ERKEY PIT-OG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND THE HON. JUDGE NICASIO A. BAGUILAT IN HIS CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MT. PROVINCE, BR…

Erkey Pit-og,
otherwise known as Mary Pit-og, appeals from the
decision of the Court of Appeals^[1]
affirming the decision of the Regional Trial Court of Mountain Province, Branch
XXXV at Bontoc which, in turn, affirmed in toto the decision of the Municipal Trial Court of Bontoc finding her guilty beyond reasonable doubt of the
crime of theft and imposing on her the penalty of four (4) months and twenty
(20) days of arresto mayor as minimum,
to two (2) years, eleven (11) months and ten (10) days of prision
correccional as maximum, and the payment of
the total amount of four thousand pesos as actual and moral damages.

The prosecution’s version of the offense charged is as follows:

In Loag, Mainit,
Mt. Province,
there was a communal land called the tayan.  It was owned by the tomayan
group whose members were descendants of the original owners thereof named Jakot and Pang-o.^[2]
Septuagenarian Pel-ey Cullalad
was one of their descendants.  On September 24, 1976, he was requested
by the tomayan to act in their behalf in selling a
400-square-meter residential portion of the tayan, in
order that the tomayan would have something to
butcher and eat during a celebration called ato.^[3]
The sale was made in favor of Edward Pasiteng, whose
house had been built thereon.

The deed of sale states that sale was made in consideration of
the sum of One Thousand Five Hundred Pesos (P1,500)
representing the value of one big cow that was butchered for the benefit of the
tomayan.^[4]
It is also agreed therein that the unregistered property would be registered
under Section 194 of the Revised Administrative Code as amended by Act No.
3344.   Besides Pel-ey
Cullalad, several members of the tomayan
affixed their signatures car thumbmarks on the deed
of sale which was notarized by the mayor of Bontoc.

Thereafter, Edward Pasiteng declared
the property as his own for taxation purposes^[5]
and paid taxes thereon.^[6]

Sometime before Christmas day in 1983, 12-year-old Leonard Marcos
and 9-year-old Jessie Comicho, were left by their grandparents, Edward Pasiteng and Gablay Pasiteng, in their house in the tayan.  According to Leonard, at around 9:00 o’clock in the morning, he saw Erkey Pit-og and more than three
other persons cutting down sugarcane and banana trunks.  They did the cutting for more than thirty
(30) minutes.  Erkey
did not ask his permission and Leonard was afraid that they might whip ham if
he prevented them from cutting the plants. 
Erkey and her companions then took away the
sugarcane and the banana plants.^[7]

According to Jessie, he was with his cousin Leonard munching
sugarcane inside the granary while their grandfather Edward was out hunting and
their grandmother was in Colayo.  Then he saw his aunt, Erkey
Pit-og, and her companions destroy the fence and cut
down the sugarcane and the banana plants. 
Later on, they took away the sugarcane and the banana fruits.^[8]

Edward Pasiteng arrived home at around 5:00 o’clock on a Friday afternoon after two
(2) days of hunting.  As he was about to
take a bath, he noticed that his fence made of sticks and wood and erected
around three (3) meters away from his house, had been destroyed and that his
sugarcane and banana plants had been cut down. 
He learned from his grandchildren, Leonard and Jessie, that his niece, Erkey Pit-og, and her companions
had taken away around 300 pieces of sugarcane worth P1,000
and one bunch of banana plants (sic) valued at P100.  The destroyed fence was worth P900.^[9]

He had planted the sugarcane in the third week of March,
1983.  He had also planted the bananas
and erected the fence.  Although the land
on which the sugarcane and the bananas were planted was communal, he had been
in possession thereof for more than 25 years before it was sold to him by the tomayan.

Edward reported the matter to the police.  On December 12, 1983, Edward and his grandsons. 
Leonard and Jessie, executed sworn statements
before a police investigator.^[10]
Three days later, the police filed a complaint for theft against Erkey Pit-og in the Municipal
Trial Court of Bontoc.  It states:

“That on or about December 1983, at Barangay
Mainit, Bontoc, Mountain
Province, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused with intent of gain did then and there wilfully,
unlawfully and feloniously take, steal and carry away about Three Hundred (300)
pieces of sugar cane and one bunch of banana fruit belonging to one EDWARD
PASITENG without his knowledge and consent and to the damage and prejudice of
said offended party in the total amount of Two Thousand Pesos (P2,000.00)
Philippine Currency.

“CONTRARY TO LAW.”^[11]

Erkey Pit-og
pleaded not guilty to the offense charged. 
At the trial, the defense came up with the following:

The tayan belonged to the descendants
of Jakot. 
Accused was one of them but she did not declare the land for taxation
purposes because no one in the tomayan was allowed to
declare the land as his own.  However,
any member of the tomayan could make improvements on
the land and claim them as his own. 
Anyone who abandoned the land would be succeeded only by other
members.  No person outside the tomayan could succeed to the cultivation of the tayan.

