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Republic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. L-12155 February 2, 1917

THE UNITED STATES,plaintiff-appellee,vs.PROTASIO EDUAVE,defendant-appellant.

Manuel Roxas for appellant.

Attorney-General Avancea for appellee.

MORELAND, J.:

We believe that the accused is guilty of frustrated murder.

We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow

was directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he

had killed, and threw the body into the bushes. When he gave himself up he declared that he had

killed the complainant.

There was alevosia to qualify the crime as murder if death had resulted. The accused rushed

upon the girl suddenly and struck her from behind, in part at least, with a sharp bolo, producing afrightful gash in the lumbar region and slightly to the side eight and one-half inches long and two

inches deep, severing all of the muscles and tissues of that part.

The motive of the crime was that the accused was incensed at the girl for the reason that she had

theretofore charged him criminally before the local officials with having raped her and with

being the cause of her pregnancy. He was her mother's querido and was living with her as such atthe time the crime here charged was committed.

That the accused is guilty of some crime is not denied. The only question is the precise crime ofwhich he should be convicted. It is contended, in the first place, that, if death has resulted, the

crime would not have been murder but homicide, and in the second place, that it is attempted and

not frustrated homicide.

As to the first contention, we are of the opinion that the crime committed would have been

murder if the girl had been killed. It is qualified by the circumstance of alevosia, the accusedmaking a sudden attack upon his victim from the rear, or partly from the rear, and dealing her a

terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it

was made treacherously; and that being so the crime would have been qualified as murder ifdeath had resulted.

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As to the second contention, we are of the opinion that the crime was frustrated and not

attempted murder. Article 3 of the Penal Code defines a frustrated felony as follows:

A felony is frustrated when the offender performs all the acts of execution which should

produce the felony as a consequence, but which, nevertheless, do not produce it by reason

of causes independent of the will of the perpetrator.

An attempted felony is defined thus:

There is an attempt when the offender commences the commission of the felony directly

by overt acts, and does not perform all the acts of execution which constitute the felonyby reason of some cause or accident other than his own voluntarily desistance.

The crime cannot be attempted murder. This is clear from the fact that the defendant

performed all of the acts which should have resulted in the consummated crimeand voluntarilydesisted from further acts. A crime cannot be held to be attempted unless the

offender, after beginning the commission of the crime by overt acts, is prevented, against hiswill, by some outside cause from performing allof the acts which should produce the crime. Inother words, to be an attempted crime the purpose of the offender must be thwarted by a foreign

force or agency which intervenes and compels him to stop prior to the moment when he has

performed all of the acts which should produce the crime as a consequence, which acts it is hisintention to perform. If he has performed all of the acts which should result in the consummationof the crime and voluntarily desists from proceeding further, it can not be an attempt. The

essential element which distinguishes attempted from frustrated felony is that, in the latter, there

is no intervention of a foreign or extraneous cause or agency between the beginning of thecommission of the crime and the moment when all of the acts have been performed which should

result in the consummated crime; while in the former there is such intervention and the offender

does not arrive at the point of performing allof the acts which should produce the crime. He isstopped short of that point by some cause apart from his voluntary desistance.

To put it in another way, in case of an attempt the offender never passes the subjective phase ofthe offense. He is interrupted and compelled to desist by the intervention of outside causes before

the subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective phase is completely passed.

Subjectively the crime is complete. Nothing interrupted the offender while he was passing

through the subjective phase. The crime, however, is not consummated by reason of theintervention of causes independent of the will of the offender. He did all that was necessary to

commit the crime. If the crime did not result as a consequence it was due to something beyond

his control.

The subjective phase is that portion of the acts constituting the crime included between the act

which begins the commission of the crime and the last act performed by the offender which, with

the prior acts, should result in the consummated crime. From that time forward the phase isobjective. It may also be said to be that period occupied by the acts of the offender over which he

has controlthat period between the point where he begins and the points where he voluntarily

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desists. If between these two points the offender is stopped by reason of any cause outside of his

own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is

not so stopped but continues until he performs the last act, it is frustrated.

That the case before us is frustrated is clear.

The penalty should have been thirteen years of cadena temporal there being neither aggravating

nor mitigating circumstance. As so modified, the judgment is affirmed with costs. So ordered.

Torres and Araullo, JJ.,concur.

Carson and Trent, JJ., concur in the result.

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G.R. No. 31770, People v. Hernandez, 54 Phil. 122

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

December 5, 1929

G.R. No. 31770

THE PEOPLE OF THE PHILIPPINE ISLANDS,plaintiff-appellee,

vs.

ANTONINO HERNANDEZ,defendant-appellant.

Crispin Oben for appellant.

Attorney-General Jaranilla for appellee.

AVANCEA, C.J.:

In the judgment appealed from the appellant was convicted of arson and sentenced to eight years

and one daypresidio mayor, with the accessaries of law, and the costs.

On February 3, 1929, Miguel Dayrit, the offended party, was living with his children in his house

situated in the barrio of Duque, municipality of Mabalacat, Province of Pampanga. At a little past

midnight on that date, and after Miguel Dayrit had retired, he noticed that the thatched roof of his

house was on fire. He got up to fetch some water with which to extinguish the fire, when,

looking out of the window, he saw the appellant beside the house, carrying a stick (Exhibit A).

Miguel Dayrit shouted for help, and started to put out the fire, which he succeeded in doing, after

a small part of the roof had burned. In answer to his cries for help, Artemio Tanglao repaired to

the place and saw the defendant running away. Daniel Mallari also came, and on his way to the

house met the defendant.

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The appellant knew that Miguel Dayrit and his children lived and were in the house that night.

The testimony of the offended party, corroborated by that of Artemio Tanglao and Daniel

Mallari, establishes beyond all doubt the fact that it was the appellant who set fire to the house.

The stick which Miguel Dayrit saw in the appellant's possession on that night was found leaning

against the house with the end burnt and a rag soaked with petroleum dangling from it. Daniel

Mallari recognized it as the stick which the appellant used in getting guava fruits.

It should be noted, moreover, that prior to the crime, the appellant and the offended party,

Miguel Dayrit, had some disagreements because the offended party suspected that the appellant

was stealing his paddy piled up behind his house. The offended party communicated his

suspicions to the barrio lieutenant, who, together with the complainant, went to the appellant's

house, but the latter armed with a bolo, barred their way, saying that he would cut them to pieces,

and that he recognized no authority. This characteristic violence on the part of the appellant was

also shown when, in pursuance of this information, he was arrested; for he refused to give

himself up.

