THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. DOMINGO SIOJO Y MESINA, DEFENDANT AND APPELLANT.

The herein appellant, having been charged
and convicted of theft of a watch valued at P8.25, was sentenced by the
Court of First Instance of Manila, on September 18, 1933, to two months
and one day of arresto mayor, with the corresponding
accessory penalties, and to pay the costs of the proceedings, and
furthermore to suffer the additional penalty of ten years and one day
of prision mayor, being eight times a recidivist and at the same time a habitual delinquent. From this judgment the defendant appeals.

The evidence of record conclusively shows that on August 27, 1933,
the appellant, having seen the Chinaman named Ang Hap place his wrist
watch in a drawer in his store situated at 101 Juan Luna, Manila, and
believing that the said Chinaman would not notice him as the former was
busy washing his hands, opened the aforesaid drawer and took the wrist
watch in question together with a bottle of sauce valued at P0.25,
which was within his reach, and started to run away with the said
articles. Ang Hap pursued the defendant as far as the China Bank, in
which direction he was headed, but before the said defendant was
overtaken, he threw the two articles in question into a receptacle for
rubbish.

The evidence likewise shows, by the appellant’s own admission, that he had already been convicted twice of estafa
and five times of theft, and that he was last released from Bilibid on
November 25, 1932. The appellant’s testimony relative to his previous
convictions appears from the following cross-examination of the said
appellant taken at the trial, to wit:

“Q.	Is it not true that prior to this occasion you have many times been in Bilibid for theft and estafa?	—	A.	It is true that I was imprisoned, but, upon my release, I finally resolved to be good.
“Q.	Is it not true that your last release from Bilibid was on November 25, 1932?	—	A.	Yes, sir.
“Q.	Is it not true that you had been there at least twice for estafa?	—	A.	I admit that.
“Q.	And also five times for the crime of theft committed on different occasions?	—	A.	Yes, sir, it is true, but after I have been released from prison, I already behaved well.”

If the above quoted testimony of the appellant were not sufficient
to destroy his contention that he is not a habitual delinquent, the
record affords additional proof thereof. The certificate of the said
appellant’s criminal record appearing on page 4 of the aforesaid record
shows that in March, 1915, and in February, 1916, he was convicted of estafa;
that on September 15, 1917, October 22, 1919, September 16, 1922,
August 29, 1924, January 16, 1925, December 18, 1931, and December 17,
1932, he was also convicted of consummated and of attempted thefts; and
that he was released from Bilibid only on March 29, 1933, scarcely five
months before committing his last crime.

According to article 309, subsection 5, in connection with article
308 of the Revised Penal Code, the penalty, which the appellant
deserves, is arresto mayor in its maximum period, and there
being no other circumstance to be taken into consideration except that
of recidivism, the above stated penalty should have been imposed upon
him in its maximum period, that is, four months and one day to six
months. By reason of his habitual delinquency and this being his tenth
conviction of the same offense, he also deserves the additional penalty
of prision mayor in its maximum period to reclusion temporal
in its minimum period (from ten years and one day to fourteen years and
eight months) prescribed in article 62, subsection 5, paragraph (c), of the Revised Penal Code.

Wherefore, the judgment appealed from is hereby modified in the
sense that the penalty of two months and one day imposed therein be
changed to four months and one day of arresto mayor and
affirmed in all other respects, including the additional penalty of
imprisonment, with costs against the appellant. So ordered.

Street, Villa-Real, Abad Santos, and Butte, JJ., concur.