Republic of the Philippines

Regional Trial Court

11th Judicial Region
Branch 6
Mati City, Davao Oriental

People of the Philippines,

Complainant, Criminal Case No. 6990-17

FOR: Qualified Theft

-versus-

Ramon Benaning, Nelito Benaning,

Albert Benaning, and Julius Benaning,
Respondents,
x---------------------/

MOTION FOR JUDICIAL DETERMINATION OF

PROBABLE CAUSE AND RECALL OF WARRANT OF
ARREST

COMES NOW, accused Ramon Binaning, Nelito Binaning,

Albert Binaning, and Julius Binaning, through the Public Attorney’s
Office and unto this Honorable Court, most respectfully submits this
Motion based on the following:

1. THE EVIDENCE PRESENTED CLEARLY FAILS TO

SUPPORT THE EXISTENCE OF PROBABLE CAUSE
THAT WILL SUPPORT THE INDICTMENT OF THE
RESPONDENTS FOR THE CRIME OF QUALIFIED
THEFT;

2. THERE IS NO PROBABLE CAUSE TO WARRANT THE

ARREST OF THE RESPONDENTS FROT HE CRIME
CHARGED

FACTS AS PROVIDED BY THE STATE

 Complainant avers that he bought the property subject matter of
this case from Restituto Benaning, Sr. on May 12,2008. He cultivated,
improved and enjoyed the product of the said land without
interference or disturbance from the respondents.
On August 31, 2016, respondents Ramon Binaning, Nelito
Binaning, Albert Binaning and Julius Binaning harvested 1,800 nuts
from the said land without the knowledge and consent of the
complainant.

Complainant reported the incident to the Municipal Police

Station of Caraga, Davao Oriental. He substantiated his complaint
with the Deed of Sale and Police Blotter.

FACTS AS PROVIDED BY THE RESPONDENTS

The respondents, in their counter-affidavit, aver that the subject

land on which we allegedly commit the crime is under the name of
Restituto Benaning, with Property Identification No. 064-05-0016-
001011 and described as Lot # 1521. Attached herewith is a copy of the
Tax Declaration of Real Property containing the aforementioned
details, duly marked as Annex “A”.
That respondents are the children and grand-son of the late
Restituto Benaning, who died on October 5, 2008. As such, being the
living descendants of the aforementioned, they are the true and
rightful owners of the subject land, including the fruits of the same.
They also do not deny the existence of a transaction between the late
Restituto Benaning and Desiderio Burgos, however, if there was any
transaction between them, it was not one for sale but for a contract of
mortgage executed sometime in the year 2002, in which the Desiderio,
being the mortgagee, had the right to harvest the fruits of the land as
payment of the mortgage for a period of 8 years. Attached herein is the
affidavit of Vicente Binugsudan, being the main witness in the
execution of the mortgage between Restituto and Desiderio Burgos,
duly marked as Annex “B”.
After the lapse of the eight-year period, as agreed upon in the
Contract of Mortgage, herein respondents tried to communicate with
Desiderio Burgos to inform him of their interest to take back the land,
but to no avail. The latter consistently made excuses not to
entertain/heed the request of the respondents, in obvious effort to
evade them. However, being men of fairness and conscience,
respondents did not enter nor disrupt the possession of Desiderio over
the said lot.
After a few years, respondents again tried to take the land back
from Desiderio Burgos, but this time, the later was singing a different
tune. Desiderio now claims that the said land no longer belonged to
the respondents as the same was sold to him by Restituto Benaning.
Respondents made repeated efforts to demand from Desiderio the said
Deed of Sale; Respondents even made use of the Barangay Office to try
and compel Desiderio to present the said document.
Respondents, relying on the knowledge that the only agreement
between Restituto and Desiderio is one for mortgage and on public
documents indicating ownership over the said lot to be with Restituto
Benaning, decided to enter the lot and harvest the fruits thereon. They
did not, however, intitate the said act in bad faith. As a matter of fact,
in exercise of diligence and respect, respondents even informed the
Barangay Office of Santiago, in the Municipality of Caraga, that they
will start harvesting the fruits of the lot belonging to them, currently
in the possession of Desiderio Burgos. Attached hereunto is a copy of
the said report issued by the Office of the Punong Barangay of
Barangay Santiago, Caraga, Davao Oriental, duly marked as Annex
“C”.

