THE PEOPLE OP THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FABIAN MONTERA, DEFENDANT AND APPELLANT.

The trial judge was right  in convicting the accused for the theft of twelve phonograph records  and one flashlight, valued at P30.30, and in considering the accused as an habitual delinquent.  No consent, express or implied,  on the part of the offended party for the accused to take the records and flashlight was established.   Recidivism was properly taken into account as  an aggravating circumstance, independently of the provisions of the Habitual Delinquent Law.   (People vs. Aguinaldo [1925], 47 Phil., 728.)

The Habitual Delinquent Law, Act No. 3397, is attacked as an ex post facto law in  violation of the  Organic Act. This court has heretofore held  the  Habitual  Delinquent Law valid  as not inflicting  cruel or  unusual punishment, (People vs. Madrano [1928], 53 Phil., 860.)   The present contention is equally unsustainable.  Statutes which authorize a more severe punishment to be imposed upon one convicted of a second or subsequent offense are not objectionable upon  the  ground that they are ex  post  facto laws. Such statutes, the United States  Supreme  Court has  said, do  not impose  any additional punishment for  the  former crimes, but simply impose a  punishment on future crimes, the  penalty therefor being  enhanced  on  account of the criminal propensities of the accused.  (McDonald vs. Massachusetts [1900], 180 U. S., 311.)

Conforming, therefore, with the pronouncements of the trial court, except that, as recommended by the Attorney-General, there must  be a modification of the  period of imprisonment, the judgment appealed from will be affirmed, it being understood that the defendant and appellant  is sentenced to two  years, four months, and one day  imprisonment,  presidio  correctional, to  indemnify the offended party in the amount of P30.30, with subsidiary imprisonment in case of insolvency, with  the appropriate accessory penalties, and with the  costs of both instances;  and to an additional  penalty of ten years’ imprisonment as an habitual delinquent.  So ordered.

Avanceña, C. J., Johnson, Street, Villamor, Ostrand, Romualdez, Villa-Real, and  Imperial, JJ., concur.