Republic of the Philippines

MUNICIPAL TRIAL COURT IN CITIES

7th Judicial Region
BRANCH 76
Cebu City, Cebu

PEOPLE OF THE PHILIPPINES, Criminal Case No. 0002

Complainant, For: Robbery with force
upon things in an
-versus- uninhabited place

NOELA ANTONIA P. LOGARTA,

JOANNAH P. PREDOG,
MICHELLE G.ABSIN and
BERMUNDA A. ELVIRA,
Accused.
x-------------------------------------/

MEMORANDUM
[TO SUPPORT THE DISMISSAL OF THE CASE]

THE UNDERSIGNED COUNSEL FOR THE DEFENDANTS,

unto this Honorable Court respectfully states, that:

PREFATORY STATEMENT
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 certainly. Moral certainly only is required, or that degree
of proof which produces conviction in an unprejudiced mind. - Weight and
Sufficiency of Evidence, Section 2 Rule 133 of the Rules of Court.
"It is better to liberate a guilty man than to unjustly keep in prison one
whose guilt has not been proved by the required quantum of evidence.-
People v. Esmaquilan, 255 SCRA 289 (1996).

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 STATEMENT OF FACTS
On June 30, 2016 at around 3:00 in the afternoon, the accused
NOELA ANTONIA P. LOGARTA, JOANNAH P. PREDOG, MICHELLE
G.ABSIN and BERMUNDA A. ELVIRA, went to the house of Accused Ms.
Logarta, to get her old computer monitors that the latter told Ms. Predog she
would be selling. Accused Ms. Absin and Ms. Elvira were there to check the
physical aspects of the computer monitors before deciding to continue with
the sale, they were contacted by Accused Ms. Predog
Upon reaching said house, when Accused Ms. Logarta was about to use
her keys to open the padlock of the gate, she noticed that the padlock was
already broken but was still hanged on the gate. She then decided to remove
the padlock and went inside. She told her co-accused to wait by the gate while
she went inside to get her old computer monitors. She entered the main door
with the use of her own keys and went to her old room. She then saw her old
computer monitors which was still placed where she had left them a year ago.
She then carried her old computer monitors and went outside the house to
show her co-accused of what she was selling.
While she was handing the other computer monitor to her co-accused
Ms. Predog, her father came. He asked them what they were doing. She just
responded that she did not want any trouble and was just getting her old
computer monitors. Accused Ms. Logarta then told her father that they were
going to leave in which her father answered in the affirmative.
They then immediately went to the house of Ms. Predog for she was the
one who was going to check if said old computer monitors were still
functional. At around 5:00 in the afternoon some policemen came and was
looking for Ms. Logarta. The accused were then suddenly apprehended
without being given a reason why they were arrested.
The accused where just shocked upon reaching the police station and
seeing that it was Ms. Logartas father, Mr. Logarta who was there and was
alleging that they broke into his house, without his permission, that they stole
said old computer monitors, and that it belonged to him.
Accused Ms. Logarta then gave her statement that it was her old
computer monitor and that said computer monitors were even given by her
father, herein complainant, and mother during her debut and birthday, a year
after. Furthermore, that they had nothing to do with the broken padlock since
it was already at that state when they arrived at the house. And that she had
her own set of keys to enter to their old house.
Accused believes that this case was filed by her father, herein
complainant, to spite her. This is because she was his beloved daughter, he
even calls her his Princess. However, accused Ms. Logarta decided that
when she was already old enough and had finished her studies, she would
want to venture into the real world and learn to fend for herself. She thought
her father would understand what she has decided to achieve by herself.
However, to her dismay, her father got mad when she told her of her plans.

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This started the rift between their relationship. She then proceeded with her
plan of leaving the house and fending for herself. She would try contacting
her father but his resolve was still unmoved. He wanted his daughter to come
back and live with them and work with him.

