SIXTH DIVISION

[CA-G.R. CR. No. 19557.  May 31, 1999.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LIBRADO ARO, accused-appellant.

D E C I S I O N

UMALI, J p:

            This is an appeal from the decision rendered by Branch 13, Regional Trial Court at Oroquieta City dated January 18, 1996 in Criminal Case No. 1212 finding accused Librado Aro guilty beyond reasonable doubt of the crime of Qualified Theft.   AEDcIH

            Accused was originally charged by the Office of the Provincial Prosecutor of Misamis Occidental and arraigned with the crime of Estafa in an Information dated December 28, 1995 ( p. 7, Record) filed before the Municipal Trial Court of Lopez Jaena, Misamis Occidental and docketed as Criminal Case No. 2253. Upon reinvestigation however, the government found instead the existence of a probable cause for Qualified Theft against accused. Hence, the Information for Estafa on motion of the prosecution was ordered withdrawn. Accused was thereafter charged for Qualified Theft in an Information dated October 18, 1993 which reads:

            "The undersigned accuses LIBRADO ARO of the crime of Qualified Theft, defined and penalized under Article 310 in relation to 309 of the Revised Penal Code, committed as follows:

            That on or about December 27 and 28, 1991 at barangay Molatuhan, municipality of Lopez Jaena, province of Misamis Occidental, Philippines and within the jurisdiction of this Honorable Court, accused Librado Aro being tenant of Maylyn Araño on her cocoland with lumber trees and other improvements and by virtue of the tenancy relationship, has complete access on the cocoland of Maylyn Araño who entrusted him of the care of the cocoland and other lumber trees and be vigilant over it, and accused with intent to gain and without the consent of the owner, with grave abuse of confidence reposed upon his landlord willfully, unlawfully and feloniously did then and there, cut, remove and steal three tipolo trees worth P2,928.00 and five coconut trees worth P1,500.00 with the total value of P4,428.00 sawn it into lumber and sell it to other persons to the damage and prejudice of the owner Maylyn Araño in the same amount of P4,428.00.

            CONTRARY TO LAW." ( p. 1, ibid.)

            Thereafter, the court issued a warrant for the arrest of accused and fixed a bail bond for his provisional liberty at P12,000.00 ( p. 49, ibid.). On January 6, 1994, the trial court ordered the release of accused from detention after accused posted a property bond ( p. 49, ibid.).

            On March 8, 1994, during the arraignment, accused duly assisted by his counsel entered a plea of not guilty. Thereafter, trial on the merits ensued.

            The prosecution presented as witnesses Teodorico Lagrosa and Leo Araño. Witnesses Tomas Esguerra, Querico Busman and Dolly Horilleno Abuton were presented on rebuttal. As found by the trial court and as stated in its assailed decision, their testimonies tend to proffer the following, thus:

            ". . .. Sometime in December, 1991, Teodorico Lagrosa had a talk with accused Librado Aro who offered to him to sell his tipolo trees located at Molatuhan, Lopez Jaena, Misamis Occidental. According to Librado Aro, this tipolo tree is owned by him. The first timber tree cut was paid P1,200.00 while the second cutting of the three tipolo trees were paid P2,928.00. These three tipolo trees were brought to Rey Ibasan and to Edgardo Albios in Taboc Norte. They were able to sell to them for P6,000.00. Librado Aro claimed ownership of the three tipolo trees. Teodorico Lagrosa was summoned to Camp Naranjo and he was informed there that the tipolo trees were owned by Major Araño. Librado Aro did not inform Teodorico Lagrosa that he is the tenant of the land where those tipolo trees were located. The P2,928.00 for the three tipolo trees were paid by Teodorico Lagrosa to accused Librado Aro on December 27, 1991. Two of these tipolo trees were cut in the month of December, 1991, and the other one was cut in the second week of January, 1992. Payment was made in his house at Molatuhan, Lopez Jaena, Misamis Occidental.   AHDTIE

            Also testifying for the prosecution is Leo Araño who testified that he is married to Maylyn Abuton in 1984. Librado Aro, whom he identified, is the tenant of their land in Molatuhan, Lopez Jaena, Misamis Occidental. The land was inherited by his wife and her mother. He and his wife, Maylyn Abuton Araño, purchased the share of her mother, so they acquired the whole land in 1984 and declared in their name under Tax Dec. No. 21346 marked as Exh. "A". The deed of confirmation of previous oral partition with absolute deed of sale over the land has been marked as Exh. "B". Leo Araño had told Librado Aro that they are the owners of the land. Librado Aro, and his wife, said "I am happy that you bought the land because it is sayang if it will go to others". Sometime in 1989 he had participated in the discussion regarding the "new leasehold" as mandated by the provisions of the CARL.

