unacceptable, considering the manner it was said and the emphasis Huwag na Huwag which clearly infers to threat. The incident of carnapping happened exactly within Pasig and the proximate distance of the place where the tricycle was carnapped and where the accused lives makes it possible for accused Takad to commit. Also, he was positively identified by the two witnesses Carlos P. Parlade and Mario Mankas, who both have no motive at all against the accused. They would not dare to risk their lives or safety if they arent sure of the identity of the accused. A detailed scrutiny of the evidence presented by the prosecution would reveal that the guilt of accused Romulo Takad is beyond reasonable doubt. The primary witness, Parlade expressed that he was able to catch Takad while he was still pushing the tricycle away and because of the light from post and the short distance, he was able to clearly see the face of Takad. While witness Mankas was also able to clearly identify the accused from his place.
People vs. Venancio Roxas y Arguelles, G.R. No. 172604, August 17, 2010

On the point that there are some differences between the sworn statement and on-court testimony of the prosecution witnesses, it is but the actual on-court testimonials that should be given greater weight. During the defendants presentation of witness, the defense did not present any evidence to prove that in fact, Takad was at home during the time the incident happened other than the testimonial of the latter, to wit: xxx Q: Do you remember where you were on the early morning of November 21, 2003? A: I was at the house sleeping. Q: Who else were in your house in the morning of November 21, 2003? A: I was alone, sir. xxx CONCLUSION From the foregoing discussions on the first issue at hand, it is evident that BDC is the rightful and legal owner of the Kawasaki motorcycle with sidecar, color black, bearing plate No. TU 9952. The Chattel Mortgage, Kasunduan and the Promisory Note being all binding and legally enforceable not only transfer ownership of the tricycle to BDC but more so, gives it the right to repossess the said motor vehicle when its debtor, Teresa Lacsamana defaulted in payment. Also, it was clearly implied in the defendants testimony that they recognize their obligations stipulated in the Chattel Mortgage Agreement, Kasunduan and the Promisory Note when they personally delivered the tricycle to the Treasurer of the Samahan. On the second issue, Romulo Takad commited the crime of carnapping of the above mentioned tricycle belonging to lender BDC beyond reasonable doubt. He was the only person with direct motive and intent to steal the tricycle, as evidenced by his threatening words to Ms. Aguirre. Also, he was positively

identified by witnesses Carlos P. Parlade and Mario S. Mankas, who both have no motive against Takad and who would not have risked their lives and their safety by merely accusing a person whom they would believe as innocent. The basic elements of carnapping were present when the accused committed the crime and therefore, Takad should be imposed of the following penalty as provided in R.A. 6359:
Section 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things

PRAYER WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that the foregoing Memorandum for complainant Bayan Development Corporation (BDC) be NOTED AND CONSIDERED and that a Decision be rendered CONVICTING accused Romulo Takad. Other reliefs just and equitable under the premises are likewise prayed for. Batangas City, 28 September 2009. SHYRELL CLEMINO-ABELO Counsel for the Plaintiff (under IBP Legal Aid) Arieta Street, Batangas City PTR No. 1223730/Batangas City/01-07-09 IBP No. 747475/Batangas City/12-18-08/CY 09 Roll of Attorneys No. 46776 MCLE Compliance No. III-0002369; 02.18.09 Copy Furnished: Office of the City Prosecutor Batangas City
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