Her father being a descendant of Jakot,
Erkey Pit-og belonged to
the tomayan. 
Some of the members were prosecution witnesses Pel-ey
Cullalad and Theodore Sagudang.  Erkey was born in
the tayan but her family later transferred to Arupey.  Erkey’s father, Lobchoken,
planted sugarcane in the tayan in Loag
after their transfer to Arupey.  When Lobchoken
died, his widow Pidchoy and their children continued
cultivating the land.  They also built a
granary thereon.^[12] The
land was later given to Erkey by Pidchoy
for cultivation.  Thereafter, the family
allowed Edward Pasiteng to build a house behind the
place where Erkey and her family used to have a house
because Edward was Erkey’s uncle being the brother of
her father.^[13]

Erkey planted the bananas and avocado
trees in the area.  There used to be ten
avocado trees but only six remained because Edward cut the rest.  She harvested the sugarcane which they made
into wine, through the og-ogbo, a sort of bayanihan effort wherein barriomates
helped each other in farm work.  No one
had ever prevented them from cutting the sugarcane and the other plants except
in one instance when Donato Pasiteng,
the son of Edward, cut some of her banana plants.  Erkey sued him as a
result of this incident.^[14]

Galingan Wanawan
and Benedict Fangki corroborated the testimonies of Erkey and her mother. 
Wanawan swore that he used to pass by the tayan and see Erkey cleaning
it.  He knew that the sugarcane was
planted by Erkey’s father but the bananas were
planted by Erkey and her husband.   Fangki was one of Erkey’s barriomates who helped
her cut the allegedly stolen sugarcane.

The municipal trial court discredited Erkey’s
story emphasizing that her claim of continuous occupation and possession of the
land was baseless as she had “no papers to show” or prove such claim.^[15]
It found that all the elements of theft under Article 308 of the Revised Penal
Code were present and accordingly rendered the aforementioned judgment of
conviction.

On appeal, the Regional
Trial Court of
Mountain Province
affirmed the municipal trial court and held:

“From the above facts gathered by this court, the following
conclusions had been made x x x.  That the claim of complainant over the land
where the plants (sugarcane and bananas) were supposedly located, is more
credible considering that complainant’s claim of ownership over the land and
naturally the plants thereon is documented. 
Exh.
“A” is a public document, a Deed of Conveyance, showing the transfer of
the lot where the plants in question are located to complainant Edward Pasiteng by one Pel-ey Cullalad, allegedly the eldest of the ‘tomayan‘
group who are the owners of the land in dispute, and witnessed by most if not
all the members or the ‘tomayan‘.  Even accused herself admits that those
involved in the sale are indeed heirs and members of the ‘tomayan‘;
and as testified to by Pel-ey Cullalad,
the sale of the area in question was made in favor of complainant, following
the decision of the ‘tomayan’ group due to the long
occupation of the area and the improvements such as the house, the fence and
the plants introduced by complainant. 
Furthermore, complainant’s possession over the property is also
constructively supported by his tax declarations marked Exh.
“B” and “C” and his realty tax payment marked Exh. “D”. 
Speaking of tax payments, our Honorable Supreme Court ruled that tax
receipts are strong evidence of possession as no one in his right mind would
pay realty taxes year after year for property not in his actual possession.^[16]

“On the other hand, accused does not have a single document to
show her alleged possession of the area in question.  In spite of the claim of accused that she
occupied the area in dispute for over twenty (20) years, she never declared the
property in her name.  In this aspect our
Supreme Court in the case of Cruzado vs. Bustus and Escaler, 34 Phil. 17,
said:  ‘The failure to declare land for
taxation shows claimant did not believe himself to be
owner.’ If the claim of accused has any basis at all, why did she not file
ejection proceedings against complainant, or an action to annul Exh.
“A” considering that complainant is not a member of the ‘tomayan‘ and that complainant allegedly built his house
without permission.  On top of this, why
did accused allow Edward Pasiteng, the complainant,
to fence the area including the sugarcane, the bananas and the avocado trees if
indeed she and her parents were the ones who planted them?”