            Leo Quijano Araño did not know the exact date when the trees were cut. He was only informed by their errand boy who reported to him that there were five coconut trees cut down in the second week of January, 1992. So he went there, together with the barangay captain, and they inspected the place and found that two tipolo trees were cut and converted into lumber. He had pictures taken which had been marked as Exhibits "C", "D", "E", "F" "G" and "I". All these cut trees were located in Molatuhan Bajo, Lopez Jaena, Misamis Occidental within the area covered by the tax declaration marked as Exh. "A". The value of the coconut trees is P1,500.00, while the tipolo trees is P2,928.00. Librado Aro attempted to pay his wife but his wife did not receive it in the first week of January, 1992. Librado Aro did not ask permission to cut these trees before cutting. Librado Aro wanted to give P500.00 but was not accepted by the wife of Leo Araño. They were only told that "this money was the proceeds of the sale of the firewood" so her mother-in-law received the amount of P500.00. Aside from the P500.00 no other amount was given by Librado Aro to them.

            Leo Araño had a confrontation with accused Librado Aro before the Barangay Agrarian Reform Committee and Librado Aro admitted cutting the trees and he asked forgiveness. Leo Araño did not forgive him." ( pp. 188-189, ibid.)

            The defense, on the other hand, presented as witnesses accused Librado Aro, Timoteo Pangasian, Lorimer Clarin and Esterlita Magoncia. The defense's theory, found mainly in the testimony of the accused, was extensively depicted by the trial court in the assailed decision, thus:

            ". . .. Before he (accused) resided in Molatuhan Bajo, in 1963, Librado Aro was residing in Alguensan, Cebu. He was brought to Molatuhan, Lopez Jaena, Misamis Occidental by Mr. Pedro Abuton to watch the coconut land pertaining to the share of Cesar Abuton. Librado Aro disposed all his domestic animals in Alguensan, Cebu and went with Pedro Abuton to Molatuhan, Lopez Jaena, Misamis Occidental. Librado Aro brought with him his carabao, together with his family. He tenanted a portion of the land of Eleuteria Abuton. Cesar Abuton was present when Librado Aro arrived. Cesar Abuton brought him to the place to be tenanted by him. Librado Aro has six children at the time they resided at Molatuhan, Lopez Jaena, Misamis Occidental. Instructions were given to him by Cesar Abuton. Cesar Abuton instructed him to cut the bushes and plant the coconut seedlings that were already big. According to Cesar Abuton to him, if the coconut trees will already be five years old he will pay Librado Aro P1.00 per tree. Librado Aro was not paid by Cesar Abuton because Cesar Abuton died. Teria Abuton knew the place tenanted by Librado Aro. Librado Aro did not only cut grasses but also planted the area with coconut trees.   EDCcaS

            In planting those coconut trees, Librado Aro hired three laborers, namely, Propecio Bisas, Nicolas Mangubat and Timoteo Pangasian whom he paid P50.00 per day so for three days he paid P150.00 each. These coconut trees were planted on April 17, 1963. After planting these coconut trees Cesar Abuton told him to transfer the tipolo seedlings to the lower portion of the land in the canal so that it will not be eroded. Some of them became big and others died. Librado Aro planted camote, cassava and corn. The complainant did not ask share of the camote, cassava and corn planted. They only asked young corn. Leo Araño had charged Librado Aro for estafa in the Municipal Trial Court of Lopez Jaena, Misamis Occidental regarding the cutting of these tipolo trees. He was sentenced to five days imprisonment in Lopez Jaena, after which he was bailed and the estafa case was scheduled for hearing but it was not heard. However he was surprised because he was arrested and bonded P12,000.00, for the crime of qualified theft. There was a DARAB Case and it was also dismissed, the order of which had been marked as Exh. "1", for the defense.

