THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. GERVASIO GUMARANG AND TORIBIO GUMARANG, DEFENDANTS AND APPELLANTS.

This is an appeal by Gervasio Gumarang and Toribio Gumarang from a judgment
of the Court of First Instance of the Province of Isabela convicting them of the
theft of a carabao.

The appellants insist that the court erred: (1) In
finding them guilty of the crime charged; and (2) in finding that the carabao
supposed to have been lost or stolen was the property of Francisco
Tumaliuan.

Francisco Tumaliuan testified that his carabao, valued at P220, was stolen on
November 27, 1911; that on Wednesday he discovered the head, feet, and a portion
of the hide of the animal; that on December 2, 1911, when he was on his way to
attend a wedding at a house to the east of the house of Gervasio Gumarang he saw
some of the meat of his carabao; that he then went to a neighboring house and
told Vicente Mallillin that he had eaten some of his carabao at the house of
Gervasio Gumarang ; that Vicente laughed and told him, “Here are the horns of
the carabao I cut off when I went to help kill that carabao;” that the meat was
found oh the fence at the house of Gervasio Gumarang where it had been placed to
dry; that he could positively identify the head, horns, and pieces of the hide
which he discovered; that he knew they were from his carabao because he had the
animal in his possession every day before it was stolen; that he did not yet
have a certificate of ownership for the animal in his own name, but that he
secured the animal from Florencio Fulgan, haying traded some land for it; and
that he was about to have the certificate of transfer made at the time the
animal was stolen.

Isidro Mesa, a councilman, testified that on December 2, 1911, Tumaliuan
reported to him concerning the loss of his carabao and the finding of the bones,
horns, and meat; that he made an investigation; that he, the lieutenant of the
barrio, Francisco Tumaliuan, and Eufrosina Mallillin went to the house where the
meat was found, and found some meat on the fence of Gervasio Gumarang; that he
then called the justice of the peace and a policeman to the place where the meat
was and turned the meat over to them. The witness further testified that without
the use of force, violence, or intimidation, Vicente Mallillin confessed that he
had helped the other defendants kill the carabao of Francisco Tumaliuan, and
that the pieces of horn found in Vicente’s house exactly fitted the stubs of the
horns of the head found by Francisco.

Eufrosina Mallillin and Aurea Balisi testified to having seen the two
appellants in possession of carabao meat shortly after the time that Vicente
Mallillin confessed to have assisted them, the appellants, in killing the
offended party’s carabao.

Vicente Mallillin, who was charged in the same
complaint but was later excluded on motion of the fiscal to be used as a witness
for the prosecution, testified that he and the two appellants killed the carabao
of Francisco Tumaliuan on November 27, 1911; that Gervasio Gumarang arrived
about 9 o’clock at night of that day with the carabao which he said had been
taken from the offended party’s barrio; that he, the witness, was invited to
help kill it; that his house was about 60 yards distant from the house of
Gervasio; that he did not see the brand of the animal, but that he knew it was
Francisco’s, as he was very familiar with it because the animal was for some
time very close to his house.

The defense at first attempted to prove that a carabao of the appellants had
recently died and that they had used the meat. The intention evidently was to
show that the meat found on the fence, was that of the animal which died from
disease. This course was finally abandoned, as Gervasio Gumarang absolutely
denied that any meat was found in his possession. Vicente Mallillin, an
accomplice, testified positively that the appellants stolie the carabao, and he
was fully corroborated in all essential details. The guilt of the appellants of
having stolen and killed a carabao is therefore established beyond question of a
doubt.

In support of their second assignment of error, appellants’ counsel quote
from section 8 of Act No. 1147, which pro vides that the certificate of
ownership therein provided for shall be prima facie evidence that the
animal is the property of the person therein named as owner.

Counsel also
quote section 22 of the same Act, which provides: “No transfer of large cattle
shall be valid unless registered and a certificate of transfer secured as herein
provided.”

It is a well-settled principle of law that a material variance between the
allegations and the proof as to the ownership of the stolen property in cases of
larceny is fatal to a conviction. (Underwood vs. State, 72 Ala., 220;
King vs. State, 44 Ind., 285; Jones vs. Com., 17 Gratt., Va.,
563; State vs. Wilson, 6 Ore., 428.) The legal title to the stolen
carabao in the case under consideration was not in Francisco Tumaliuan, but he,
Francisco, was in the lawful possession of the animal. He held the carabao by
right of his contract of purchase.

