FIRST DIVISION
[CA-G.R. CR No. 20981. April 30, 2001.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NAPOLEON BARBADO, accused-appellant.
D E C I S I O N
AGCAOILI, J p:
Before us is an appeal from the decision dated April 14, 1997 of the Regional Trial Court, Branch 13, Oroquieta City, the dispositive portion of which reads:
"WHEREFORE, premises considered, this Court finds accused Napoleon Barbado guilty beyond reasonable doubt of the crime of Qualified Theft defined and penalized under Article 310 in relation to Article 309 of the Revised Penal Code, and there being no mitigating or aggravating circumstances, he is hereby sentenced to an indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of prision correccional as its minimum period to TEN (10) YEARS and ONE (1) DAY of prision mayor as its maximum period, together with the accessory penalties provided by law, to indemnify the complainants the sum of P7,600.00 for the value of the nuts gathered by the accused and to pay the costs.
SO ORDERED." 1
The factual backdrop of this case is as follows:
On December 15, 1995, accused-appellant Napoleon Barbado was charged in an information which reads:
"INFORMATION
The undersigned accuses NAPOLEON BARBADO, of the crime of Qualified Theft, defined and penalized under Article 308 in relation to Articles 309 and 310 of the Revised Penal Code, committed as follows:
That on or about September 5, 1995, at about 7:00 o'clock in the morning, more or less, in barangay Sumasap, municipality of Panaon, province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with intent to gain, and without the knowledge, permission and consent of the owner did then and there willfully, unlawfully and feloniously harvest, gather and carry away, coconuts, within the premises of the cocoland owned by spouses, Cesar D. Caballero and Melecia Z. Caballero, with an aggregate value of around P7,600.00, Philippine Currency to the damage and prejudice of the said owner in the aforementioned amount.
CONTRARY TO LAW." 2
On arraignment, appellant pleaded not guilty to the crime charged.
The prosecution established the following:
Albina Talibong Zaballero was the owner of an agricultural land planted with coconut trees located at Sumasap, Panaon, Misamis Occidental. After Albina's death, the land passed on to her children namely, Irenea Zaballero Dolio and Melecia Zaballero Caballero. Melecia and her husband Cesar Caballero were the ones paying the real taxes on said land. Irenea died in 1985.
In 1991, the Caballero spouses resided in the United States. They designated appellant, through their son Syne, to administer their property and to oversee and supervise the harvesting of the coconuts in their behalf on said agricultural land.
On June 4, 1992, the Caballero spouses sent a letter to appellant terminating the latter's services as designated administrator for his failure to remit the income pertaining to the share of Melecia from the land that covers three harvests. Barbado did not reply. Letters dated July 31, 1992 and September 18, 1992 were then sent to appellant reiterating his dismissal as administrator and warning him not to touch the produce of the land. Appellant did not respond.
In January 1993, the Caballero spouses again sent another letter to appellant demanding him to send the income from the harvests covering the period May 1992 — January 1993. Appellant failed to remit such income.
In September 1995, despite previous prohibition from the Caballero spouses, appellant harvested the coconuts without the spouses' consent. Thus, a complaint was filed against appellant for stealing the coconuts.
Appellant denied the charge that he stole the coconuts. He alleged that he was in possession as tenant of the land covering the shares of both Melecia and the late Irenea since 1971. Irenea's adopted son Al, who happened to be appellant's natural child, consented to his alleged tenancy of the land pertaining to Irenea. Appellant claimed to have remitted and sent the share of Melecia to the United States through his brother in Cebu. However, after the shares corresponding to the harvests in 1992 had allegedly been sent, the shares pertaining to the remaining harvests were not sent as they were used for the repair of the house owned by Melecia located in Sta. Cruz, Jimenez, Misamis Oriental.
The trial court preferred the prosecution's version. Thus, it convicted appellant for the crime of qualified theft with the following rationale:
"The prosecution had proven that accused Napoleon Barbado was appointed caretaker of the land in dispute owned by Cesar Caballero and Melecia Caballero, the plaintiffs herein. The only work that Barbado did was only to administer the land. He did not render any personal manual labor on the said land because the harvesting, gathering, extracting and drying of the nuts, as well as the clearing of the said land, had been done at the expense of the plaintiffs from the proceeds of the coconuts found on the land. The accused failed to remit the proceeds of the coconuts of the land to the plaintiffs, so the services of accused Napoleon Barbado as caretaker of the land was terminated.
