THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FRANCISCO JULIADA ET AL., DEFENDANTS. FRANCISCO JULIADA AND SIMPLICIO LUNA, APPELLANTS.

The penalty imposed by the trial court in this case for the crime
of robbery is, three years, eight months and one day of presidio
correcional upon Simplicio Luna, and ten years of presidio correcional
(mayor) upon Francisco Juliada, for his recidivism. The court further
sentenced them to pay the costs, and ordered that the money and wallet
presented in evidence be returned to the offended party.

The defendants allege on appeal through counsel de officio that
their motion for dismissal filed after the prosecution had closed its
evidence should have been granted; that it was error to hold that the
aforesaid wallet and the contents thereof belong to the alleged
offended party; and that they should be acquitted.

Failure to present the offended party as a witness does not
constitute sufficient ground for dismissal. The testimony of the
offended party is not essential to convict the defendant. Whether the
offended person is to appear or not as a witness in a criminal case,
depends upon the prosecuting officer, who is given by law discretion to
use him as witness or not. The fact that said officer in the exercise
of his discretion does not present the offended party as a witness,
does not detract from the efficacy of the proceeding, and does not
constitute ground for dismissal thereof. The sufficiency or
insufficiency of the evidence in a criminal case does not depend upon
whether the offended party took the witness stand or not.

In the instant case, the evidence that the wallet belongs to the
offended party is found in the testimony of witness Dungao to the
effect that said offended party so stated in the presence of the
defendants, and this testimony was not objected to by counsel when
Dungao gave it. Aside from this, the circumstance that the wallet may
belong to the offended party or not, is not essential to the
appellants’ rights, in view of their failure to allege and certainly to
prove that it belongs to both or to one of them; and it appearing from
the record that when defendant Simplicio Luna was about to be searched
by Lieutenant Guido, he threw the wallet into the gutter, such act
precludes the idea that the wallet belongs to him and that he had been
keeping it in his pocket.

The assignments of error are unfounded.

It has been proved that both defendants are recidivists, and, as
the Attorney-General correctly observes, the circumstance serves to
aggravate their liability in view of the absence of any mitigating
circumstance to offset the same. Therefore, the penalty fixed for case
5, article 503 of the Penal Code, must be applied in the maximum
degree. It further appears that appellant Francisco Juliada is not only
a recidivist, but also an habitual criminal, having been heretofore
convicted of theft seven times by final judgment; for this reason he
has incurred the additional penalty provided in paragraph (d), section
1, Act No. 3397, as amended by Act No. 3586.

Wherefore, the judgment appealed from is affirmed in so far as the
appellants are found guilty of the crime charged, and modified as to
the penalties; each of said appellants is hereby sentenced to six
years, ten months and one day presidio mayor, with the accessory
penalties of law, and the defendant Francisco Juliada is further
sentenced to suffer an additional penalty of twenty-one years’
imprisonment, with costs against the appellants. So ordered.

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