STATEMENT OF THE CASE

On August 16, 2016 the information was filed with this Honorable
Court as follows:
INFORMATION
The undersigned Associate Prosecution Attorney II
accuses Noela Antonia P. Logarta, Joannah Rey P. Predog,
Michelle G. Absin, and Bermuda A. Elvira of the crime of
Robbery (with Force Upon Things) in an uninhabited place,
defined and penalized under Article 293, in relation to Section
Two - Article 300 and Article 302 of the Revised Penal Code,
committed as follows:
That on June 30, 2016 in the City of Cebu, Philippines,
and within the jurisdiction of the Honorable Court, accused
Noela Antonia P. Logarta, Joannah Rey P. Predog, Michelle G.
Absin, and Bermuda A. Elvira [hereinafter Accused], all four
female accused who were, by conspiring, conniving,
confederating and mutually helping with one another with
deliberate intent, and with intent to gain did then and there
wilfully, unlawfully and feloniously committed the aforesaid
crime by destroying the padlocked gate and broke entry into an
uninhabited house, and once inside, took away, without
knowledge and consent of the owner, two (2) computer monitors.
Moreover, when the Accused were admonished to stop with their
felonious acts, they instead hastily walked away bringing with
them the aforesaid monitors which has a total market value of
PHP 8,000.00.

CONTRARY TO LAW.

Cebu City, August 16, 2016

During the trial, the accused pleaded not guilty of said allegations.
There being no Robbery with force upon things in an uninhabited place that
was committed for said computer monitor were all owned by herein accused
Ms. Logarta, she had her own set of keys to enter their house and that they

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had nothing to do with the broken padlock as per stated in her Judicial
Affidavit marked as Exhibit 1, which states as follows:
Q20: How did you acquire these monitors?
A: Knowing that I am into computer and all that comes along
with it, my parents gave me a 15 inch computer monitor as a gift,
5 years ago, during my debut. While the second computer
monitor was 17 inches and was given as a birthday gift to me a
year later.

Q21: When you went in to get these monitors, did your co-
accused went inside with you?
A: No. I told them to wait by the gate.

Q22: How did you gain entrance to the house?

A: I have my own set of keys to our old house. I just removed
the padlock on the gate so I could enter my fathers house and
used my set of keys to enter the main door and my old rooms
door.

Q23: You said there was a padlock, what did you do with the
padlock so you could enter the house?
A: I just removed it, as I said. The padlock was already broken
when I went there. I just removed it from the gate, so I could
enter.

In conclusion, no crime was committed at all by the accused.

ISSUE
WHETHER OR NOT THRE WAS ROBBERY WITH FORCE UPON
THINGS IN AN UNINHABITED PLACE;

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 ARGUMENTS

NO ROBBERY WITH FORCE UPON THINGS IN AN

UNINHABITED PLACE WAS COMMITTED.

There was no taking of any

personal property belonging
to another

Article 293 of the Revised Penal Code provides for the elements when
Robbery is committed, it states that:
ROBBERY IN GENERAL
Art. 293. Who are guilty of robbery. Any person who, with
intent to gain, shall take any personal property belonging to
another, by means of violence or intimidation of any person, or
using force upon anything shall be guilty of robbery.

The requisites of Robbery as per stated in the above-provision are: (1)

There must be the taking of any personal property belonging to another; (2)
Intent to gain; (3) and By means of violence or intimidation of any person, or
using force upon anything.
Furthermore, in the case of Ramos y San Diego v. People, the Supreme
Court emphasised that the elements of robbery must be established an requires
proof beyond reasonable, which states in part:
The crime of robbery, in general, requires proof beyond
reasonable doubt of the following elements: (1) the accused
took personal property that belongs to another; (2) the
taking was unlawful; (3) the taking was done with intent to
gain; and (4) the taking was accomplished with the use of
violence against or intimidation of persons or by using force
upon things. xxx.

In the case at bar, said old computer monitors were personal properties
of Ms. Logarta, as per her testimony, she was selling them to add up to her
savings and since she was no loner using them for she had already a laptop.
The subject matter of the Robbery must be a personal property and such
property must belong to another. Having said so, Ms. Logarta can never rob
herself of her own personal belonging for she has every right to use or dispose
of it. Hence there is no robbery of ones own property.

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There was no intent to gain.