Inspite of the termination of the services of Napoleon Barbado, he proceeded to harvest the nuts of the land in question, particularly on or about September 5, 1995. After receiving the notice of termination from the plaintiff that his services as caretaker of that land had been terminated, said accused Napoleon Barbado should have stopped gathering the nuts from the land because he did not have any authority to do so. He harvested the nuts after he had been advised and informed not to harvest the coconuts, hence, the harvest on September 5, 1995, was no longer with the consent of the plaintiffs. It being not with the consent of the plaintiffs, said accused Napoleon Barbado had committed the crime charged. He could not allege the claim of tolerable claim of ownership because he does not possess the same. As a matter of fact, Napoleon Barbado admitted the ownership of the land by the plaintiffs. Said accused could not avail of the defense of 'one who takes personal property openly and avowedly under claim of ownership made in good faith even though the claim of ownership is later on found to be untenable' because the authority of the accused previously given by the plaintiff landowners had been terminated and said accused was properly notified. The harvesting of the coconuts by the accused on September 5, 1995 was done in bad faith. If it is true, as he claimed, that he is a tenant of the land, his remedy should have been to seek redress with the corresponding authorities, the DAR or the Court. The accused failed to do so, but, instead harvested the nuts without the owners' consent. He is, therefore, liable for the crime of qualified theft.
'If the accused was only entrusted with de facto possession of the thing, his misappropriation of the same constitutes theft.' (Santos vs. People, 181 SCRA 487)
'Admission by petitioner Omana that he was warned not to gather abaca from the land demonstrates that he knew beforehand the claim of ownership of the Urbana spouses.' 'Intent to gain is presumed from the furtive taking of useful property appertaining to another unless special circumstances reveal a different intent on the perpetrator's part.'(Omana vs. People, 169 SCRA 677)" 3
On February 10, 1998, appellant appealed the trial court's decision imputing the following errors: (a) that the lower court grossly erred in holding that the evidence for the prosecution established the guilt of the accused beyond reasonable doubt; (b) that the lower court erred in failing to appreciate that the land is in co-ownership.
Appellant argues that the relationship that existed between him and the complainants was one of landlord-tenant. Thus, he was not merely an administrator of the property in question. A certain Cobrado previously tenanted this property but was ousted in 1991. Appellant simply continued the tenancy relationship that previously existed. The division of the income or proceeds of the harvests is through a sharing system of 2/3 for the landowner and 1/3 for appellant. The sharing system is substantiated by the letters sent by complainants to appellant demanding their share of the proceeds of the harvests.
Appellant avers that had it been the intention of the complainants to designate him as mere administrator, an instrument clearly spelling out his duties and responsibilities including the terms of salary or remuneration should have been drafted.
Appellant alleges that his acts of continuously harvesting the coconuts and openly defying complainants' notice of termination strengthen his claim that he is indeed a tenant and not a mere administrator. He went to the Department of Agrarian Reform (DAR) office to lay down his protest to the termination and after evaluation the DAR legal officer declared him as tenant and not a mere administrator or caretaker.
Appellant contends that assuming he was only an administrator of the property, complainants should have resorted to judicial process before taking away from him the possession of the land.
The half portion of the land, which belonged to the deceased Irenea, passed on to her adopted son and only legal heir, Al, who happened to be appellant's natural child. As Al's natural father, appellant submits that entrusting with him the property that belonged to Al made him a tenant thereof. Thus, the possession of the half portion remains with appellant and the appropriation of the whole property does not render him guilty of theft.
Appellant's arguments are bereft of merit.