The trial court held that the crime committed was only frustrated arson. We agree with the

Attorney-General that the crime was consummated. The appellant did in fact, set fire to the roof

of the house, and said house was in fact partially burned. With this, the crime of arson was

consummated, notwithstanding the fact that the fire was afterwards extinguished, for, once the

fire has been started, the consummation of the crime of arson does not depend upon the extent of

the damage cause. This court has so held in the cases of United States vs. Go Foo Suy and Go

Jancho (25 Phil., 187) andUnited States vs. Po Chengco (23 Phil., 487).

The crime of arson having been consummated, as it appears from the facts thoroughly proved,

article 549 of the Penal Code is applicable herein, with the corresponding penalty of cadena

temporal to life imprisonment. And as the aggravating circumstance of nighttime must be taken

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into consideration, as having been doubtless sought by the appellant in order to insure the

commission of the crime, the penalty must be imposed in its maximum degree.

In view of these considerations, the judgment appealed from is modified, and in accordance with

article 549 of the Penal Code the appellant is found guilty of the crime of arson, committed in a

dwelling, knowing that within it were the offended party and his children; and, considering one

aggravating circumstance in the commission of the crime, the defendant is sentenced to life

imprisonment, with the accessaries, and the costs.

The appellant is an old man, about 85 years of age, and in view of this, and of the fact that the

damage caused was very slight, the Attorney-General recommends that, in pursuance of the

second paragraph of article 2 of the Penal Code, these facts be explained to the Executive, for the

exercise of his clemency to such an extent as he may deem proper. The suggestion is accepted,

and it is hereby ordered that the clerk forward a copy of this decision, once it becomes final, to

the Governor-General for consideration. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

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G.R. No. 14128, U.S. v. Valdes, 39 Phil. 240

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

December 10, 1918

G.R. No. 14128

THE UNITED STATES,plaintiff-appellee,

vs.

SEVERINO VALDES Y GUILGAN,defendant-appellant.

Ariston Estrada for appellant.

Attorney-General Paredes for appellee.

TORRES, J.:

This cause was instituted by a complaint filed by the prosecuting attorney before the Court of

First Instance of this city, charging Severino Valdes y Guilgan and Hugo Labarro y

Bunaladi, aliasHugo Navarro y Bunadia, with the crime of arson, and, on the 20th of May of the

present year, judgment was rendered whereby Severino or Faustino Valdes u Guilgan was

sentenced to six years and one day ofpresidio mayor and to pay one-half of the costs. From this

judgment this defendant appealed. With respect to Hugo Labarro or Navarro, the proceedings

were dismissed with the other half of the costs de officio.

Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent

from the house in which he was living his family, at No. 328, San Rafael Street, San Miguel,

Mrs. Auckback, who appears to have been a resident of the neighborhood, called Mrs. Lewin and

told her that much smoke was issuing from the lower floor of the latter's house, for until then

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Mrs. Lewin had not noticed it, and as soon as her attention was brought to the fact she ordered

the servant Paulino Banal to look for the fire, as he did and he found, so asked with kerosene oil

and placed between a post of the house and a partition of the entresol, a piece of a jute sack and a

rag which were burning. At that moment the defendant Valdes was in the entresol, engaged in his

work of cleaning, while, the other defendant Hugo Labarro was cleaning the horses kept at the

place.

On the same morning of the occurrence, the police arrested the defendants, having been called

for the purpose by telephone. Severino Valdes, after his arrest, according to the statement,

Exhibit C, drawn up in the police station, admitted before several policemen that it was he who

had set the fire to the sack and the rag, which had been noticed on the date mentioned. and he

also who had started the several other fires which had occurred in said house on previous days;

that he had performed such acts through the inducement of the other prisoner, Hugo Labarro, for

they felt resentment against, or had trouble with, their masters, and that, as he and his coaccused

were friends, he acted as he did under the promise on Labarro's part to give him a peso for each

such fire that he should start.

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police

station, although he denied having placed the rag and piece of jute sack, soaked with kerosene, in

the place where they were found, and stated, that it was the servant Paulino who had done so. He

alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that

he had gathered together, which is contrary to the statement he made in the police station, to wit,

that he had set the fire to the said rag and piece of sack under the house.

For lack of evidence and on his counsel's petition, the case was dismissed with respect to the

other defendant Hugo Labarro.

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Owing to the repeated attempts made for about a month past, since Severino Valdes Began to

serve the Lewin family, to burn the house above mentioned. occupied by the latter and in which

this defendant was employed, some policemen were watching the building and one of them,

Antonio Garcia del Cid., one morning prior to the commission of the crime, according to his

testimony, saw the defendant Valdes climbing up the wall of the warehouse behind the dwelling

house, in which warehouse there was some straw that had previously been burned, and that,

when the defendant noticed the presence of the policeman, he desisted from climbing the wall

and entering the warehouse.

The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an

upright of the house and a partition of the entresol of the building, thus endangering the burning

of the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when

some of its inmates were inside of it.. This crime of provided for and punished by article 549, in

connection with articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven

perpetrator of the same by direct participation is the defendant Severino Valdes, for,

notwithstanding his denial and unsubstantiated exculpations, the record discloses conclusive

proof that it was he who committed the said unlawful act, as it was also he who was guilty of

having set the other fires that occurred in said house. In an affidavit the defendant admitted

having made declarations in the police station, and though at the trial he denied that he set fire to

the sacks and the rag which were found soaked in kerosene and burning, and, without proof

whatever, laid the blame unto his codefendant, the fact is that confessed to having set fire to a

pile of dry leaves whereby much smoke arose from the lower part of the house, but which,

however, did not forewarn his mistress, Mrs. Lewin, though she should have noticed it, and he

allowed the sack and the rag to continue burning until Mrs. Auckback noticing a large volume of

smoke in the house, gave the alarm. No proof was submitted to substantiate the accusation he

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made against the servant Paulino, who apparently is the same persons as the driver Hugo

Labarro.

The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts

conceive to the burning of said house, but nevertheless., owing to causes independent of his will,

the criminal act which he intended was not produced. The offense committed cannot be

classified as consummated arson by the burning of said inhabited house, for the reason that no

part of the building had yet commenced to burn, although, as the piece of sack and the rag,

soaked in kerosene oil, had been placed near partition of the entresol, the partition might have

started to burn, had the fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered in a connection with the

commission of the crime, and therefore the penalty of presidio mayor immediately inferior in

degree to that specified in article 549 of the Penal Code, should be imposed in its medium

degree.