Alleging that the lower courts erred in ruling that Pasiteng’s claim over the land was more credible, that the
elements of theft are lacking in this case, and that, inasmuch as there was no
criminal intent on the part of the accused, the instant case is purely civil in
nature.  Erkey
Pit-og filed a petition for review on certiorari
in the Court of Appeals.  In its decision^[17]
of October 16, 1986, said
appellate court affirmed in toto the
decision of the lower courts with the following findings and observations:

“A review of the records clearly shows that private
complainant is a possessor in good faith in concept of an owner over the lot
where the crops in question were planted. 
As found by the court a quo, his claim of ownership is
documented by a Deed of Conveyance (Exh.
“A”), a public document which was executed between him and the
members of the tomayan group of Arnab,
Mainit, Bontoc, Mt.
Province on 24 September 1979.  The
validity of this public document has never been question(ed)
by any one of the previous owners belonging to the tomayan
group.  Furthermore,
the tax declarations in the name of, (Exhs. “B” and “C”) and the realty tax payments by,
Edward Pasiteng, (Exh.
“D”), although not conclusive proofs of ownership, are, neverthless, prima facie evidence of his
possession of the land in question, as against petitioner, for, he would not be
paying taxes on the land unless he was in possession thereof and deriving some
benefit therefrom. 
In contrast to these documentary evidence,
petitioner offers nothing better than her bare claim.

“Accused-petitioner next contends that not all the essential
elements of the crime of theft are present in the instant case.  Specifically, it is claimed that criminal
intent on her part has not been established. 
We disagree.  The personal property
taken by accused-petitioner not being hers but those of Edward Pasiteng, and she gained from the taking thereof without
the consent of the owner, accused-petitioner is guilty of the crime of
theft.  Her defense that she owned the
property taken has been shown to be without basis and must have been concocted
by her as it was the only possible defense available to her to avoid criminal
liability for theft.”

Her motion for reconsideration having been denied, Erkey Pit-og filed the instant
petition for review on certiorari raising the following issues:  (a) whether or not there was criminal intent
on the part of the petitioner-accused; (b) whether or not the taking of the
sugarcane was done with intent to gain, and (c) whether or not the present case
is civil or criminal in nature.

This Court does not re-examine the facts of a case in a petition
for review on certiorari under Rule 45 except for unusual reasons
which would justify otherwise.^[18]
One of these reasons is when certain material facts and circumstances had been
overlooked by the trial court which, if taken into account, would alter the
result of the case in that they would introduce an element of reasonable doubt
which would entitle the accused to acquittal.^[19]
We hold that this case falls under said exception to the rule on the binding
effect on this Court of the lower courts factual findings.

Under the first paragraph of Article 308 of the Revised Penal
Code, the essential elements of the crime of theft which must be proven beyond
reasonable doubt are as follows:  (a) the
taking of personal property; (b) the property belongs to another; (c) the
taking away was done with intent of gain; (d) the taking away was done without
the consent of the owner; and (e) the taking away is accomplished without
violence or intimidation against person or force upon things.^[20]
Inasmuch as appellant admits having taken the sugarcane and bananas without
violence or intimidation against person or force upon things, we have to
determine whether it has been proven beyond reasonable doubt that the property
belonged to the complainant and that appellant had intent to gain.

To prove ownership over the sugarcane and bananas, Edward Pasiteng relied heavily on his documentary evidence
consisting of the deed of sale, the tax declarations and the receipt evidencing
tax payment for 1983.  A careful study of
these documents, in conjunction with the testimonial evidence extant in the
record, however, discloses matters which put a cloud of doubt upon appellant’s
culpability.

The deed of sale describes the property as containing an area of 400
square meters and as bounded on the north by Kedawen
on the south by Kilangan and a foot trail, on the
west by a foot trail and the residential houses of Faryao
and Odchanggar, and on the east by Ayochok and Finggay.  On the other hand, tax declarations Nos.
22694 and 23007 show that the property contains an area of 512 square
meters with the following boundaries: 
north, Lagmay Ayochok:  east, Sagumay Balani:  south,
public land (trail); and west, public land (trail).  No where in the record does an explanation on
these disparities appear.

These disparities, however, gain significance under the peculiar
circumstances of this case.  The case
involved was communal before the sale to Edward Pasiteng,^[21]
being co-owned by the members of the tomayan.^[22]
Anyone, including nonmembers of the tomayan, could
build a house thereon.^[23]

Insofar as the exact location of the area where the allegedly
stolen plants were taken from is concerned, the prosecution presented evidence
that the sugarcane and bananas were planted within Edward Pasiteng’s
yard around three meters from his house;^[24]
that Edward had a granary in his yard “above the place where the
sugarcane” was planted and that Erkey also had a
granary above the place where the bananas and sugarcane were planted.^[25]
On the other hand, Erkey admitted that Edward built
the fence enclosing his house which was “below” her granary^[26]
and right behind the site of the house of Erkey’s
family before they transferred to Arupey.^[27]

These testimonies show that the areas cultivated by Edward and Erkey were adjacent and so close to each other that the
possibility of confusion as to who planted which plants is not remote.  In fact, before the filing of this case, Erkey had sued Edward’s son, Donato,
who allegedly cut down bananas she had planted in the area.^[28]
The fact that Edward had built a fence around the area he claimed as his does
not necessarily prove that he enclosed only the 400 square meters he had
purchased from the tomayan.  After all, he had declared as his own for
taxation purposes 112 square meters more than the area he bought.