In order for a tenancy relation to take serious hold over the dispute, it is significant that all the essential requisites thereof must first be established, to wit: (1) that the parties are the landowner and the tenant or agricultural lessee; (2) that the subject matter of the relationship is an agricultural land; (3) that there is consent between the parties to the relationship; (4) that the purpose of the relationship is to bring about agricultural production; (5) that there is personal cultivation on the part of the tenant or agricultural lessee; and, (6) that the harvest is shared between the landowner and the tenant or agricultural lessee. 4
Thus, sharing of harvests is not a decisive indication per se of the existence of tenancy relationship, it has to be taken together with other factors characteristic of tenancy. 5 One of the essential factors is personal cultivation, which appellant failed to positively establish. Cultivation is not limited merely to the tilling, plowing or harrowing of the land. It includes the promotion of growth and the care of the plants, or husbanding the ground to forward the products of the earth by general industry. 6
The prosecution witnesses had testified that appellant merely supervised the harvesting of the coconuts and no more than hired laborers to gather, pile or husk the coconuts during harvest time. His known line of work was that of a motorela cab driver. He had not resided in the plantation but in Sta. Cruz, Jimenez, Misamis Oriental. He neither personally worked on the land nor planted any crops or trees therein. And as succinctly found by the trial court, the only work that he did was to administer the land. The expenses in cultivating the land had also been borne by complainants. Appellant cannot thus claim that he had been a tenant as he had not acted as such and it had not been intended by the complainants to designate him as one.
Accordingly, deemed as mere overseer of the property, appellant's services may validly be terminated by complainants. Appellant's failure to remit the proceeds of the harvests amounted to loss of confidence on the part of complainants. Upon the termination of his services, appellant should have discontinued from harvesting the coconuts as he was already divested of any authority to harvest for the complainants. Even granting that the DAR legal officer considered him as a tenant, it was testified to by the same legal officer that this inference proceeded from the information given by the appellant himself, which is self-serving. The indispensable requisite of personal cultivation by appellant had not also been established in the testimony, thus:
"Q You said, you gathered informations, what have you found from his declarations?
A That there are some evidences or pesadas and receipts with respect to remittances to the owner and I am convinced that his status is a tenant of the land.
Q Are you referring to the pesadas and record of sales, remitter's receipts?
A I tried to determine whether he complied the essential requisites for the establishment of tenancy status in accordance with law.
Q And your findings you have made on the relationship between Barbado and Caballero?
A At the time he told me that he was appointed tenant last December 1991 and he started sharing of the proceeds in the next month.
Q Based on his declaration, do you know if such tenancy relationship continued until the time that Barbado reported to your office?
A I think so.
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Q Your conclusion is that Napoleon Barbado is the tenant because that was the matter being told or related to you by the accused during your investigation conducted?
A No. I tried to find out whether he has complied with the essential requisites in establishing tenancy status in accordance with law.
COURT: (to witness)
Q When was that tenancy relationship started?
A In 1991.
Q That is in accordance with the agrarian reform law?
A That the land must be agricultural and that there will be proper sharing of the products.
Q Did he show to you a written document that proved he is the tenant?
A No, but I have tried to find out if he has the clear sharing and receipts and he presented.
COURT:
Proceed.
ATTY. BLANCO: (cross)
Q The only person you have investigated was the accused, Napoleon Barbado?
A Yes.
Q So in other words you have no other evidences to prove that Napoleon Barbado was actually cultivating the land?
A In the actual investigation.
Q Just answer my question.
A Yes.
Q You have no other actual evidence?
A Actual evidence, actually no other than those because my purpose in summoning was for mediation.
COURT:
Answer the question.
A The evidences.
COURT: (to witness)
Q Do you have evidences that he was cultivating or not?
A He was the one harvesting.
Q Do you mean harvesting is cultivating?
A No. But the fact is that he was cultivating for quite long time.
Q But I am asking you, what are the evidences that he was cultivating?
A From the receipts itself and on his declarations.
Q What are they?
A That he was the one harvesting, taking care of the land, clearing, in charge in the development of the land, plant improvements.
Q That is your basis on your conclusion that he is the tenant of the land. What kind of land is involved?
A Cocoland.
Q How big?
A I am not quite sure of the area but I think more than one hectare or less.
Q What are the plants found on the land?
A Coconuts, coconut trees.
Q How many?
A I could not remember the number.
COURT:
Proceed.
Q Did Napoleon Barbado present to you an affidavit in order to prove that he was actually personally cultivating the land?
A He did not present any affidavit.
Q Did you advise him to have an affidavit executed in order to state the facts that actually he was the one personally cultivating the land?
A There is no need.
Q Am I correct Mr. Hynson that an administrator can present also a pesada?
A Yes.
Q So in other words it is not therefore a conclusive evidence, you being the legal officer of the DAR, that a mere possessor of pesadas is a tenant. Am I right?