For the foregoing reasons the judgment appealed from should be affirmed, with the modification

however, that the penalty imposed upon the defendant shall be given eight years and one day

ofpresidio mayor, with the accessory penalties prescribed in article 57 of the Code. The

defendant shall also pay the costs of both instances. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avancea, JJ., concur.Copyright 2007-2014PhilippineLaw.info

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Republic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. 8217 September 5, 1913

THE UNITED STATES,plaintiff-appellee,vs.

GO FOO SUY and GO JANCHO,defendants-appellants.

O'Brien and DeWitt, and Gaston M. Ashe for appellants.

Office of the Solicitor-General Harvey for appellee.

TRENT, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu, sentencing the

appellants, Go Foo Suy and Go Jancho, each to eight years and one day of cadena temporal, to

the accessory penalties provided by law, and to the payment of one-fifth of the costs of the cause

for the crime of frustrated arson. The complaint in this case also included Go Juat Chiong, GoCho Jim, and Go Quip as defendants, the first two being acquitted by the court and the last not

having been apprehended at the time of the trial.

On the night of February 24, 1912, house No. 30 on Calle Norte America of the city of Cebu was

partially destroyed by fire. While this fire was in progress, fire also broke out in house No. 26,which was separated from No. 30 by a passageway having a width near the street of about 3 meters and in the rear (where the fire in No. 30 was) of 9 meters. Both buildings were built

entirely of strong materials. The first floor of house No. 30 was occupied by Go Chico, a Chinese

carpenter. The second floor was occupied by Marcelina Sabugan, her husband, and her husband's

brother. The appellants, Go Foo Suy and Go Jancho, conducted a dry goods store in No. 26, andused the upper portion as living quarters. Antipas Paquipo and her husband, a Chinaman,

occupied the upper story of the last section in the rear of No. 26 as tenants of the appellants. The

appellants rented the entire building from its owner, Filomena Burgos. The first floor No. 26consisted of three rooms. The first was devoted to the sale of dry goods. The second was used as

an office and to store a reserve supply of dry goods. These two rooms were connected by a door.

The stairway to the upper portion of the house, as near as we are able to determine from therecord, was in the office or trastienda. The third room was a bodega, where were stored lumber,sauale, and other materials belonging to the firm. There was no communication between the

trastienda and this bodega. They were separated by a partition built partly of interwoven bamboo,

as shown in the photograph. ( Exhibit F of the prosecution.) On the said nearest No. 30 were twodoors, one leading into the tienda proper and the other into the trastienda, as near as we are able

to determine from the record, the latter being used at night by the occupants on entering and

leaving the house after the tienda had been closed.

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From the statements of the various witnesses, it is apparent that the fire in No. 30 had been

burning a considerable time before No. 26 caught fire. The witness Cuico, who lived in a nipa

shack a few meters from No. 30, stated that it was half past 2 by his watch when he firstdiscovered the fire in No. 30. The municipal president who lived "two or three minutes" from the

scene of the fire arrived after Cuico discovered it. The president brought a hose, which was first

turned on Cuico's house to dampen it so as to prevent its catching fire. Cuico also testified thatwhen fire broke out in No. 26 the fire in No. 30 was so far under control that there was no longerdanger of its spreading. Albert Bryan, an electrician, stated that he was notified of the fire by

telephone, and that just as he reached the scene fire broke out in No. 26. Miguel Bototo, a

municipal policeman and a witness for the defense, testified that he arrived at 15 minutes past 3o'clock; and that when the fire in No. 30 was about put out, fire broke out in No. 26. Pedro Noel,

another municipal policeman and also a witness for the defense, testified that he arrived at what

he thought was about 3 o'clock. He entered No. 26, warning a Chinaman (whom he identified as

the appellant Go Jancho) who was in three gathering up papers that he should leave, and then, atthe Chinaman's request, went upstairs with him to get his trunk, which they carried as far as the

stairway and then abandoned it and went downstairs and left the house. When he left the

trastienda he saw no signs of fire. He testified that he then assisted with the hose at the fire in No.30 and was so employed when the Constabulary arrived.

Lim Bian Chong, who was a guest of the appellants on the night of the fire, testified that uponthe alarm being given, he became scared and started downstairs immediately. Everyone went

downstairs ahead of him except the woman Antipas, who followed him. Upon leaving the house

he went to a plaza a short distance away, and found all the accused there. The woman Antipastestified that her husband's brother awakened her. She seized a picture and immediately ran

downstairs and went to the plaza. As she passed through the trastienda she saw the appellants

gathering up books. She returned to the house the second time to get her trunk. She saw no more

Chinamen as she left the house the second time. She denied that in her sworn declaration in thepreliminary investigation she had stated that when she left the house the second time the two

appellants were still there. Go Jancho testified that he went downstairs immediately upon

ascertaining that there was a fire, opened the safe, and took out important papers. These he put in

a sack with the aid of Go Foo Suy and Go Cho Jim, and then ordered them to open the door. GoCho Jim carried the sack out of the door. Witness remained looking for his certificates and some

receipts. A little later a policeman entered. He and the policeman then went upstairs to get the

trunk, which was abandoned at the head of the stairway. He left the house immediately, carryingnothing with him. All of his coaccused were outside of the house then, but she saw Lim Bian

Chong near the door. He went to the plaza and there found Go Foo Suy, Go Cho Jim, and Go

Juat Chiong. He ordered the latter to return and get his (Jancho's) trunk, but Go Juat Chiongcame back in a little while saying that the policeman would not let him enter the house.

Go Juat Chiong testified that he was sleeping downstairs; that he was awakened by the alarm offire and saw the appellants come downstairs and enter the office. He himself went directly

upstairs to get his trunk. He was still in the house when Lim Bian Chong and Go Quip came

downstairs. Upon coming downstairs he did not see Go Cho Jim, Go Foo Suy or Go Jancho in

the trastienda. He did not wish to say that he was the last to leave the house, but simply that hedid not notice anyone when he came downstairs. He left the house carrying his belongings and

went to the plaza, where he saw the others. Go Jancho ordered him to return to get a trunk, but

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upon reaching the house the policeman refused to allow him to enter. He saw persons inside the

house then.

Go Cho Jim testified that he was sleeping in the lower part of the house near the stairway when

he heard some one upstairs give the alarm. He got up and after he had dressed himself Go Jancho

ordered him to open the door so that he could leave with the money and books. When he openedthe door he saw no one. As he left with the money he saw some policeman outside. There

remained in the tienda Go Foo Suy, Go Jancho, and Go Juat Chiong. He did not go upstairs or

return to the house after he left it.

It will be noted that while there is some disagreement between the inmates of the house as to the

order in which they left it, none of them claim to have spent more than a few minutes in thehouse. All, further, state positively that there was no fire in the house when they left. According

to this testimony, then, they must have been standing on the plaza a considering time before No.

