THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. LEON ESTEBAN, DEFENDANT AND APPELLANT.

This is a criminal action commenced in the
Court of First Instance of the Province of Bulacan on the 13th day of
May, 1918. The defendant was charged with a violation of section 2751
of Act No. 2711. The lower court, in a carefully prepared opinion,
found the defendant guilty of the crime charged in the complaint, and
sentenced him to pay a fine of P1,053.80, with subsidiary imprisonment
in case of insolvency, and, in addition thereto, fifteen days of
imprisonment, and to pay the costs. From that sentence the defendant
appealed to this court, and the cause was submitted for decision on the
12th day of July, 1921.

The appellant presented no defense in the court below. He admits
his guilt in his brief presented in this court, but raises two
questions: (1) That Act No. 1732 which provides for subsidiary
imprisonment in certain crimes created by Acts of the United States
Philippine Commission does not apply to crimes defined and punished by
Acts of the Philippine Legislature; and (2) that if it does, then the
subsidiary imprisonment provided for by said law (Act No. 1732) was
improperly applied in the present case.

With reference to the first contention, it may be said that the
change in the personnel or character of the legislative department of
the Government, which does not change the form nor the sovereignty of
the Government, in our opinion, does not change the applicability of
the law of one period to the laws of another. The Penal Code expressly
provided for subsidiary imprisonment in certain cases. None of the
penal laws passed by the legislative department of the Government under
the American sovereignty contained any such provision, and Act No. 1732
was enacted for that very purpose. Prior to Act No. 1732 there was no
provision for imposing subsidiary imprisonment for crimes created by
the United States Philippine Commission. We are of the opinion that Act
No. 1732 applies to all crimes committed after its adoption, whether
such crimes are defined and punished by Acts of the Philippine
Commission, or by the Philippine Commission and the Philippine
Assembly, or by the Philippine Assembly and the Philippine Senate. Our
conclusion, therefore, is that the provisions of Act No. 1732 are
applicable to the crime created by section 2751 of Act No. 2711.

With reference to the second question, viz.: whether the subsidiary
imprisonment imposed by the lower court was imposed in accordance with
the provisions of the law, it may be said that paragraph (6) of section
1 of Act No. 1732 provides that “in case the sentence of the court
imposes both fine and imprisonment, the subsidiary
imprisonment shall not exceed one-third of the term of imprisonment
imposed by such sentence, and in no case shall such subsidiary
imprisonment exceed one year.” In view of this provision and the fact
that both fine and imprisonment were imposed in the present case, antl
the period of imprisonment was fifteen days only, the subsidiary
imprisonment can only be one-third of that period, i. e., five days.

Therefore, the sentence of the lower court is hereby modified, and
it is hereby ordered and decreed that the defendant be sentenced to pay
a fine of P1,053.80 and to be imprisoned for a period of fifteen days,
and in case of insolvency, to suffer subsidiary imprisonment for a
period of five days in addition thereto, and to pay the costs. So
ordered.

Mapa, C. J., Araullo, Street, Avancena, and Villamor, JJ., concur.