            Teodorico Lagrosa had come to Librado Aro to buy tipolo lumbers so Librado Aro went to Dolly Abuton and Dolly Abuton told him that if somebody will buy tipolo tree, he will just inform her. Dolly Abuton, upon being informed that somebody will buy tipolo tree, said 'good that there is somebody who will buy lumber because I need money. My electric current will be cut off because I have not paid my electric bills and water bills.' He requested Mrs. Abuton to go to Molatuhan to verify how much to sell but she did not go there but instead told him 'just sell the lumber and see to it that we will not be at a lost'. The lumbers were bought by Ibsan for P1,500.00 because Lagrosa was only a canvasser. Librado Aro delivered the amount of P1,500.00 in the later part of December, 1991. Librado Aro gave the whole proceeds of the lumber to her and after Mrs. Abuton computed it, the share of Dolly Abuton was P1,000.00 out of the P1,500.00 as it was shared into three and he was given P500.00 as his share because he was the one who planted it. This tipolo tree was planted by Librado Aro at the time these three persons were hired by him. The salary of the three laborers were paid by Librado Aro and not by Cesar Abuton. Librado Aro, after that, asked her if it's okey if somebody will buy more, and she answered that it's good, just deliver to me the proceeds. So Librado Aro sold the two tipolo trees which were planted by him. The proceeds was P240.00 because some of the lumbers were rejected. There was hole inside the tree eaten by termites. However, Mrs. Dolly Abuton did not accept the proceeds of P240.00 because said amount should be given to Maylyn, so he was surprised why Mrs. Dolly Abuton told him that she will not accept the P240.00 because Major Araño was angry and he has a plan to eject Librado Aro from the landholding because if Librado Aro will live on the land as tenant the portion of that land will be deducted. Librado Aro was worried. He sought the help of Mr. Clarin, MARC of Lopez Jaena. Mr. Clarin advised Mr. Librado Aro to bring the amount back to BARC to be computed for the share of Mrs. Dolly Abuton that will be deposited with the bank.

            Esterlita Magoncia, BARC Chairman of Molatuhan, Lopez Jaena, Misamis Occidental computed the proceeds of the second cut tipolo timber at P240.00 which she divided into three. Librado Aro received two shares while Mrs. Dolly Abuton one share. Since Mrs. Abuton refused to receive her share, Librado Aro deposited her share with the Rural Bank of Lopez Jaena by means of the bank book in possession of Librado Aro marked as Exh. "2", and its entries as Exh. "2-A". Major Araño charged Librado Aro for not asking permission from them when said Librado Aro cut the tipolo trees. Librado Aro was not able to talk with Major Araño. Librado did not ask permission from Major Araño because he asked permission from Mrs. Dolly Abuton, the wife of Cesar Abuton, who appointed Librado Aro as watcher. Librado Aro asked forgiveness from Major Araño during that hearing at Molatuhan at the BARC. Major Araño claimed that he was the owner of the trees that is why Librado Aro asked forgiveness from him for cutting the tipolo trees because said Librado Aro believed that the tipolo trees were owned by Cesar Abuton.   IECAaD

            Major Araño filed a case in the DARAB against Librado Aro but it was dismissed, the order of which had been marked as Exh. "1". Librado Aro did not also ask permission when he cut the coconut trees because the instruction of Cesar Abuton was to cut old coconuts that will hinder the growth of the newly planted coconut trees and also to cut into pieces and burn those old ones so that the beetles cannot eat it. So the old cocotrees were cut by Librado Aro for his personal purpose because according to Cesar Abuton he will not ask a share from it. That is also the same terms that Cesar Abuton give to him with respect to the nipas. The cocotrees cut were already old whose leaves were falling down and Mr. Araño got the trunk and made it into lumber, the picture of which had been marked as Exh. "3". Corns are shown in the picture which were planted by Librado Aro and it's not yet harvested. The total area that Librado Aro is tenanting nine (9) hectares.

            There was a voluntary offer to sell a portion of that lot at (P40,000.00) per hectare as offered by Major Araño so Librado Aro accepted the offer. The papers were sent to DAR Cagayan de Oro and Mr. Clarin said 'just wait because the papers were sent to the regional office' which voluntary offer to sell form had been marked as Exh. "4", and the other voluntary offer to sell form no. 1 had been marked as Exh. "5" which Librado Aro received from Mr. Clarin." ( pp. 189-192, ibid.)

            After trial, the court a quo found the accused guilty of the crime charge, the decretal portion of which reads as follows:

            "WHEREFORE, premises considered, accused Librado Aro is hereby found guilty beyond reasonable doubt for 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 nor aggravating circumstance, he is hereby sentenced to suffer an indeterminate penalty ranging from FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY of Prision Correcional, as its minimum, to TEN (10) YEARS of Prision Mayor as its maximum period, together with the accessory penalties provided for by law, to indemnify the complainants the amount of P4,428.00 and to pay the costs. Said accused is credited with the time he was placed under preventive imprisonment.