26 caught fire.

Captain Hemmett of the Constabulary, whose attention was attracted to the fire in the trastiendaof No. 26 immediately upon his arrival, and who went directly to that fire, stated that on entering

the trastienda he saw a policeman with four of fire Chinamen who had just come out of thetrastienda.

Pablo Navarro, the municipal policeman who on arriving went directly to the fire in No. 26,testified that he went to the door of the trastienda, and upon entering saw a Chinaman in the

doorway and three others seated at a table, one of whom was writing and identified them as

being, respectively, Go Juat Chiong and Go Jancho, Go Foo Suy and Go Cho Jim; that whenthey saw him they began to run; that he asked them why they did so as there was a fire in the

house; that he told the chief of police about this upon the latter's arrival shortly afterwards; and

that the chief the latter's him to go and arrest the Chinamen. He found and arrested two of theChinamen on the plaza.

Enrique Tabada testified that he saw Go Juat Chiong and Go Cho Jim in the house upon entering.A curtain which was on fire he tore loose and threw out of the house. Besides the Chinamen that

he saw, he heard the voices of others but could not say whatever they were outside or inside the

tienda. The policeman Batoto testified for the defense and stated that upon arriving at thetrastienda a Chinaman came up, and that acting under instructions from the policeman Tabada he

arrested the Chinaman and refused to let him enter. The sworn declaration of the chief of police,

made on February 26, contains the following statement:

The accused Go Cho Jim is the one who was arrested by me at the moment of coming out

of the door and at the time when the rear end of the bodega was broken open by order of

the president for the purpose of putting out the fire which had been discovered within.

The conflict between the statements of these witnesses and the declarations of the inmates of the

house is most evident. According to these witnesses, a number of Chinamen were found in ornear the house after the trastienda had caught fire, all of them being actually identified as the

accused persons by one or more of the witnesses; while the accused declare positively that they

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had left the building very shortly after the alarm of fire on No. 30 was given and had gone

directly to the plaza, which would make them standing there a considerate time before the fire in

No. 26 broke out. In this connection Go Jancho testified that he did not return to the store afterleaving it; that he was arrested on the plaza, and that it was not until arrived at the police station

that he learned that a fire had occurred in No. 26. Presumably, therefore, where he was standing

on the plaza, it was impossible to observe the fire. It does not seem probable that the owner of astock of goods, if prompted by good motives, would thus desert his property when there was solittle danger of personal injury. Even if the defendant' statements that they remained on the plaza

and did not go near the fire were accepted as true, only an unfavorable inference could be drawn

from such conduct.

Gil de la Cruz, an employee of the city garbage system, testified that while waiting at No. 26,

between 1 and 2 o'clock on the morning of the fire, for the cars to come and carry away the pailshe had collected, he saw Go Jancho coming into the passageway between Nos. 30 and 26 from

the Street Norte America, and go as far as the kitchen of No. 30 and then return to the street

again. Jancho was fully dressed with the exception of a hat. Jancho declared that after going to

bed that evening about 11 or 12 o'clock he did not get up until the alarm of fire awakened him.

Three fires were discovered in No. 26 almost simultaneously. One was in the bodega, wheresome rolls of sauale lying on the floor were fire. This fire was practically in the center of the

room. One was in the trastienda where bolts of cloth stored on impromptu shelves made of boxes

piled on above the other were afire. The bed in the living quarters of the woman Antipas also

caught fire.

As to the fire in the room of the woman Antipas, counsel for the defense say in part: "This,"

referring to the testimony of the chief of police, "is the only evidence as to how and when thehole was burnt in the bottom of the bed."

Again they say: "Several witnesses for the prosecution were allowed to give hearsay evidence tothe effect that the bed was burn in the room of the woman, but nobody testified that they saw it

burning or that they extinguished the fire. As has been noted, the fiscal asked a few adroit

questions relating to the bed, and then promptly changed his questions to other topics. This is sonoticeable that there is only one deduction to be drawn from it, namely, that nothing definite was

known about the fire in that room and that the testimony relating to it is mere conjecture."

Aldanese, the chief of police, identified Exhibit G as a photograph of the burnt bed, and pointed

out the bed standing at the window as shown in Exhibit B. He also testified that the bed was

burned at the same time the other fires in No. 26 occurred.

The witness Bryan testified that when he entered the trastienda there was a fire on the second

floor and that he could hear it burning. He stated that he did not go upstairs. Captain Lucastestified that he did not go upstairs. The policeman Tabada testified as follows:

When we saw fire in the rear of this house (No. 26) we called to the firemen to put it out,and when the fire which was burning in the street was put out, we saw also that there was

a fire in the lower part of the same house. As it was difficult to put out the fire which was

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in the lower part of the house, we went to the bodega underneath the part where the fire

had occurred, and tore off some pieces of zinc . . . .

The first question put to him on cross-examination was:

Q. So that the first fire you saw in house No. 26 was upstairs?

A. Yes, sir.

Q. Afterwards you saw there was also a fire in the place below the fire, where the

store was?

A. Yes, sir.

Pedro Noel, another municipal policeman, who testified for the defense, stated that the three fires

in No. 26 were burning at the same time; that when he saw the fire in the window upstairs, he

said to the man who had charge of the house, "Let us throw water on this fire." In another placehe says that after throwing water on the bed they went back to No. 30 and heard one Frusctuoso

Ramos crying "Here is another fire," and on going back began to put out the fire in the bodega.

Aside from this evidence of the witnesses, an empty bottle which had contained petroleum and asmall kerosene lamp, also empty, were found underneath the bed. The photograph of the bed was

also admitted as evidence and shows that only the matting which formed its bottom and the

furnishing were burned. This evidence establishes the fact that there was a fire upstairs at thesame time the other fires in No. 26 were burning. We confess our inability to perceive any

ulterior motive on the part of the prosecution in neglecting to make a more extended

investigation of this fire. Counsel for the defense were equally at liberty to sift this matter to the

bottom on cross-examination of the witnesses for the prosecution who testified in regard to this

fire, and in the direct examination of their own witness, Pedro Noel. It certainly cannot be deniedthat this bed was afire at or nearly at the same time as the other two fires in No. 26, and that it

was put out. These are the important facts, and from the testimony of the witnesses Tabada andNoel, it would appear that the hose was simply directed at the window near which the bed was

standing and that the fire was easily extinguished in this manner. The chief of police testified that

there was no wind blowing at the time of the fire. Photographs submitted by the prosecution

show two nipa shacks located on the opposite side of No. 30 within 3 or 4 meters, which werenot damaged. The witness Cuico, who lived in one of these shacks, stated that it was about 3

meters from No. 30 and that it did not suffer the slighest damage from the fire. The only

openings in the side of No. 26 nearest No. 30 were two windows. From the record it appears thatat least one of these windows opened in to the trastienda and that it was closed up to the time the

fire was discovered in this room. Pieces of paper in this window were not touched by the fire.

