THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. CASIMIRO CONCEPCION, DEFENDANT AND APPELLANT.

DIAZ, J.:

The appellant, upon his own admission made in open
court and in the presence of his counsel, was for the fifth time a
recidivist at the time of the trial of this case. His last sentence was
that imposed upon him for estafa, on August 22, 1928, in case No. 36870 of the Court of First Instance of Manila.

The case, now under consideration in consequence of
his appeal from the judgment rendered by the trial court, was
instituted against him on September 13,1933, that is scarcely five
years and one month after his last sentence.

The information, which gave rise to the case in question, charged the appellant with another new crime of estafa alleged to have been committed as follows:

“That on or about the 23d day of
August, 1933, in the City of Manila, Philippine Islands, the said
accused did then and there willfully, unlawfully and feloniously
defraud one George Uzton in the following manner, to wit: that the said
Casimiro Concepcion pretending to possess enough and sufficient funds
deposited in the Philippine Trust Company and to be a business man
engaged in giving out loans, and by means of similar deceit to wit:
that he was willing and able to make to said George Uzton a loan of
P2,000 in cash provided the latter would pay him an interest on said
loan at the rate of 2 per cent per month payable four months in
advance, which statements and representations made by said accused to
said George Uzton the said accused well knew were false and fraudulent,
succeeded in inducing the said George Uzton to issue, sign and execute
a promissory note in favor of said Casimiro Concepcion acknowledging
the receipt of P2,000 as loan and at the same time to issue a check in
favor of said Casimiro Concepcion for P160, representing the interest
on said loan which promissory note and check the said Casimiro
Concepcion took and received from said George Uzton in exchange for
check No. C-75450 on the Philippine Trust Company, a banking
institution duly organized and doing business in said city in favor of
said George Uzton dated August 23, 1933, for the sum of P2,000, which
he issued, gave and delivered to said George Uzton, representing the
amount of the loan of P2,000, which check was dishonored upon
presentation to said bank on the ground that the said Casimiro
Concepcion did not at the time have or maintain a current account with
said bank nor have any funds deposited in his name or in his behalf
upon which to draw the said amount of P2,000, thus succeeding in
obtaining the promissory note of said George Uzton in favor of Casimiro
Concepcion for the sum of P2,000 without any consideration and
receiving from the latter a check for P160 as an interest on said loan
which he collected and misappropriated to his own use and benefit, to
the damage and prejudice of the said George Uzton in the total amount
of P2,160, Philippine currency.

“That the
said accused is a habitual delinquent, he having previously been
convicted six times of the crime of estafa by virtue of final judgments
of competent courts, his last conviction of the said crime of estafa
being that of December 18, 1928,”

The appealed judgment sentences the appellant to two months and twenty-one days of arresto mayor
with the corresponding accessory penalties, to indemnify George Uzton
in the sum of P160, with subsidiary imprisonment in case of insolvency,
to pay the costs of the proceedings, and to further suffer an
additional penalty of twelve years and one day of reclusi6n temporal,
as a habitual delinquent.

The only question raised by the appellant in his
brief is whether or not the evidence of record is sufficient to justify
the conclusions of the trial court.

After a careful examination of said evidence, this
court arrived at the conclusion that the same supports the findings of
fact stated by the trial court in its decision, as follows:

“George Uzton, needing a certain
amount of money in order to open a Bar-Restaurant, requested his friend
Basilio Salgado to help him find a capitalist, who would be willing to
lend him the amount he needed. On the afternoon of August 23d of this
year, Salgado introduced Mr. Uzton to the accused who, Salgado claimed
would be able to supply him with capital. The accused, without
solicitation on Mr. Uzton’s part, offered to loan money to the latter,
telling him, among other things, that he was willing to help Mr. Uzton
because he knew that Americans always complied with their obligations.
Mr. Uzton stated that he needed P2,000, whereupon the accused delivered
to him the check Exhibit A for P2,000, signed by said accused and drawn
on the Philippine Trust Co., and Mr. Uzton, on his. part, delivered to
said accused the promissory note Exhibit B, for the same amount,
payable four months after date. The accused requested that the interest
on the loan plus a certain sum for brokerage be paid to him in advance,
for which reason, Mr. Uzton delivered to him the sum of P160 in cash.
The next day, that is, on August 24th, Mr. Uzton went to the Philippine
Trust Co. to cash the check but it turned out that the accused never
had funds in said bank and that the check in question formed part of a
check book belonging to another person. Mr. Uzton immediately notified
Mr. Salgado, by phone, that the capitalist whom the latter had
suggested to him did not have funds in the bank and with Mr. Salgado
went to the secret service to report the matter.”

The check Exhibit A, which bears the authentic
signature of the appellant, and the testimony of Basilio Salgado
absolutely corroborate George Uzton’s testimony as to how he was
induced to deliver to the appellant the sum of P160 and how said
appellant succeeded in convincing him that he was really a capitalist
with funds in the Philippine Trust Co.

There is no question that the proven facts
constitute the crime of estafa as defined and penalized in article 315,
case 4, in connection with subsection 2, paragraph (a), of the Revised
Penal Code inasmuch as the amount of the damages caused is P160.

However, this court notes that the trial court also
sentenced the appellant to suffer subsidiary imprisonment in case of
non-payment to George Uzton of the indemnity of P160. This court
believes this to be an error on the ground that once the guilt of the
accused is proven, the penalty which should be imposed upon him, taking
into consideration the aggravating circumstance of multi-recidivism
proven at the trial, should be four months and twenty-one days of
arresto mayor plus the additional penalty of ten years and one day of reclusion temporal,
in conformity with the provisions of subsection 5, paragraph (c), of
article 62 of the Revised Penal Code. Naturally this has the effect of
saving the appellant from subsidiary imprisonment because it is
prohibited by rule 3 of article 39 of said Code, which reads as follows:

“When the principal penalty imposed is higher than prision correccional no subsidiary imprisonment shall be imposed upon the culprit.”

Wherefore, the judgment appealed from is hereby modified by sentencing the appellant to four months and twerty-one days of arresto mayor, to indemnify George Uzton in the sum of P160, to further suffer the additional penalty of ten years and one day of reclusion temporal, and to pay the costs of the proceedings. So ordered.

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