Taking of personal property under the claim of ownership negates the

element of intent to gain. This is further discussed by the case of Sy v.
Gutierrez, which states in part that:
Assuming that respondents indeed took said boxes
containing personal belongings, said properties were taken
under claim of ownership which negates the element of intent
to gain.
. . . Animus lucrandi or intent to gain is an internal
act which can be established through the overt acts of
the offender. The unlawful taking of another's property
gives rise to the presumption that the act was committed
with intent to gain. This presumption holds unless
special circumstances reveal a different intent on the
part of the perpetrator
Taking as an element of robbery means depriving the
offended party of ownership of the thing taken with the
character of permanency. The taking should not be under a
claim of ownership. Thus, one who takes the property openly
and avowedly under claim of title offered in good faith is not
guilty of robbery even though the claim of ownership is
untenable. The intent to gain cannot be established by direct
evidence being an internal act. It must, therefore, be deduced
from the circumstances surrounding the commission of the
offense.
In this case, it was shown that respondents believed in
good faith that they and the corporation own not only the subject
unit but also the properties found inside. If at all, they took them
openly and avowedly under that claim of ownership. This is
bolstered by the fact that at the time of the alleged incident,
petitioner had been staying in another unit because the electric
service in the 10th floor was disconnected. We quote with
approval the CA conclusion in their Amended Decision, thus:
Indeed, on second look, we note that what is involved here
is a dispute between and among members of a family
corporation, the Fortune Wealth Mansion Corporation.
[Petitioner] Lily Sy and [respondents] Merry, Jennifer, and
Glenn, all surnamed Sy, are the owners-incorporators of said
corporation, which owns and manages the Fortune Wealth
Mansion where [petitioner] allegedly resided and where the
crime of robbery was allegedly committed. As part-owners of
the entire building and of the articles allegedly stolen from the
10th floor of said building . . . the very same properties that are

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 involved between the same parties in a pending estate
proceeding, the [respondents] cannot, as co-owners, be
therefore charged with robbery. The fact of co-ownership
negates any intention to gain, as they cannot steal properties
which they claim to own.
Hence, even if we are to assume that private respondents
took the said personal properties from the 10th floor of the
Fortune Wealth Mansion, they cannot be charged with robbery
because again, the taking was made under a claim of ownership
. . .
Accused Ms. Logarta is the daughter of herein complainant. She was
given such old computer monitors during her debut and her birthday a year
later. Having said so, she owns such old computer monitors. She may not have
bought it with the use of her own money but it was given to her as a gift during
such joyous occasion which is not even against the law.
On the said day of taking, Accused Ms. Logarta was just getting her old
computer monitors under the claim of ownership. Therefore there was no
intent to gain.

There was no force upon things.

Article 302 of the Revised Penal Code provides for the elements when
Robbery with force upon things in an uninhabited place is committed, it states
in part:
Section Two. Robbery by the use of force upon things
xxx
Art. 302. Robbery is an uninhabited place or in a private
building. Any robbery committed in an uninhabited place or
in a building other than those mentioned in the first paragraph
of Article 299, if the value of the property taken exceeds 250
pesos, shall be punished by prision correccional if any of the
following circumstances is present:

1. If the entrance has been effected through any

opening not intended for entrance or egress.
2. If any wall, roof, flour or outside door or
window has been broken.
3. If the entrance has been effected through
the use of false keys, picklocks or other similar
tools.

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 4. If any dorm, wardrobe, chest or by sealed or
closed furniture or receptacle has been broken.
5. If any closed or sealed receptacle, as
mentioned in the preceding paragraph, has
been removed even if the same to broken open
elsewhere.
xxx.

There must be force upon things to be done in robbery in an uninhabited

place. However, in the case at bar, accused never employed such means. She
had her own set of keys to the house which was marked as Exhibit 3.
Said padlock of the gate which was alleged by the complainant that the
accused destroyed was already broken when the accused arrive at the house
of accused Ms. Logarta. The complainant did not even see who destroyed such
padlock.
Furthermore, the police investigation conducted by SP02 Nioda never
show proof as to who destroyed the padlock. No proof as to that fact that it
was really the accused who destroyed such padlock. In addition to that, they
even submitted as evidence three (3) pictures of different padlock that was
looking like it was sawn off, but there were no proof as to what was used to
saw such padlocks.
There were already inconsistencies as to the claim of the complainant
wherein he stated that THE padlock was destroyed and not THREE
padlocks or ALL of the padlocks were destroyed. This is supported by the
complainants Complaint, which states that:
9. Q: What was the result of the investigation?
A: According to them, the perpetrators broke the padlock of
gate of my house.