There were two windows in the upper floor opening at the rear, the bed standing near the one

farthest from No. 30. The window nearest No. was closed when the photograph (Exhibit B) wastaken, while the other was open, and the bed in question can be seen standing near it. The record

does not show whether this window was open or closed when the fire occurred, but assuming

that it was open, sparks from No. 30 would have had to cross the passageway of 9 meters toNo. 26, as well as the additional space between the nearest wall of No. 26 and the window near

the other side, and in so doing must necessarily have described an arc, as the end walls of both

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houses were practically on a line. As noted above, the fire in No. 30 had no inclination to spread

and houses of highly inflammable material much nearer than the bed in question, and which

sparks could have reached without impediment of any kind, were not touched by the fire. Theshed or lean-to attached at No. 30 and directly between that house and No. 30 was left intact. It

seems highly improbable that sparks from No. 30 could have entered the window and set fire to

the bed. Nor does this explanation dispose of the evidence of incendiarism in the way of emptykerosene receptacles found in the room where the bed was.

Counsel for the appellants also contend that the fire in the trastienda caught from the fire in thebodega by passing through the partition between the two rooms. All the evidence of record

appears to negative this proposition. The witness Bryan, it is true, says that the fire in the

trastienda appeared to be entering through a wall, and in another place says that the flames came

from behind the wall from the burning sauale in the bodega, but a little later in his testimony hesays that there was a fire in the trastienda at the same time as the fire in the bodega was burning,

ands that although they took down many bolts of cloth looking for a possible connection between

the two fires, they could not find any signs of the flames passing from one room to another either

above or on the sides of the room. Captain Hemmett testified that he went to the house on thefollowing day and saw no signs of fire on the partition between the two rooms. Captain Lucas

said it was possible that the fire in the trastienda could have caught from the fire in the bodega,but that the fire in the bodega was more to the left. Several of the witnesses stated that only theouter edges of the bolts of cloth were burned. It would seem that if there was as a matter of fact

any connection between the two fires, the bolts of cloth would have caught fire on the ends

nearest the partition. But it appears that the fire in the bodega (or, for that matter, either of theother two fires in No. 26) did not damage the building in the slightest. The fire in the bodega

could not, therefore, have assumed large proportions, and its insignificance is also am indication

of the improbability of its igniting a fire in another room. The court, after an ocular inspection of

the premises, also decided that the fire in the bodega could not have started the fire in thetrastienda. That the burning bolts of cloth in the trastienda were covered with petroleum is

undisputably established by the testimony of competent witnesses. In his deposition taken the

day after the fire, the appellant Go Jancho is recorded as saying that he could not explain why

this cloth was covered with petroleum, but the fact was, nevertheless, that there was petroleumon it. In the court below he denied making this statement, saying that what he did say was that he

did not know whether petroleum or water had been poured on it. As the appellant must have

sufficient sagacity to know that water-soaked cloth will not burn, the insincerity of this statementis apparent. Three bottles were found under the table and one was found behind the door in the

trastienda, all of which had contained petroleum.

As to the fire in the bodega, it is practically conceded by the defense that it was of incendiary

origin. The only thing that was burning in this room was some sauale lying on the floor. The

witness Rosello testified that he found two bottles in the bodega near the burning sauale, togetherwith a broken match box. He stated that he saw signs of petroleum on the sauale. The policeman

Batoto, a witness for the defense, testified that he found a bottle in the bodega which had

contained petroleum. Witness Bryan testified that the burning sauale was taken out of the bodega

and that as it was unrolled it would burst into flame. But it is urged by the defense that someunknown person found access to the bodega through its door and deliberately started the fire. It

is strongly insisted that the evidence of record not only shows that the door to the bodega was not

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locked, but that those who came out the fire found the door open. Upon this point the witness

Cuico testified that while was assisting at the fire in No. 30 the president told him to look around,

and on so doing he saw smoke issuing from the bodega of No. 26. He immediately started for thebodega, followed by the president and two policemen. On arriving there the president ordered

that an opening be made in the wall of the bodega. Cuico remembered there was a door on the

other side of the bodega and ran to open it. While he was trying to push the door open, he heardsomething moving in the bodega. He could not say whether it was an animal or a person. Heknocked on the door and called out, "Open, open" several times, but receiving no response he left

the door and went to the rear where they were making a opening in the wall by tearing off some

pieces of iron. Again, he says that as they had no tools with which to make an opening in thebodega he went to get some, and upon their return they began to force the door open and finally

it yielded. He says that hole in the wall in the rear was made first. After the fire he looked around

the bodega as he was not certain about the noise he had heard inside and saw a hole in the

bamboo matting forming the partition between the bodega and the trastienda. When the fiscalcame to the house to conduct an investigation, Cuico called his attention to this hole and told him

about the noise he had heard in the bodega. The hole shows plainly in the photograph (Exhibit F,

of the prosecution). Although we agree that Cuico's testimony with regard to the door beingclosed and in reference to hearing something moving in the bodega is not corroborated by any

other witness, is does not appear that he was flatly contradicted by Captain Lucas, as counsel

insist. As stated above, when Captain Lucas arrived, both houses were on fire. He first entered

the trastienda. But he was not, by his own testimony, the first person to enter the trastienda, asstated by counsel for the appellant. He found a policeman and a clerk, Mr. Bryan, and one or two

other persons whose names he could not remember, when he entered the trastienda. The fire in

this place, according to Captain Lucas, had burned some time when he arrived. It will be notedthat Captain Lucas first entered the trastienda and that he spent some little time there. There

could have been plenty of time, then, for Cuico to find the door in question closed and to hear the

noise within the bodega and to secure aid in forcing it open before Captain Lucas actually arrived

at the bodega. The same is true with regard to the other witnesses who testified that they foundthe door open. Before convicting Cuico of a deliberate falsehood in testifying that he found this

door closed upon the strength of the testimony of other witnesses who found it open, it seems

necessary to show they reached the door first or at least at the same time as Cuico. Neither can itbe presumed that the witnesses who actually testified in regard to this door (some half dozen at

the most) were the only ones who assisted in putting out the fire in the bodega. It must be

remembered that a number of persons were assisting in this work who were not called aswitnesses, and the aid rendered Cuico in forcing the door could easily have come from persons

who were not called as witnesses at all. It seems that Cuico was familiar with the location of this

door, while the others were not; and instead of obeying the president's orders to make an opening

in the wall of the bodega, he went to open the said door, which accounts for his reaching it first.Captain Hemmett, who visited the place by daylight, testified that the only connection between

the bodega and the trastienda was a hole a apparently made by some person trying to escape.