THE CHARGE

Plaintiff, herein, represented by the Mati City Prosecution Office,

instituted before this Honorable Court an information charging all
four accused with the offense of Qualified theft, with the said
Information reading as follows:

“That on or about August 31, 2016 in the Municipality of Caraga,

Province of Davao Oriental and within the jurisdiction of this Honorable
Court, the above-named accused, in conspiracy with each other, with intent
to gain, did then and there carted away One Thousand Eight Hundred
(1,800) pieces of Coconut Fruits from the coconut plantation of Desiderio
B. Burgos Jr., with an estimated value of sixteen-thousand five hundred
Pesos, without the latter’s consent, to his damage and prejudice.”
 ASSIGNMENT OF ERROR IN THE PROSECUTIONS
FINDING OF PROBABLE CAUSE

The Investigating Prosecutor, in resolving the case, gave full

credence to the evidence submitted by the complainant despite lack of
sufficient and substantial basis thereof.

In his resolution dated December 6, 2016, the investigating

prosecutor found probable cause to indict the respondents of the crime
charged, because according to the prosecution, the Deed of Sale
presented by the complainant, is for all intents and purposes,
presumed valid and that the defense of ownership is evidentiary in
nature that may be passed upon after a full blown trial.

While we submit that the Deed of Sale presented by complainant

may be considered valid on its face, the same should not have been
used in determining probable cause to charge the respondents in this
case. The purported Deed of Sale only came into light when the instant
complaint was filed against the respondents. It was not shown, nor
presented to the respondents despite their repeated efforts to contact
Desiderio, its holder, for the purpose of clarifying the true and correct
instance of the subject property. It would have been different had the
respondents had prior knowledge of this purported sale, and the
existence of such a Deed, as it would have readily negated any interest
on their part to claim the fruits of the said property. The fact that the
existence of the alleged sale was kept secret only bolsters the fact that
the respondents in this case had clear conscience when they entered
the subject property, as there is no showing they had any prior motive
to undermine the alleged ownership of the complainant in this case.

Furthermore, the investigating prosecutor erred in finding

probable cause to indict the respondents in this case for Qualified Theft
when it failed to consider the fact that the elements of the said crime is
lacking in this case. Article 308 of the Revised Penal Code (RPC), which
defines Theft, provides:

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 latters consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its owner;
 2. Any person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits or objects
of the damage caused by him; and
3. Any person who shall enter an enclosed estate or a field
where trespass is forbidden or which belongs to another and without
the consent of its owner, shall hunt or fish upon the same or shall
gather fruits, cereals, or other forest or farm products.

Theft is qualified under Art. 310 of the RPC, when it is, among
others, committed with grave abuse of confidence, thus:

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 article, 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 a plantation, 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 disturbance. (emphasis ours)

Thus, the elements of Qualified Theft of coconuts are as follows:

1. Taking of personal property;

2. That the said property belongs to another;

3. That the said taking be done with intent to gain;

4. That it be done without the owner’s consent;

5. That it be accomplished without the use of violence or

intimidation against persons, nor of force upon things;

6. That the subject of such theft are coconuts taken from the
premises of a plantation (emphasis ours)

In the instant case, the second and third elements are

lacking. It is again of moment to consider that the alleged sale
was never made known to the respondents despite their efforts
to communicate with the complainant. As far as they are
concerned, they were under the full belief that no such sale
existed and that the land belonged to their ascendant, Restituto
Benaning. Upon execution of the complained act, herein
respondent were under the belief that they were harvesting what
was rightfully theirs. As such, no criminal intent could be
attributed to the said act of harvesting the coconuts.
 As held by the Supreme Court in the case of Lecaroz v.
Sandiganbayan, G.R. No. 130872, and cited in the case of Violeta
Bahilidad vs People of the Philippines, G.R No. 185195, Evil
intent must unite with the unlawful act for a crime to exist.
Actus non facit reum, nisi mens sit rea. There can be no crime
when the criminal mind is wanting. Ignorance or mistake as to
particular facts, honest and real, will exempt the doer from
felonious responsibility. (emphasis ours)

As for the third element, the Supreme Court, in the case of

People of the Philippines vs. Ricky Ladiana y Davao, G.R. No.
174660, has defined intent to gain or animus lucrandi as an
internal act which can be established through the overt acts of
the offender, and it may be presumed from the furtive taking of
useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the
perpetrator.

