CREDIBILITY OF WITNESSES Inconsistencies. Inconsistencies. Inconsistencies.

The defense merely centered their arguments in the inconsistencies between the sworn statements and testimonies of the witnesses. These arguments raised by the defense seemed superficial rather substantive, and illogical rather rational. The prosecution witnesses have positively, clearly and convincingly identified the accused Romulo Takad as the one who took the tricycle. Under Rule 113, Sec. 2 on the RULES OF EVIDENCE, it is stated that in a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. The Supreme Court held in People v. Sanchez:

We advert to that all-too familiar rule that discrepancies between sworn statements and testimonies made at the witness stand do not necessarily discredit the witnesses. Sworn statement/affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Testimonies given during trials are much more exact and elaborate. Thus, testimonial evidence carries more weight than sworn statements/affidavits. The inconsistencies in the testimonies of the witnesses do not eradicate the moral certainty which the witnesses have ascertained during the court proceeding. As also held in Sayoc vs People (G.R. No. 157723, April 30, 2009), ...weak denial, especially when uncorroborated, cannot overcome the positive identification of them by the prosecution witnesses. As between the positive declarations of the prosecution witnesses and the negative statements of the accused, the former deserves more credence and weight. When the defense presented the accused as one of its witnesses, the alibi raised by the accused that he was sleeping in their house in the morning of November 21, 2003 when the crime of carnapping happened, must not be given weight. As clearly stated in the Larranaga case (G.R. Nos 138874-75), the requirements of time and place must be established by clear and convincing evidence that is, it was physically impossible to be at the place of the crime. Takad may physically be at the place of the crime as both the new possessor and the accused lives in Pasig City wherein transportation is available 24 hours daily.

The testimonies of the prosecution witnesses were straightforward, cohesive, positive, and credible. Besides there is no showing that the prosecution witnesses had to falsely testify against the accused. The prosecution has proven the unmilitated and undoubted certainty of the identity of Romulo Takad as culprit as substantially and positively established by the prosecutions credible witnesses. The accused Romulo Takad must be convicted of carnapping.

QUESTIONS ON CREDIBILITY OF WITNESSES:

1. Are you aware of Rule 113, Sec. 2 on the RULES OF EVIDENCE?

2. Do you know that inconsistencies between sworn statements and testimonies made at the witness stand do not necessarily discredit the witnesses?
3. Isnt it that it has been held that the person who was a witness in a crime cannot

be expected to recount the details with mathematical precision? 4. Was it that the accused was positively identified by Parlade and Mankas in open court? 5. Did you know that the place where the crime was comitted was well-lighted? 6. Did the witnesses have any motive to testify with malice against the accused? 7. Have you established any proof? 8. Are you claiming that as a member of the Maybunga Security Force, Parlade must know all the rules to give a good description of an accused? As a law practitioner, do you know everything about the law? 9. Isnt it that Parlade does not personally know the accused? 10. Would you agree with me that it is physically possible for the accused to be in Pasig when the crime happened given the 24-hour availability of transportation?

INTENT TO GAIN Intent to gain, the second element of the crime of carnapping, is present on the part of accused Takad. In fact, even the defense does not dispute the existence of this element in the commission of the crime. Intent to gain is presumed from the unlawful taking of personal property, motor vehicle in the case of carnapping. Being an internal act, it cannot be established by direct evidence, except in case of confession by the accused. Hence, it must be deduced from the circumstances surrounding the commission of the offense. The general rule is that unlawful taking of a motor vehicle belonging to another involves intent to gain on the part of the offender. In the case at bar, it is evident that the second element of the crime of carnapping is present even without the confession of the accused. There is intent to gain on the part of the accused Takad as strongly established by the statement that he uttered after BDC refused redemption of the tricycle. Accused Takad said, Wag na wag kong makikita ang tricycle na yan sa Pasig. This remark by accused in a form of threat supports the presence of intent to gain. Human experience dictates that once a person loses a property he uses to earn for a living, such person would not simply and only feel sad. Common understanding implies that losing a property as important as that of a source of living would cause aggravation in the feelings of that person. The defense cannot simply imply that such utterance was a plead to BDC because it was going to hurt them if they will see the tricycle in Pasig considering the time and sweat looking after the tricycle and it would pain them so much to see it there. This prosecution firmly believes that such reasoning by the accused is irrational and outside the logic of a normal thinking person. Given the time and sweat that they have raised, being hurt would not be the only feeling a rational being would feel. Without a doubt, such person will have the enthusiasm to take back or reclaim his property. And such enthusiasm or intent to get back was signaled by the threat uttered by the accused. As to the claim that he has no intention to carnap the said vehicle because, in the first place, he considers it as his property, therefore no actual gain can be attributed if he carnaps the motor vehicle, the prosecution clarifies the concept that 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 owner's consent constitutes gain. Undoubtedly, Romulo Takad has the motive to steal the tricycle from its new assignee. It is apparent that the accused has the intent to gain in the effect that he unlawfully took into his possession the subject motor vehicle. The test to determine the

value of the testimony of a witness is whether or not such is in conformity with human knowledge and consistent with the experience of mankind. The prosecution stands on the position that the remark of Takad clearly showed his intent to gain in the crime of carnapping.