This was the hole to which Cuico referred. The defense were eloquently silent in regard to this

hole. No attempt was made to show that it was impossible or even tolerably difficult to enter thetrastienda by means of this hole; and it must be held proven beyond question that the hole was

made on the night of the fire. After a very careful examination of all the testimony bearing upon

the question as to whether the door to the bodega was open or not when the fire in that room wasdiscovered, we do not find that Cuico's testimony in this respect is contradicted by anyone.

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None of the accused were able to sat whether the empty kerosene bottles found in various parts

of the house belonged to them or not. There were no electric lights in the house and the

occupants depended entirely upon kerosene lamps. The appellant, Go Jancho, admitted at thetrial that bottles were used in transferring petroleum from the cans in which it was brought to the

various lamps, but said that all this work was done by two muchachos, who were not in the house

on the night of the fire.

We conclude (1) that certainly the fires in the bodega and in the trastienda were of incendiary

origin, with a strong probability that the fire in the room upstairs was of like character; and (2)that the fire in the trastienda did not catch from the fire which was burning in the bodega, but

was started separately.

No insurance was carried by the owner of either building at the time of the fire, and the Chinese

carpenter who lived in No. 30 carried no insurance on his stock of goods. The appellants carried

an insurance of P25,000 on their stock of goods. Accompanied by the fiscal and the then counsel

for the appellants, a committee of three business men, having experience in the appraisement of

merchandise, went to the tienda of the accused the day following the fire and appraised the stockfound there. The highest valuation placed upon the stock by one was P5,500; by another,

between P6,000 and P7,000; and by third, not more than P8,000. Nevertheless, in the courtbelow the appellant, Go Jancho, testified that according to the books of the firm the stock of

good was worth P14,000, and the furniture in the store P1,000. According to his testimony, the

books (which were in Chinese) further showed a profit of about P4,000 for the period September

5, 1910, to February 24, 1912. This profit, however, depends upon the existence of a stock ofgoods worth P14,000, and P1,000 worth of furniture, as well as debts owing to the firm

amounting to P22,673.08. We cannot accept the testimony of the appellant that the books

showed a profit of about P4,000 for the period in question, for the reason that the statement thataccording to the said books the value of the stock in the tienda was P15,000 cannot be accepted

as true. The appraisement and their stock was made in the presence of the accused and their

counsel by persons accepted by them in the court below as qualified to make it correctly. The

highest figures submitted by any of them are scarcely more than half of what the appellants claimthe stock was worth. Notwithstanding the fact that the committee's estimates were so far below

the value of the stock as represented by their books, the accused made no effort to take a detailed

inventory of the stock to substantiate the figures shown in their books and show that thecommittee was in error. Under these circumstances, we do not feel justified in accepting the

figures of the appellants. There can be no question but that the figures of the committee were

reasonable accurate.

Considerable effort has been made on this appeal to destroy the value of the testimony various

witnesses on the ground of minor differences in their testimony. We have carefully examined the

points made by counsel. It will be found that most of them depend upon the establishment of thefact that the persons concerned had equal opportunities for observation. We have already pointed

out this fact in the case of Cuico and Captain Lucas. But in any event we do not consider any of

these alleged inconsistencies as reflecting upon the credibility of the witnesses. It is to beexpected that testimony of several witnesses as to events which transpired in rapid succession,

which were attended by hurry and excitement, and with the opportunity for observation so

greatly hindered by the darkness of night, will disagree in the details. If the witnesses in the

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present case should agree in their testimony that all the events occurred in precisely the same

order and in the same manner, that fact would itself be a suspicious circumstance. It must be

remembered that much of the work of putting out the fire was done by persons who did notappear as witnesses at all. With so many assisting in putting out the fires, and the fact that it

occurred in the nighttime, it is not strange that some should see what others did not see, that two

witnesses observing the same incident should differ in some respects in describing it later, or thatgaps in the evidence should appear because persons who assisted in putting out the fire were notcalled as witnesses. The fact that a united and orderly narrative of the fire in the bodega cannot

be drawn from the testimony of the various witnesses who took part in extinguishing it tends

rather to stamp the testimony of each as being truthful to the best of his observation.Furthermore, the conflicting testimony was for the lower court to weigh. This court has

repeatedly refused to disturb a finding of guilt when the evidence was conflicting and there was

enough before the court to warrant a conviction were evidence of the prosecution true, and

conflicting evidence offered by the defense false, unless from the record it appeared that therewas reasonable doubt as to the correctness of the trial court's classification of the evidence as true

or false.

The testimony of the accused in the present case is far from convincing. Go Jancho denied that

he was out in the passageway between 1 and 2 o'clock on the morning of the fire, saying that hewent to bed about 12 and did not get up until the alarm of fire, or about half past 2 o'clock. Yetwe have the positive and unshaken testimony of De la Cruz that he was there between the two

houses between 1 and 2 o'clock, fully dressed. Of all the empty petroleum bottles scattered over

the house the defendants were unable to either deny or affirm that nay of them belonged to thehouse. These bottles, according to the, were intrusted to the care of muchachos who were not in

the house on the night of the fire. Yet, it would seem that some of the inmates of the house would

have been able to recognize some of the bottles. It is difficult to account for the presence of these

bottles, empty, in the places where the fires occurred. Were they thus carelessly left by themuchachos the last time the lamps were filled? That would be possible, but it does not account

for the oil found upon the cloth and upon the rolls of sauale. Nor is it shown that any lamps or

other oil-burning receptacles were used in the bodega, where some of these bottles were found.