While it is submitted that indeed, coconuts were taken by

the respondents, thus actual gain was present, there was no
intent to gain or animus lucrandi, which is an important element
of the crime charged. As held by the Supreme Court in the 2013
case of Ringor v. People, G.R. No. 198904, Actual gain is
irrelevant as the important consideration is the intent to gain
or animus lucrandi. The actions of the respondents were not in
any way done to intentionally deprive another of his/her
property. It was brought about by clear and honest belief, in
good faith, that they were the rightful owners of the subject
property. As a matter of fact, respondents even made known
their intention to enter the subject lot by informing the Barangay
Office of the Punong Barangay of Santiago Caraga, clearly
showing no ill motive on their part.

Indubitably, the intention of herein defendants are not

criminal and the elements of the crime charged are lacking in this
case. Therefore, there exist no grounds for the finding of
probable cause to hold respondents for trial for the crime
charged.

The propriety of the Motion for Judicial

Determination of Probable Cause and Recall of
Warrant of Arrest
 In the case of Teresita Tanghal vs. Hon. Pedro Gutierrez,
G.R. No. 150185, May 27 2004, the Supreme Court held;

The constitutional duty of this Court in criminal litigations is not

only to acquit the innocent after trial but to insulate, from the start,
the innocent from unfounded charges. For the Court is aware of the
strains of a criminal accusation and the stresses of litigation which
should not be suffered by the clearly innocent. The filing of an
unfounded criminal information in court exposes the innocent to
severe distress especially when the crime is not bailable. Even an
acquittal of the innocent will not fully bleach the dark and deep
stains left by a baseless accusation for reputation once tarnished
remains tarnished for a long length of time. The expense to establish
innocence may also be prohibitive and can be more punishing
especially to the poor and the powerless. Innocence ought to be
enough and the business of this Court is to shield the innocent
from senseless suits right from the start. (emphasis ours)

Likewise, in the case of Maca-Angcos Alawiya, G.R. No.

164170, April 16, 2009, the Supreme Court reiterated not only the
sole discretion of Courts to dispense with the cases filed before
it but also emphasized the authority of the courts to determine
the existence of probable cause despite the prior determination
thereof on the part of the Investigating Prosecutor, thus:

However, once a complaint of information is filed in court, any

disposition of the case such as its dismissal or continuation rests on
the sound discretion of the court. Trial judges are not bound by the
Secretary of Justice’s reversal of the prosecutor’s resolution finding
probable cause. Trial judges are required to make their own
assessment of the existence of probable cause, separately and
independently of the evaluation by the Secretary of Justice.

xxx

Once the information is filed with the trial court, any disposition of
the information rests on the sound discretion of the court. The trial
court is mandated to independently evaluate or asses the existence
of probable cause and it may either agree or disagree with the
recommendation of the Secretary of Justice. The trial court is not
bound to adopt the resolution of the Secretary of Justice. Reliance
alone on the resolution of the Secretary of Justice amounts to an
abdication of the trial court’s duty and jurisdiction to determine
the existence of probable cause.

Likewise, in the case of Lily Sy vs. Hon. Secretary of Justice

Ma. Merceditas N. Gutierrez, Benito Fernandez Go, Berthold
Lim, Jennifer Sy, Glenn Ben Tiak Sy and Merry Sy, G. R. No.
171579, November 14, 2012, the Supreme Court ruled that;

The Court adheres to the view that a preliminary investigation serves not
only the purposes of the State, but more importantly, it is a significant part
of freedom and fair play which every individual is entitled to. It is thus the
duty of the prosecutor or the judge, as the case may be, to relieve the
accused of going through a trial once it is determined that there is no
sufficient evidence to sustain a finding of probable cause to form a sufficient
belief that the accused has committed a crime.

PRAYER

Wherefore, premises considered, accused respectfully

prays, that:

1. The abovementioned criminal case be dismissed for

lack of probable cause to hold the respondents for trial,
and;

2. The respondents be ordered immediately released from

further undue detention.

RESPECTFULLY SUBMITTED

This 22nd day of May, 2017 at the City of Mati, Davao Oriental,
Philippines.

PUBLIC ATTORNEY’S OFFICE

Counsel for Petitioner
DOJ Building, Capitol Hills
City of Mati, Davao Oriental
Tel. No. (087) 3884-559

BY:
Atty. Pacifico Ismael M. Castillones
Roll of Attorneys No. 65397
MCLE Compliance Exempted

copy furnished:
Office of the Provincial Prosecutor
Mati, Davao Oriental