Hence, the definitive identification of the area allegedly
possessed and planted to sugarcane and bananas by Edward Pasiteng
is imperative.  There is on record a
survey plan of the 512 square-meter areas claimed by Edward^[29]
but there are no indications therein of the exact area involved in this
case.  This omission of the prosecution
to definitively delineate the exact location of the place where Erkey allegedly harvested Edward’s plants has punctured
what appeared to be its neat presentation of the case.  Proof on the matter, however, is important
for it means the identification of the rightful owner of the stolen
properties.  It should be emphasized that
to prove the crime theft, it is necessary and indispensable to clearly identify
the person who, as a result of a criminal act, without his knowledge and consent,
was wrongfully deprived of a thing belonging to him.^[30]

We see this case as exemplifying a clash between a claim or
ownership founded on customs and tradition and another such claim supported by
written evidence but nonetheless based on the same customs and tradition.  When a court is beset with this kind of case,
it can never be too careful.  More so in
this case, where the accused, an illiterate tribeswoman who cannot be expected
to resort to written evidence of ownership, stands to lose her liberty on
account of an oversight in the court’s appreciation of the evidence.

We find that Erkey Pit-og took the sugarcane and bananas believing them to be her
own.^[31]
That being the case, she could not have had a criminal intent.^[32]

It is therefore not surprising why her counsel believes that this
case is civil and not criminal in nature. 
There are indeed legal issues that must be ironed out with regard to
claims of ownership over the tayan.  But those are matters which should be
threshed out in an appropriate civil action.

WHEREFORE, appellant Erkey Pit-og is hereby ACQUITTED for lack of proof beyond reasonable
doubt that she committed the crime of theft. 
No costs.

SO ORDERED.

Gutierrez, Jr., Bidin, and Cortes, JJ., concur.

Feliciano, J., on leave.

^[1]
The Court of Appeals has not been named as a nominal party in the instant
petition.

^[2]
TSN, June 8, 1984, p.
14:  September 28, 1984. p. 31.

^[3]
TSN, September 28, 1984, p.
31.

^[4] Exh. A.

^[5] Exhs. B & C.

^[6] Exh. D.

^[7]
TSN, October 26, 1984, pp.
39-42.

^[8]
TSN, December 7, 1984, pp.
47-49.

^[9]
TSN, June 8, 1984, p. 5.

^[10] Exhs. E, F & G.

^[11] p. 1, Original Records.

^[12] Exh. 4.

^[13]
According to Edward, he was born of the second marriage of Lomaksao,
while the father of Erkey was Lomaksao’s
son by his first marriage (TSN, October 11, 1985, pp. 110-111).  Hence, Edward and Erkey’s
father were half-brothers.

^[14] Erkey filed Crim. Cases Nos. 1051
& 1052 for malicious mischief and grave threats against Donato
Pasiteng in the municipal trial court of Bontoc but the cases were provisionally dismissed after the
parties agreed to resume their former good relationship (Rollo,
p. 82).

^[15]
Record, p. 156.

^[16] Ramos vs. Court of Appeals, 112 SCRA 543.

^[17]
Luis A. Javellana, J., ponente
with Crisolito S. Pascual
and Ricardo L. Pronove, JJ.,
concurring.

^[18]
Hernandez vs. Court of Appeals, L-39767, March 31, 1987, 149 SCRA 67.

^[19]
People vs. Ligon, G.R. No. 74041, July 29, 1987, 152 SCRA  419, 426.

^[20] People vs. Rodrigo, 123 Phil. 310 citing U.S. vs.
De Vera, 43 Phil. 1000.

^[21]
TSN, May 14, 1984, p. 6.

^[22]
TSN, September 28, 1984, p.
28.

^[23]
TSN, June 8, 1984, p. 13.

^[24]
TSN, May 4, 1984, p. 4.

^[25]
TSN, June 8, 1984, p. 22.

^[26]
TSN, January 11, 1985, pp.
74-75.

^[27]
TSN, March 16, 1985, p. 93.

^[28]
TSN, January 11, 1985, p.
69.

^[29]
Record, p. 16.

^[30] U.S.
vs. Cajucom, 34 Phil. 892.

^[31] TSN, January 11, 1985, pp. 65, 70.

^[32] See:  U.S.
vs. Viera, 1 Phil. 584; U.S.
vs. Caneta, 6 Phil. 343.