Were they taken from the place where the oil was usually kept by unknown person on the nightof the fire and their contents used in starting the fires? If strangers did this, they must have

known the house and its contents intimately and have spent considerable time passing from one

room to another while securing and distributing the oil. Furthermore, they must have been daringenough to do these things after the crowd had gathered to put out the fire in No. 30, since it has

been shown that the fires in No. 26 were not started until after No. 30 had been burning for a

considerable time. Or were the defendants cognizant of the location of the bottles and did theydeliberately use them to carry oil to the places where the fires occurred and pour their contents

upon the cloth and the sauale? Of all possible explanations of these empty bottles and the traces

of oil found in the places where the fires occurred, this is the most convincing. Go Jancho

testified in the court below that he saw the saturated cloth but did not know whether oil or waterhad been poured upon it. The sincerity of such an answer is obviously to be doubted, especially

in view of the fact that in his deposition he had admitted that it was oil. The accused stated that

they remained on the plaza for nearly an hour while the fire raged in No. 30, without onceventuring near to see the fate of their own property. In fact, according to them, they were

ignorant of a fire having occurred in their own house until after they had been brought in the

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police station. Such testimony is not above suspicion. Especially is this so when it is remembered

that, according to witnesses for the prosecution, they were all recognized at the very scene of the

fire after it had broken out. The defense seemed content to allow the theory of the prosecutionthat the hole in the partition was made on the night of the fire and that a man could make his

escape from the bodega through it. Would strangers have gone to all this trouble and risk in

setting fire to the house? Or would it be more likely that the defendants would do this? The trialcourt was called upon to decide these questions. He heard the testimony, saw the witnessestestify, observed their demeanor on the stand, stand refused to credit the testimony of the

defendants. But in addition to the adverse inferences suggested by this testimony, it was

conclusively proven at the trial: (1) That neither the fire in the bodega nor that in the trastienda ofNo. 26 caught from the fire in No. 30; (2) that there was no connection between the fire in the

bodega and the fire in the trastienda of No. 26; (3) that both the latter fires were on incendiary

origin; (4) that the value of the stock of goods in No. 26 was between P5,000 and P8,000; (5) that

P25,000 worth of insurance was carried on this stock by the appellants; (6) that the appellants,Go Foo Suy and Go Jancho, were the owners of this merchandise and consequently the

beneficiaries of the insurance; (7) that their business operations over a period of approximately

eighteen months just prior to the fire had resulted in a loss of at least P4,000. Here we have a fireof incendiary origin and a very powerful motive for starting it. The appellants had been

conducting their business at a loss for nearly eighteen months. The success of their crime meant

that they would receive about twice the value of their stock of goods and thus convert a losing

investment into a profitable one.

In State vs.Ross (77 Kan., 341), an arson case, it was said that the testimony showed a singularstate of affairs, but its weight and credibility was for the jury. Having been found true by the jury

and approved by the trial court, the appellate tribunal decided that its sufficiency could not be

successfully controverted before it.

To the same effect isPeople vs. Stewart (163 Mich., 1). In this case there was evidence tending

to show that the buildings were insured for less than they were worth.

In State vs.Henriksen (1216 Minn., 336), it was said in sustaining a conviction:

That some one deliberately set the house on fire after making careful plans for the

success of the deed is a conceded fact in the case. The only question before the jury was

whether defendant either alone or in collusion with his wife laid these plans and fired thebuilding, or whether it was the act of some third person.

InPeople vs. Mix (149 Mich., 260), the evidence used in securing a conviction was whollycircumstantial, but the appellate court sustained the verdict of guilty, notwithstanding that

evidence was offered by the defendant tending to prove an alibi, the court saying that the persons

who to testified could have been mistaken. In this case the building was insured, but evidently

not to an exorbitant figure.

In United States vs.Benitez and Lipa (18 Phil. Rep., 513), an arson case, this court said:

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In a conflict of testimony such as is presented in this case, the court must depend to a

considerable extent upon the discernment of the judge who sits at the trial. A careful and

discriminating trial judge has unequaled advantages in determining the relative credibilityof opposing witnesses. If he exercises his faculties with shrewdness and sagacity, he

performs a most valuable work for the appellate court. We have considered this case in a

very painstaking manner. We have searched the record for any evidence indicating thatthe learned trial court was mistaken in his judgment as to the relative credibility of thewitnesses or that he had overlooked some fact or circumstance of weight or influence in

passing upon the evidence, or that he had misinterpreted the significance of the facts as

proved. We have been unable to find from the record that the learned trial court has falleninto such error; and, in accordance with the rule which we have so often laid down,

namely, that this court will not interfere with the judgment of the trial court in passing

upon the relative credibility of opposing witnesses unless there appears in the record

some fact or circumstance of weight and influence which has been overlooked or itssignificance misinterpreted by him, we decline to interfere with the judgment of the trial

court upon the facts in this case.

In the present case the motive of committing the crime was powerful; the incriminating evidence

is strong; and suspicion rests upon the exculpatory evidence submitted by the defense in manyplaces.

After a most careful examination of the entire record, we are of the opinion that the finding of

guilty by the lower court ought not to be disturbed.

The appellant Go Foo Suy was offered as a witness in his own behalf by counsel, but upon being

refused a Chinese interpreter, counsel declined to permit him to testify. Go Foo Suy himselftestified that he had been resident of Cebu seventeen or eighteen years, and the court observed

that the witness was able to testify in the local dialect if he had wished to do so. Moreover, thecourt stated that an interpreter would translate his statements whenever he found any difficulty inmaking them. We cannot say that there was any prejudicial error in not allowing the appellant an

interpreter.

The court found the appellants guilty of frustrated arson and sentenced them under article 549 of

the Penal Code for setting fire to a building which they knew at the time to be occupied by one or

more persons. It is urged by the defense that the court erred because the evidence shows that allthe inmates had left No. 26 when the fires occurred, and, accepting the theory of the prosecution

that the appellants started the fire in order to collect the insurance on the merchandise which

belonged to them, the offense would fall under article 561 of the Penal Code.

Article 561 provides that if the burned things shall be the exclusive property of the incendiary, he

shall suffer a penalty of arresto mayor in its maximum degree toprision correccional in its

minimum degree, if the arson shall have been committed with intent to defraud or cause damageto another.

In view of the disposition we propose to make of the case, this proposition requires no attention.

In its decision of December 31, 1988, the supreme court of Spain laid down the doctrine that

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setting fire to the contents of a building constitutes the consummated crime of setting fire to the

building. We agree with this doctrine, and it is therefore immaterial that the contents of the

building in the case at bar belonged to the defendants themselves while the building belonged toa third person.

We think, however, the court erred in applying article 549. An essential element of the crimepunished by this article is knowledge on the part of the wrongdoer that the building was

"occupied at the timeby one or more persons." That all the essential elements of a crime must be

proven beyond a reasonable doubt does not require elaboration. The facts of the present case donot justify the assertion that the defendants knew the building to be occupied at the time.

