G.R. No. L‑3645
September 26, 1907
United States, plaintiff‑appellee
v.
Emeterio Dacanay, defendant‑appellant

—

FACTS
– Emeterio Dacanay, a constabulary sergeant, and his men entered Alimodian, seized a female carabao and two calves belonging to Sixto Tabiano (as represented by a young cattleman), and took them to the Leon barracks.
– The animals were kept three days; thereafter Dacanay ordered their removal and sold them to a Chinese buyer for ₱140, claiming the animals were his wife’s property.
– The owner, Laurencio Acero, proved ownership; the trial court found Dacanay guilty of theft and sentenced him to five months’ imprisonment, ordering restitution of the animals.
– Dacanay appealed, contending that the seizure was made with the consent of the cattleman and Tabiano, and that the subsequent sale, if criminal, would constitute estafa, not theft.

ISSUE
Whether the acts attributed to Dacanay satisfy the statutory elements of theft under Article 517 of the Penal Code, or whether, given the apparent consent of the possessor, the proper charge, if any, is estafa.

RULING
– Theft requires taking possession against the will of the owner; consent negates the essential element of “seizure” for theft.
– Evidence showed the cattleman did not object to the taking, and Tabiano made no protest; thus the taking was not “against the will” of the owner.
– Consequently, the factual basis for a theft conviction is absent. Even if a deceitful sale occurred, it falls under estafa, a distinct offense.
– Because the complaint charged only theft, the court acquits Dacanay of theft with costs de officio, but does not preclude filing a separate complaint for estafa.

Disposition: Acquittal of Emeterio Dacanay on the charge of theft; costs awarded to the State; permission to institute a new action for estafa if warranted.