            SO ORDERED." ( p. 196, ibid.)

            Dissatisfied with the verdict of conviction, accused, now appellant Librado Aro interposed this present recourse with the following assignment of errors, to wit:

"FIRST ASSIGNMENT OF ERROR

            THAT THE HONORABLE COURT GROSSLY ERRED IN DECLARING THE ACCUSED LIBRADO ARO WAS MERELY A CARETAKER OF THE LAND.

SECOND ASSIGNMENT OF ERROR

            THAT THE HONORABLE COURT ERRED IN DECLARING THAT ACCUSED-APPELLANT HAS NO RIGHTS AND INTEREST IN THE COCONUT AND TIPOLO TREES.

FOURTH ASSIGNMENT OF ERROR

(No third assignment of error was stated.)

            THAT THE HONORABLE COURT GROSSLY ERRED IN APPRECIATING THE TESTIMONIES OF THE PROSECUTION WITNESSES AS AGAINST THE TESTIMONIES OF THE ACCUSED WITNESSES.   cAHDES

FIFTH ASSIGNMENT OF ERROR

            THAT THE HONORABLE COURT GROSSLY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF QUALIFIED THEFT." ( pp. 47-48, Rollo)

            The first and second issues being intimately related, the same shall be treated jointly. Appellant contends that he is not merely a caretaker of the land but a co-owner thereof being a legitimate and duly instituted tenant of the property since 1963. Adhering to the doctrine of co-ownership, appellant shares part of the proceeds of the harvest, hence, the element that the property taken belongs to another is lacking in the case at bar.

            We find merit in the present appeal.

            The first paragraph of Article 308 of the Revised Penal Code explicitly provides, thus:

            "Art. 308.      Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against, or intimidation of, persons nor force upon things, shall take personal property of another without the latter's consent".

            Taking, to be unlawful under the aforecited law, has several qualifying conditions, to wit:

1.         The property taken must be a personal property;

2.         The property taken belongs to another;

3.         The taking away was done with intent of gain;

4.         The taking away was done without the consent of the owner;

5.         The taking away is accomplished without violence or intimidation against persons or force upon things. (Erkey Pit-Og vs. People of the Philippines and Hon. Judge Nicasio Baguilat, G.R. no. 76539, Oct. 11, 1990)

            The determination as to whether or not accused is a "caretaker", a tenant or a lessee under the leasehold tenancy system is here appropriate to settle. We have taken great pains in scrutinizing the documentary evidence on record, in conjunction with the testimonial evidence extant in the case under consideration and it was established that accused was either a tenant or a lessee. The affidavit executed by private complainant Maylyn Abuton Araño in relation to this case indicated that appellant Librado Aro is a tenant of their property, thus:

"xxx                    xxx                    xxx

            That I am the owner of a parcel of agricultural land designated as Cad. Lot No. 604-part, covered by Tax Declaration No. 21346, situated at Molatuhan Bajo, Lopez Jaena, Misamis Occidental; that the said land was acquired by me as my share (inheritance) from my deceased father and purchased the share of my mother by virtue of a Deed of Confirmation of Previous Oral Partition With Absolute Sale executed during the year 1987 before Notary Public Percival B. Catane;

            That the tenant of this land is a certain Librado Aro, and he knew of the transfer of ownership in my favor;

            . . .." (Annex "A", p. 11, Record; Emphasis supplied.)

            The husband of the private complainant, Leo Q. Araño confirmed this statement when he admitted during his direct testimony in the court below that appellant Librado Aro is indeed their tenant, thus:   TSacID

"xxx                    xxx                    xxx

Q         Do you know a certain person by the name of Librado Aro?

A         Yes, he is the tenant of our land in Molatohan, Lopez Jaena.

xxx                    xxx                    xxx

Q         You said he is your tenant, where is the land he is tenanting?

A         In Molatohan Bajo, Lopez Jaena." (TSN, pp. 10-11, July 18, 1994; Emphasis supplied.)

            Even the mother of complainant Maylyn, Dolly Horilleno Abuton, from whom the former purchased part of the subject property, acknowledged during her testimony on rebuttal their tenancy relationship with the accused appellant, thus:

"Q        Do you know Librado Aro?

A         Yes.

Q         Is he in court today?

A         Yes.