In the case of Fowler vs. State (100 Ala., 96) Thomas J. Fowler was
convicted of the theft of an ox alleged to belong to Charles L. Phillips, The
evidence tended, to prove that Phillips had purchased the ox from Malone &
Collins. On cross-examination Phillips was asked, “if it was not the
understanding at the time he got the ox from Malone & Collins that he should
keep the oxen until fall, and that if he was able to pay for them he was to take
them; otherwise, he was to pay rent on them to Malone & Collins.” To this
question the witness answered in the affirmative. He was then asked “if he had
ever paid Malone & Collins for the oxen, or offered to pay them for the
same.” The State objected to this question, the court sustained the objection,
and the defendant duly excepted.

In deciding the case on appeal the supreme court of Alabama said:

“It was immaterial whether Phillips had paid, or offered to pay, Malone &
Collins for the oxen or not. If he was in possession of them, at the time of the
alleged larceny, either as a conditional purchaser or a bailee, the ownership
was properly laid in him.”

The subject of the allegation and proof of ownership in cases of larceny is
discussed in 25 Cyc, and on page 91 thereof is the following comment: “Any legal
interest in the goods, although less than the absolute title, will support an
allegation of ownership. But there must be an actual legal interest, not a mere
claim or expectation of interest. Thus a seller who has delivered the goods
cannot be described as owner merely because negotiations are pending between him
and the buyer for canceling the sale. So claiming ownership and attempting
without success to do acts of ownership is not enough to justify a description
as owner. The ostensible ownership is, however, enough to justify the
description. So far as the thief is concerned, he cannot question the title of
the apparent owner.”

On pages 89 and 90 in Cyc, vol. 25, under the heading, “Who should be laid as
owner,” we find the following: “The actual condition of the legal title is
immaterial to the thief; so far as he is concerned, one may be taken as the
owner who was in peaceable possession of it, and whose possession was unlawfully
disturbed by the taking. The possessor of the goods from whom the thief took
them may therefore properly be described as owner in the indictment. The
possession must be actual; right of possession alone will not suffice. Nor a
general direction and control, not amounting to a legal possession. The goods
need not be in the actual manual possession of the person described as owner at
the moment of taking; it is enough that he was legally the possessor. Upon this
principle the property of goods stolen may be laid in a bailee from whom they
were taken, as for instance in a common carrier, an innkeeper, a pledgee, a
receiver, a hirer or borrower, a cestui que trust, one in possession
under a contract for purchase, a washer woman who has the goods to wash, or a
coachmaker who has a coach to repair, or a lienor, a manufacturer who is
performing work on the materials of another, a cashier of a bank, or a constable
who has attached or taken the goods in execution.”

Although the actual legal title to the stolen carabao may not have been in
Francisco Tumaliuan, he was the peaceable possessor of the animal by reason of
having purchased the same from Florencio Fulgan, By reason of this purchase,
accompanied with the actual possession, Tumaliuan had a real or legal interest
in the animal. The actual condition of the legal title was immaterial in so far
as the appellants are concerned. They took the animal from the actual possession
of Tumaliuan, the apparent owner. They cannot now be heard to say that Tumaliuan
was not the owner.

The penalty imposed by the trial court is not the penalty provided by law for
the offense committed. The carabao stolen was valued at P220; hence, according
to arts. 518 and 520 of the Penal Code, as amended by Act No. 2030, the proper
penalty to be imposed upon the appellants is the penalty next higher in degree
than arresto mayor in its medium degree to presidio
corressional in its minimum degree, which is presidio correctional
in its medium degree to presidio mayor in the minimum degree. There
being present no aggravating or mitigating circumstances, the medium degree of
the proper penalty must be imposed. The judgment appealed from is therefore
modified by substituting four years two months and one day, presidio
correctional, in lieu of the two years eleven months and eleven days
imposed by the trial court. In all other respects the judgment is affirmed, with
costs against the appellants.

Arellano, C. J., Carson and Araullo, JJ., concur.

Moreland, J., concurs in the result.