A Right." 7
It is futile for appellant to argue that he was a co-owner of the subject property. The fact that he was the natural father of the only heir to the half portion of the property does not give him any interest over the subject land. Consequently, he has no right to appropriate the proceeds of the harvests of the land.
Accordingly, appellant's act of taking the coconuts without complainants' consent after he was terminated from the services amounted to qualified theft. All the essential elements of the crime of qualified theft have been substantiated by the facts proven, to wit: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; (5) that the taking be accomplished without the use of violence or intimidation against persons or force upon things; 8 and, (6) that the property stolen consists of coconuts taken from the plantation. 9
In resume, there appears to be no reason to disturb the judgment of conviction of the trial court. It is well woven into the fabric of our jurisprudence that the factual findings of the trial court are accorded the highest respect, unless it is shown that certain facts of value have been plainly overlooked which, if considered, could affect the judgment to be rendered. In the instant case, appellant has failed to present any substantial evidence to disturb the findings of the trial court. 10
Nevertheless, we deem it necessary to review the penalty imposed by the trial court.
The trial court imposed a penalty of imprisonment ranging from four (4) years, two (2) months and one (1) day of prison correccional, as minimum, to ten (10) years and one (1) day of prison mayor, as maximum. The People's counsel, however, recommends a penalty of imprisonment for six (6) years and one (1) day of prision mayor, as minimum, to eleven (11) years, six (6) months and one (1) day of prision mayor, as maximum. 11
In determining the appropriate penalty, the provisions of Articles 309 and 310 of the Revised Penal Code are applicable, thus:
"ART. 309. Penalties. — Any person guilty of theft shall be punished by:
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2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 200 pesos but does not exceed 12,000 pesos.
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ART. 310. Qualified theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding articles, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disruption, or any other calamity, vehicular accident or civil disturbance.'' 12
The value of the stolen coconuts is P7,600.00. Thus, under Article 309, the penalty is prision correccional in its medium and maximum periods. Since the theft is qualified, the penalty is two degrees higher.
By analogy, the penalty two degrees higher than prision correccional in its medium and maximum periods is prision mayor maximum to reclusion temporal minimum or ten (10) years and one (1) day to fourteen (14) years and eight (8) months. 13 In the absence of mitigating or aggravating circumstance, the penalty shall be imposed in its medium period or eleven (11) years six (6) months and twenty-one (21) days to thirteen (13) years one (1) month and ten (10) days.
For the purpose of applying the Indeterminate Sentence Law, the minimum penalty shall be within the range next lower to that prescribed by the code for the offense. 14 The penalty next lower in degree is prision mayor minimum to prision mayor medium or six (6) years and one (1) day to ten (10) years. Thus, the penalty to be imposed shall be anywhere within the range of six (6) years and (1) day as minimum to (13) thirteen years one (1) month and ten (10) days as maximum. The minimum penalty imposed by the trial court is not within the range of the appropriate minimum penalty. However, we see no reason to modify the maximum penalty imposed by the trial court.
WHEREFORE, the decision dated April 14, 1997 of the regional trial court convicting appellant of the crime of qualified theft is hereby AFFIRMED subject to the MODIFICATION that appellant shall suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor minimum, as minimum penalty, to ten (10) years and one (1) day of prision mayor maximum, as maximum penalty.
SO ORDERED.
Garcia and Asuncion, JJ., concur.
Footnotes
1 Record, 160
2 Rollo, 22
3 Record, 159-160
4 Sintos v. Court of Appeals, 246 SCRA 223 (1995); Oarde v. Court of Appeals, 280 SCRA 235 (1997)
5 Guerrero v. Court of Appeals, 142 SCRA 136 (1986); Carag v. Court of Appeals, 151 SCRA 44 (1987); Coconut Cooperative Marketing Association, Inc. v. Court of Appeals, 164 SCRA 568 (1988)
6 Guerrero v. Court of Appeals, supra.
7 TSN, August 26, 1996, 3-4, 6-8
8 Avecilla v. People, 209 SCRA 466 (1992)
9 Article 310, Revised Penal Code
10 People v. Fuensalida, 281 SCRA 452 (1997)
11 Rollo, 76
12 Emphasis given
13 People v. Javier, 112 SCRA 186 (1982)
14 Republic Act 4103, as amended