Q         Will you please point to him?

A         (The Witness pointed to a certain person sitting on the bench inside the courtroom who when asked his name answered Librado Aro.)

Q         How come you know him?

A         I know him because he is the tenant of my cocoland." (TSN, pp. 14-15, February 13, 1995)

            Confirming the testimonies of the above prosecution witnesses were the following documentary evidence, to wit:

1.         The Field Investigation Report dated January 31, 1992 (Exh. "6", pp. 154-162, Record) signed by Esterlita Mangoncia and Lorimer P. Clarin, Barangay Agrarian Reform Chairman and Municipal Agrarian Reform Officer, respectively, of Lopez Jaena, Misamis occidental, showing that the only tenant or farmer beneficiary of the land owned by the private complainant is the appellant, thus:

"FIELD INVESTIGATION REPORT

Name of Land Owner      : Maylen A. Araño      /x/ Voluntary Offer to Sell

Postal Address                : Oroquieta City          / / Compulsory

Acquisition

Property location             : Molatuhan Alto, Lopez Jaena, Mis. Occ.

xxx                    xxx                    xxx

            LAND CONDITION/SUITABILITY TO AGRICULTURE

2.1    (x)     Subject property is presently being cultivated (refer to D)

         ( )      Subject property is presently idle

         ( )      Subject property has never been cultivated

xxx                    xxx                    xxx

            FARMER BENEFICIARIES (Use additional sheet if necessary)

ACTUAL OCCUPANTS:

Name            Tenurial           Area                  Crops               Lease

Sharing

                     Status             Cultivated          Planted             Rental/Ha.

Arrangement

Librado Aro                 Lessee            9.0719 Has.       Coco                155.00/Ha.

xxx                    xxx                    xxx"

2.         The order dated September 18, 1992 issued by the DARAB in connection with the ejectment case filed by Maylyn Araño against appellant before the Department of Agrarian Reform Adjudication Board (DARAB), Region X, Carmen, Cagayan De Oro City, declaring, thus:   ASEcHI

            "Acting on the manifestation of complainant by counsel, to the effect that she is amenable to give due course to the on-going processing for voluntary offer to sell (VOS) of her subject landholding and hence defers to said Administrative proceedings in lieu of the instant case, this Adjudicator deems it expedient to have the instant case dismissed without prejudice, as it hereby so orders.

            Parties are hereby enjoined to observe the sharing/rentals heretofore practiced or observed by them, until the landowner shall have been compensated under the VOS, and the beneficiary secured in the land area allocated to him.

            SO ORDERED." (Exh. "1", p. 150-A, ibid.)

            Indeed, from the foregoing evidence, both oral and documentary, it is difficult to comprehend how the trial court arrived at the conclusion that appellant is a mere "caretaker" and not a legitimate tenant or a lessee of the land owned by spouses Leo and Maylyn Araño. The agricultural tenancy relationship between the private complainant and the appellant have been established with reasonable certainty. A tenant is defined, thus:

            "Tenant refers to a person who, by himself or with the aid of his immediate farm household, cultivates the land belonging to or possessed by another with the latter's consent and shares the produce with such landowner or landholder under the share tenancy system or pays to the latter a price certain or ascertainable in produce or money or both under the leasehold tenancy system."

            As held by the Supreme Court in the case of Santos vs. CA, 246 SCRA 223 citing (Bacanda vs. Baguio, 189 SCRA 194; Isidro vs. CA, 228 SCRA 503), thus:

            "The essential requisites of tenancy relationship are: (1) the parties are the landowner and the tenant; (2) the subject is agricultural land; (3) there is consent; (4) the purpose is agricultural production; (5) there is personal cultivation; and (6) there is sharing of harvest between the parties. All these requisites must concur in order to create a tenancy relationship between the parties.

            It therefore follows that appellant is a share holder or joint owner of the produce of the land, thus having a de jure possession of his harvests who has a corresponding obligation to turn over to the land owner a part of the harvests pertaining to the latter. This tenurial arrangement is even admitted by the mother of private complainant Maylyn Abuton who testified that the appellant has been remitting the landowner's share of the land's produce to Maylyn since the latter bought the land from her in 1984, thus:

"Q        Do you know to whom did Librado Aro or his representative remit the share of the landowner of that land, after 1984?

A         After 1984 he remits it to my daughter." (TSN, pp. 14-15, February 13, 1995; Emphasis supplied.)