In view of the considerable time which intervened between the discovery of fire in No. 30 and itsdiscovery in No. 26, and considering the noise which must have been made by the crowd which

assisted in putting the fire out in No. 30, it is not probable that any person residing in No. 26 was

caught unawares when the fire broke out in this house. And also bearing in mind the suspicion

which rests upon the conduct of all the inmates of this house, we are of the opinion that the

defendants ought not to be charged with knowledge that the building was occupied atthe time they set it on fire. As the damage occasioned by the fire did not exceed 6,250pesetas,

the crime of the defendants in punishable under article 550, paragraph 2, in connection witharticle 551, paragraph 1. The aggravating circumstance of nocturnity being present in the

commission of this crime, with no extenuating circumstances, the penalty should be imposed in

its maximum degree.

The judgment of the lower court is therefore modified accordingly and the appellants sentenced

to ten years and one day orpresidio mayor. In all other respects the judgment appealed from is

affirmed. The appellants will pay the costs of this instance. So ordered.

Arellano, C.J., Johnson, Carson and Moreland, JJ.,concur.

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N BANC

G.R. No. L-30360 July 24, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS,Plaintiff-Appellee, vs. FAUSTINO

SOBREVILLA,Defendant-Appellant.

Martin de Eiguren for appellant.Attorney-General Jaranilla for appellee.

AVANCENA, C.J.:chanrobles virtual law library

The appellant was found guilty of the theft of P12 by the Court of First Instance of Occidental

Negros, and sentenced to 4 months, and one day of arresto mayor, and being considered as arecidivist under Act No. 3397, was sentenced to an additional penalty of 18 years' imprisonment

with costs.chanroblesvirtualawlibrarychanrobles virtual law library

According to the evidence, there is no doubt whatever as to the applicant's guilt. At about 10:00

in the morning of April 8, 1923, while the appellant was behind Mariano de Oca, the offended

party, in the midst of the crowd in front of the public market, he abstracted from said de Oca'strousers, the pocket-book containing P12, which the latter carried. The defendant already had the

pocket-book, when, De Oca perceiving the theft, caught hold of the appellant's shirt front, at the

same time shouting for a policemen; after the struggle he recovered his pocket-book, and let goof the defendant, who was afterwards caught by a

policeman.chanroblesvirtualawlibrarychanrobles virtual law library

It is contended in this instance that these acts constitute the crime of the frustrated, and not

consummated, theft. We believe that such a contention is groundless. The appellant succeeded intaking the pocketbook, and that determines the crime of the theft. If the pocket-book was

afterwards recovered, such recovery does not affect the appellant's criminal liability, which arosefrom the appellant having succeeded in taking the pocket-

book.chanroblesvirtualawlibrarychanrobles virtual law library

We agree with the Attorney-General that the facts proven constitute the crime of qualified theft

defined in Article 517 paragraph 1, of the Penal Code, in connection with article 520 paragraph

3, of the same code. The value of the stolen article being more than 25 and less than 250 pesetasand there being no circumstance modifying the criminal liability, the penalty fixed by law should

be imposed in its medium degree, that is, two years, four months, and one day ofpresidio

correccional.chanroblesvirtualawlibrarychanrobles virtual law library

On the other hand, the Attorney-General is of the opinion that the trial court erred in applying

Act No. 3397. We believe this opinion is not well-founded and that the decision appealed from isnot correct in this respect.chanroblesvirtualawlibrarychanrobles virtual law library

The information filed in this case alleges that the defendant is a recidivist, having beenpreviously convicted four times of the crime of theft; to wit on March 29, 1919, on April 7, 1919,

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on April 15, 1919 and on September 26, 1919. The Attorney-General believes that this allegation

is not sufficient to apply Act No. 3397. Section 1 of the said Act reads:

Any person who within a period of 10 years from the date of his release from his last conviction

by the courts of this country by the crimes of robo, hurto, estafa, embezzlement, or forgery or of

a violation of the laws against vagrancy or prostitution, is found guilty of any of said crimes of athird time, or oftener shall be deemed an habitual criminal and shall be sentenced as follows:

x x x x x x x x xchanrobles virtual law library

(c) Upon a fifth conviction of any of said crimes he shall be sentenced to the penalty provided forthe last crime committed, and in the description of the court, to an additional penalty of not less

than 16 or more than 20 years of imprisonment; . . ."

It is thus seen that the information contains all the necessary allegations to bring the case withinthe purview of the above-quoted legal provision. It appears from these allegations that the

defendant had been previously convicted four times of the crime of theft, and the theft withwhich he is charged in the instant case was committed on April 8, 1928, that is, within 10 yearsfrom the date of his last conviction, which took place on September 23,

1919.chanroblesvirtualawlibrarychanrobles virtual law library

The Attorney-General bases his opinion on the decision rendered by this court in the case of

People vs. Nayco (45 Phil., 167). But we believe that the doctrine laid down in that case is not

applicable to the case at bar. In that case, the information alleged that "the herein accused hastherefore been twice (2) convicted of theft in the Municipal Court, by virtue of final judgments."

The question then was, whether by virtue of said allegation, Act No. 3062 was

applicable.chanroblesvirtualawlibrarychanrobles virtual law library

Said Act, which was afterwards amended by Act No. 3397, provides:

SECTION 1. Any person who has twice or oftener been convicted of the crime of theft or

robbery who committed either of said crimes within the 5 years next following the day on which

he completed service of his last sentence, shall be deemed a habitual delinquent and shall sufferthe penalty provided by law for the last time committed and an additional penalty equivalent to

one-half of the penalty imposed therefor, and the penalty herein provided shall be imposed upon

such habitual delinquent anytime thereafter he shall commit either of said misdemeanors prior to

the expiration of ten years from and after the date on which he completed serving his lastsentence.

In that case this court held the information filed therein to be insufficient for the Application ofthe Act. As may be noticed, in order to apply the act, the crime prosecuted must have been

committed within 5 years from the day when the defendant completed service of the last

sentence for the similar crimes he had theretofore committed. This circumstance was not allegedin the information, and therefore the latter was held insufficient. The court said that "the

defendant is an habitual delinquent under the terms and provisions of Act No. 3602;" but it did

not mean that such allegation was necessary, - only that it would have sufficed the absence of

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another or others specifically mentioning the circumstances required by Act No. 3062 for its

application. It is clear that if the information had alleged, in addition, that the crime therein

charged had been committed within the 5 years from the day on which the defendant completedservice of the last sentence passed upon him for the crime of theft, the court would not have held

that information to be insufficient.chanroblesvirtualawlibrarychanrobles virtual law library

In view of these considerations, the appellant is hereby convicted of the crime charged, being

sentenced for said crime to two years, four months and one daypresidio correccional, and being,

besides, an habitual criminal under the terms and provisions of Act No. 3397, he is herebysentenced, pursuant to the provisions of said Act, to further and additional penalty of sixteen

years' imprisonment with costs. So ordered.

Johnson, Street, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.