THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. BENITO HIPOLITO, DAVID PABLO AND VICTORINO REYES, DEFENDANTS. VICTORINO REYES (ALIAS VICTORINO DE LOS REYES), A…

On the 11th day of October, 1928, one of the prosecuting attorneys
of the City of Manila filed an information against the above-named
defendants, charging them with the crime of robbery. The information
alleged:

“That on or about the 10th day of September, 1928,
in the City of Manila, Philippine Islands, the said accused,
confederating together and helping one another, by climbing the wall of
inhabited house No. 444 Tejeron Street and thereby gaining entrance to
the said house through a hole made by the accused in the wall, did then
and there willfully, unlawfully, and feloniously, with intent of gain
and without the consent of the owner thereof, take and carry away from
said house the following personal property belonging to Ong Chip, to
wit:

“Fifty pesos (P50) in different denominations, to the
damage and prejudice of the said owner in the said sum, equivalent to
and of the value of 250 pesetas;

“That the accused
Victorino Reyes is an habitual criminal within the purview of Act No.
3397 of the Philippine Legislature, he having previously been convicted
by final judgment of competent courts twice of theft and once of the
crime of estafa the last conviction being that of qualified theft on March 1, 1927.”

Benito Hipolito and David Pablo were tried first. Victorino Reyes
was not included in their trial because his arrest was not effected
until a later date. His two co-accused were found guilty of the crime
charged, without any mitigating or aggravating circumstances, and
sentenced by Judge C. A. Imperial, each to suffer two years, eleven
months and eleven days of presidio correctional, to indemnify jointly
and severally the offended person, Ong Chip, in the sum of P50, with
subsidiary imprisonment in case of insolvency, and to pay a
proportional part of the costs. From that sentence Benito Hipolito and
David Pablo tiid not appeal.

Upon arraignment Victorino Reyes pleaded not guilty. At the opening
of the trial, however, he withdrew his former plea and entered a plea
of guilty. In view thereof, the Hon. C. A. Imperial, judge, sentenced
him to suffer two years and five months of prisidio correccional,
with the accessory penalties of the law, to indemnify the offended
person in the sum of P50 or any part thereof remaining unpaid, with
subsidiary imprisonment in case of insolvency, and to pay a
proportional part of the costs. The dispositive part of the decision
reads as follows:

“Por tanto, el Juzgado halla al acusado Victorino
Reyes alias Victorino de los Reyes culpable del delito de robo tal y
conforme esta alegado en la querella y le condena a dos anos y cinco
meses de prision correctional, a indemnizar al of endido en la cantidad
de cincuenta pesos (P50), o la parte de ella que no lo hubiese sido por
los otros co-acusados, con prision subsidiaria correspondiente en caso
de insolvencia, en (con) las demas accesorias aplicables de la ley y al
pago de la parte proporcional de las costas del juicio. Asi se ordena.”
From that sentence Victorino Reyes appealed.

The appellant having pleaded guilty, the only question for
determination is whether the penalty imposed by the lower court is in
accordance with the law. The attorney for the appellant recommends
confirmation of the penalty.

The Attorney-General recommends that the penalty of imprisonment be
raised to its maximum degree in view of the aggravating circumstance of
recidivism resulting from the appellant’s former convictions; and that
an additional penalty of not less than ten nor more than fifteen years
of imprisonment be also imposed because of his being an habitual
criminal, under the provisions of Act No. 3397, section 1, paragraph (b).

We agree with the recommendation of the Attorney-General as to the
imposition of the additional penalty under the provisions of Act No.
3397. The appellant having pleaded guilty of the acts recited in the
information, including his being an habitual criminal, the penalty
provided by Act No. 3397 should also be imposed upon him. We also agree
with the Attorney-General that the appellant’s former convictions
should be considered as an aggravating circumstance, and that the
penalty of imprisonment should be imposed in its maximum degree.
(People vs. Aguinaldo, 47 Phil., 728.)

The penalty imposed by the lower court (2 years and 5 months of
prisign correctional), is in the minimum degree. The same should be
raised to the maximum degree or 3 years, 6 months, and 21 days of presidio correccional, in view of the aggravating circumstance of reclusion.

In view of all of the foregoing, the sentence appealed from is
hereby modified, and the appellant is hereby sentenced to suffer three
years, six months and twenty-one days of presidio correccional,
with the accessory penalties of the law, to indemnify the offended
person in the sum of P50 or any part thereof remaining unpaid, with
subsidiary imprisonment in case of insolvency, and to pay a
proportional part of the costs. The appellant is hereby further
sentenced to suffer an additional penalty of ten years of imprisonment
in accordance with the provisions of section 1, paragraph (b) of Act No. 3397. With costs. It is so ordered.

Avancena, C. J., Street, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.