QUESTIONS ON INTENT TO GAIN: 1. Did it not hurt the accused when the subject motor vehicle was taken from your possession?
2. Are you in the position that when accused said wag na wag kong makikita yan sa

Pasig he was just at the height of his anger and suddenly these words just came out? 3. Do you agree with me that the statement that he could also be a form of threat which implies the intent or desire to get it back upon seeing it? 4. Do you know the difference between actual gain and intent to gain? 5. So if you utter the words, 'wag ko lang makikita yan..', it is more of a threat and is contrary to human experience of pleasing someone, right?
6. Do you agree that the term gain used also includes the benefit that maybe

derived or expected from the act which is performed? 7. Do you know the difference between actual gain and intent to gain?
8. Do you agree that the term gain used also includes the benefit that maybe

derived or expected from the act which is performed?

WHO IS THE OWNER OF THE TRICYCLE? We do not dispute the fact that Maria Teresa Lacsamana is the owner of the tricycle. In actual fact, we boast about it. We make it known to the defense that we support their assertion and do not belie any of it. However, the accused in this case is Romulo Takad and not Lacsamana. Thus, the former can be held criminally liable for carnapping, absent the issue on co-ownership between them. Any argument of the defense stating that Lacsamana is the owner of the tricycle should be rendered superfluous and should be eliminated. The defendants relied solely on the defense that since Takad and Lacsamana are live-in partners, there is co-ownership that exists between them and as such Takad cannot be held liable of carnapping because the tricycle also belongs to him. The defense specifically invokes Article 147 par. 2 of the New Civil Code. The prosecution commends them for such defense but it seems like they have negligently disregarded the indispensable requirement of such article before such can operate. The article specifically requires that there should be no legal impediment to marry between the common law couples. Such fact is nowhere to be found in the facts of the case. It appears that the defense made the presumption themselves that there is no legal impediment between them to marry since the facts of the case are silent about it. Such presumption is flawed because we are not talking of academic disputes where such presumptions are allowed but we are talking of a real life case where every requirement of the law must be met and supported by real life events. The prosecution would like to ask the defense, is it not that Article 148 of the New Civil Code can also operate with the given facts of the case? But isn't it that the two articles are mutually exclusive and cannot operate at the same time? How did the defense established whether Article 147 or 148 will operate? The answer seems to be non-existent if we are to re-examine the facts. In People vs Tan (GR. No. 135904, January 21, 2000), the court acknowledged that a careful comparison of RA No. 6539 with the crimes of robbery and theft readily reveals that they have common features and characteristics, particularly their elements. The only difference is the object of the crime, personal property in the latter and motor vehicle in carnapping. Therefore, the analogy of Section 2, par. 2 of Republic Act No. 6539 which defines carnapping gives us the understanding that just like in the crime of robbery, it uses the phrase belonging to another. This implies that the property taken does not belong to the offender. The person from whom the personal property is taken need not be the owner. Possession of the property is sufficient. Ownership is not necessary. Applying this in the case, since the motor vehicle was in the possession of the new assignee, Carlos Parlade, Takad, if he is really considered as a co-owner, is immaterial because the mere fact that the tricycle was taken from the possession of

Parlade, without his consent, and with intent to gain on the part of the accused is sufficient to affirm his conviction. For the sake of argument that Takad and Lacsamana can be considered as coowners of the tricycle, the incidents of ownership such as, but not limited to, the right to alienate, assign, administer, dispose or encumber are no longer excerciseable by neither Lacsamana nor Takad. It is because of the simple and obvious reason that in Chattel Mortgage Law, the borrowers failure to pay the loan on a timely basis vests such incidents of ownership to the mortgagee, which in this case is BDC, otherwise, it would make the aim of such law illusory. What remains to Lacsamana and Takad, assuming that co-ownership is even a plausible argument, is only ownership by virtue of paper. Such procedure of vesting the incidents of ownership from the mortgagor to the mortgagee has been a long-time bank and financial institution practice. Based on the arguments above, we have established clearly that, whether or not there is co-ownership between Takad and Lacsamana, the criminal liability of Takad is indispensable. The defense has failed significantly to dispute, in fact and in law, the preference of BDC over the common-law couple due to the substantive ownership vested with the former. Wherefore we pray that the issue on ownership be resolved in favor of the prosecution.

QUESTIONS 1. Does the prosecution belie the ownership of Maria Teresa Lacsamana of the tricycle? 2. Are you aware that robbery, theft and carnapping have common features, characteristics and almost the same elements? 3. Did you know that the phrase belonging to another implies that the person from whom the personal property is taken need not be the owner for possession of the property is sufficient, hence ownership is not necessary? 4. Do you agree that the motor vehicle was in the possession of Parlade?
5. Are you aware of the requirement of Article 147 and 148 of the New Civil Code

before it can operate? 6. Are you sure that Article 147 can apply in this case? 7. Would you agree with us that the requirements of the two articles are mutually exclusive and thus cannot operate at the same time? 8. Is there anything in the case facts which states whether or not there's legal impediment to marry between Takad and Lacsamana? 9. So you made the presumption that since the case facts is silent about such issue that there's no legal impediment at all between them?