            Foregoing considered one of the essential elements of theft, which is the taking of the property belonging to another is absent. A tenant cannot be held liable of theft on a charge of taking away the crop raised by him because the liquidation of a tenant's account does not make the landlord owner of the farmer's share in the harvest until delivery thereof is made to the latter.

            In U.S. vs. Clarin (17 Phil. 84) the juridical relation between landlord and tenant is similar to that which exists between partners and the tenant not only had material but juridical possession as well. Until a division between them of the harvest is made, the appropriation by tenant of the produce does not constitute theft.   TAECSD

            If complainant's share in the harvest of the land under her has already been pre-determined and her account has also settled, the act of the respondent in carting away her share in the harvest would clearly constitute theft. But this is not the case as adverted to before the latter's share thereof had been determined and assigned to her. Utmost, the liability of the appellant under the circumstances of the case is civil. (People vs. Tirio, Jr. CA-G.R. No. 01157-CR May, 12, 1964).

            In this connection, we find it worthy to mention the case of U.S. vs. Julian Reyes, G.R. No. 2867, September 11, 1906, thus:

            "The Attorney-General is of the opinion that the crime committed was not that of theft for the reason that, as he says, there was no apoderamiento of the property of another, and suggests that the crime committed was rather that of estafa, thus apparently accepting the view of the counsel for the defendant, as expressed on page 5 of the latter's brief.

            As a matter of fact the defendant could have harvested and trashed the crop in question. This he could have done by reason of his possession, both de facto, and de jure. He was in possession of the palay of which he freely disposed without taking or abstracting the same from anyone, and he had a right to lawfully disposed of an aliquot part of the crop. If he had disposed of all of the crop his action would have been unlawful. His unlawful disposition of the share belonging to his partner or joint owner (such contract being governed by the provisions relative to the contract of partnership, by the stipulation of the parties, and by the custom of the country as provided in article 1579 of the Civil Code) was undoubtedly a violation of their contract and a trespass upon the rights of another but not an act constituting the crime of theft. If the defendant was lawfully in possession of the rice he certainly did not, when he disposed of it, take it or abstract it from another. Such taking and abstracting is what constitutes the crime of theft."

            Even on the assumption that accused is a lessee under the leasehold tenancy system the case of Carreon vs. Flores, Administrative Case No. 111-MJ, May 30, 1975, 64 SCRA 238, our Supreme Court is relevant.

            "Complainant as an agricultural lessee could not legally convicted for theft because the essential elements of unlawful taking and that the property belongs to another were lacking. Even assuming that complainant had intended to steal the little more than one cavan of the remaining five cavanes, he had been relieved under the CAR decision of all liability for rentals, since he had already delivered (by way of deposit) more palay than he was legally obligated under the Agricultural Land Reform Code establishing a 25% rental (share) for the landowner. He could not be conceivably be accused, much less found guilty, of stealing the five cavanes which he had no more obligation to turn over or to account for, since they entirely belonged to him as part of the remaining mass of palay after he had delivered (and deposited) the rental (share) due to the landowner. The charge of theft against complainant thus amounted to an impossible crime since he could not steal what entirely belonged to him.

            This was duly emphasized in the memorandum filed for the complainant (as accused) with respondent judge, thus: "the relation between the complainant and defendant is one of the leasehold tenancy, and in such relation, the tenant's failure to pay the rental is not and cannot, be ground to send him to jail for theft — especially in this case where defendant was relieved of any responsibility to pay for the rental or share of the complainant with respect for that 'Panag-araw' crop of 1967. Even admitting, therefore, for the sake of argument that for the 'Panag-araw' crop of 1967 your accused didn't pay the rental to the owner, he may be ejected from the land (Sec. 36 of R.A. 3844) but he cannot, because of such failure, be sent to jail for theft."   SCHIcT

            As can be gleaned from the foregoing, appellant's act of misappropriating the share belonging to the private complainant or his failure to turn over part of the proceeds of his harvests would undoubtedly constitute an act violating the rights of another but not an act constituting the crime of theft, there being no indispensable element of unlawful taking of a property belonging to another considering that the appellant had the de jure possession of the same.

            In view of the above discussions, we deem it unnecessary to pass upon the other issues raised by the appellant.

            WHEREFORE, the appealed decision is hereby REVERSED and accused-appellant Librado Aro is ACQUITTED of the crime charged. No pronouncement as to costs.

            SO ORDERED.

            Abad Santos, Jr. and Callejo, Sr., JJ., concur.