This proves that there was only one padlock at the gate for it not a
normal human behaviour not to specify how many padlocks where placed
there when one is fighting for his rights that has been violated.

There were no conspiracy

committed.

Conspiracy has been fully discussed in a lot of cases. The recent case
of Macapagal-Arroyo v. People reiterates the long tanking rule on
Conspiracy, which states in part:

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 Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony, and decide
to commit it. In this jurisdiction, conspiracy is either a crime in
itself or a mere means to commit a crime.
xxx.
When conspiracy is a means to commit a crime, it is
indispensable that the agreement to commit the crime
among all the conspirators, or their community of criminal
design must be alleged and competently shown.
We also stress that the community of design to commit
an offense must be a conscious one. Conspiracy transcends
mere companionship, and mere presence at the scene of the
crime does not in itself amount to conspiracy. Even
knowledge of, or acquiescence in, or agreement to cooperate
is not enough to constitute one a party to a conspiracy,
absent any active participation in the commission of the
crime with a view to the furtherance of the common design
and purpose. Hence, conspiracy must be established, not by
conjecture, but by positive and conclusive evidence.
In terms of proving its existence, conspiracy takes two
forms. The first is the express form, which requires proof of an
actual agreement among all the co-conspirators to commit the
crime. However, conspiracies are not always shown to have
been expressly agreed upon. Thus, we have the second form,
the implied conspiracy. An implied conspiracy exists when two
or more persons are shown to have aimed by their acts towards
the accomplishment of the same unlawful object, each doing a
part so that their combined acts, though apparently independent,
were in fact connected and cooperative, indicating closeness of
personal association and a concurrence of sentiment. Implied
conspiracy is proved through the mode and manner of the
commission of the offense, or from the acts of the accused
before, during and after the commission of the crime
indubitably pointing to a joint purpose, a concert of action and
a community of interest.
But to be considered a part of the conspiracy, each of the
accused must be shown to have performed at least an overt act
in pursuance or in furtherance of the conspiracy, for without
being shown to do so none of them will be liable as a co-
conspirator, and each may only be held responsible for the
results of his own acts. In this connection, the character of the
overt act has been explained in People v. Lizada:
An overt or external act is defined as some physical
activity or deed, indicating the intention to commit a

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 particular crime, more than a mere planning or
preparation, which if carried out to its complete
termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison
d'etre for the law requiring a direct overt act is that, in a
majority of cases, the conduct of the accused consisting
merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his
declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may
be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime
itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can
say with certainty what the intent of the accused is. It is
necessary that the overt act should have been the
ultimate step towards the consummation of the design. It
is sufficient if it was the "first or some subsequent step
in a direct movement towards the commission of the
offense after the preparations are made." The act done
need not constitute the last proximate one for
completion. It is necessary, however, that the attempt
must have a causal relation to the intended crime. In the
words of Viada, the overt acts must have an immediate
and necessary relation to the offense.

It was very clear from the testimony of Acussed Ms. Logarta that they
never had any intention to commit any crime. Particularly Ms. Predog was
there for she was the contact of Ms. Absin and Ms. Elvira who were going to
buy said old computer monitors. Her co-accused went only with her to check
the physical features of her old computer monitors if they would be willing to
buy it. And after such they would be checking if it is still functional at the
house of Accused Ms. Predog for she was a free-lance computer technician
and has the tools to do so.
And to point it out again and again, no conspiracy was committed for
there was no robbery committed in the first place.

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 PRAYER
WHEREFORE, in view of all the foregoing, it is respectfully prayed
that judgment be rendered in favour of the defendants, which is stated as
follows that:
1. The defendants be acquitted for failure of the prosecution to prove beyond
reasonable doubt that they are guilty of committing alleged crime;
2. Costs of Suit and Attorneys Fee of 10%
And such other relief just and equitable under the premises is likewise
prayed for.

September 16, 2016. Cebu City, Philippines.

ARLAN-SAAVEDRA- BENDEJO
8F, Persimmon, Mabolo, Cebu City

by:

ATTY. SHEENA A. SAAVEDRA

Counsel for the Defendant
Until December 31, 2017
Roll of Attorney No. 8270
PTR No. 1235-03, January 3, 2014, Cebu City
IBP No. 9876-03, January 3, 2014, Cebu City
MCLE Compliance No. I-0009888 10/21/16

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