THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. CO CHANG, DEFENDANT AND APPELLANT.

VICKERS, J.:

The defendant and appellant was charged in the Court
of First Instance of Manila with the crime of robbery in an inhabited
house, committed as follows:

“That on or about the 18th day of November, 1933,
in the City of Manila, Philippine Islands, the said accused did then and
there willfully, unlawfully and feloniously break into and enter house
No. 411 Soler, Manila, the dwelling place of Catalino Ho and his family,
by then and there forcibly opening the padlock of the principal door,
which was then locked, by means of a piece of galvanized iron wire and
once inside forcibly opened the lock wardrobe and after having thus
opened the said wardrobe in the manner above set forth, the said accused
willfully, unlawfully and feloniously, with intent of gain, took, stole
and carried away without the consent of the respective owners, the
following personal property belonging to:

“PACITA YAP

“RAMON HO Y. CHAN

“CATALINO HO

all of the total value of one hundred ninety-three
pesos (f»193), to the damage and prejudice of the above-named owners, in
the total sum of one hundred ninety-three pesos (V19B), Philippine
currency,

“That, at the time of the commission of said
offense, the said accused was a habitual delinquent, he having been
previously convicted twice (2) of the crime of theft by virtue of final
judgments rendered by competent courts, his last date of conviction
being on September 2, 1930, and date of release therefor, on May 4,
1933.”

The lower court found the defendant guilty, and in
accordance with article 299 of the Revised Penal Code sentenced him to
two years, eleven months, and eleven days of prision correccional,
to return to Pacita Yap the pair of earrings and to Ramon Ho and
Catalino Ho the two coats, or the stolen goods not recovered, and to
suffer an additional penalty for being a habitual delinquent, in
accordance with rule 5 of article 62 of the Revised Penal Code, of seven
years, four months, and one day of prision mayor, and to pay
the costs.

The appellant now alleges that the lower court
erred:

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	Select OneAUSTRIA-MARTINEZ, J.:AZCUNA, J.:CALLEJO, SR., J.:CARPIO, J.:CARPIO MORALES, J.:CHICO-NAZARIO, J.:CORONA, J.:DAVIDE JR., J.:DAVIDE JR., C.J.:GARCIA, J.:NACHURA, J.:PANGANIBAN, ACTING CJ.:PANGANIBAN, C.J.:PANGANIBAN, J.:PER CURIAM:PUNO, J.:PUNO, C.J.:QUISUMBING, J.:REYES, R.T., J.:SANDOVAL-GUTIERREZ, J.:Sirs/Mesdames:TINGA, J.:VELASCO JR., J.:YNARES-SANTIAGO, J.:GENTLEMEN:LEONARDO-DE CASTRO, J.:GentlemenVITUG, J.:BRION, J.:BELLOSILLO, J.:QUISUMBING, ACTING C.J.:MENDOZA, J.:ACTING, C.J.:QUISUMBING, Acting C.J.PERALTA, J.:BERSAMIN, J.:DEL CASTILLO, J.:REGALA, J.:DE LEON, JR., J.:BENGZON, C.J.:CONCEPCION, J.:MAKALINTAL, J.:DIZON, J.:PADILLA, J.:MELO, J.:PARDO, J.:LABRADOR, J.:BARRERA, J.:BAUTISTA ANGELO, J.:PAREDES, J.:REYES, J.B.L., J.:NATIVIDAD, J.:GONZAGA-REYES, J.:DE LEON, J.:DEL CASTILLO, J.:BUENA, J.:KAPUNAN, J.:PARAS, C.J.:GUTIERREZ DAVID, J.:QUISUMBING, ACTING CJ.:ABAD, J.:BENGZON, J.:ENDENCIA, J.:MONTEMAYOR, J.:PADILLA, J.:PER CURIAM:CONCEPCION, C.J.:RUIZ CASTRO, J.:SMITH, J.:REYES, A., J.:BENGZON, ACTING C.J:FELIX, J.:SANCHEZ, J.:ZALDIVAR. J.:BENGZON, J.P., J.:PERFECTO, J.:PARAS, J.:JUGO, J.:FERIA, J.:PABLO, J.:TUASON, J.:REYES, J.:MORAN, C.J.:PURISIMA, J.:WILLARD, J.:TORRES, J.:MAPA, J.:MCDONOUGH, J.:JOHNSON, J.:ARELLANO, C.J.:COOPER, J.:BRIONES, J.:HILADO, J.:TRENT, J.:DIAZ, J.:AVANCEÑA, C.J.:IMPERIAL, J.:ABAD SANTOS, J.:VILLA-REAL, J.:CARSON, J.:MORELAND, J.:LAUREL, J.:DE JOYA, J.:MORAN, J.:OZAETA, J.:BOCOBO, J.:VILLARAMA, JR., J.:JARANILLA, J.:HULL, J.:BUTTE, J.:MALCOLM, J.:RECTO, J.:GODDARD, J.:ARAULLO, J.:VICKERS, J.:LADD, J.:VICKERS, J.:STREET, J.:OSTRAND, J.:JOHNS, J.:ROMUALDEZ, J.:VILLAMOR, J.:PEREZ, J.:YULO. C.J.:AVANCEÑA, J.:FISHER, J.:PABLO, M.:MOIR, J.:CARPIO, ACTING CJ.:TRACEY, J.:VILLA-REAL J.:AVANCEÑA, C.J.:ARAULLO, C.J.:ELLIOTT, J.:HORRILLENO, M.:AVANCEÑA, J.:LOBINGIER, J.:BRIONES, M.:GOMEZ, J.:NARVASA, C.J.:HERMOSISIMA, JR., J.:FRANCISCO, J.:TORRES, JR., J.:J. STEVENS-ACTING CLERK OF COURTHORRILLENO, J.:V. ALBERT, CLERK, SUPREME COURT, P.I.DIOKNO, M.:PADILLA, M.:CRUZ, J.:NOCON, J.:FELICIANO, J.:
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“1. In finding the appellant responsible for the
alleged loss of a ‘par de pendientes’ said to belong to Pacita Yap, and
for the alleged loss of two coats said to belong to Ramon Ho and
Catalino Ho, and for requiring the appellant to return the properties
above mentioned to their alleged owners.

“2. In failing to find and consider, with respect
to the charge of habitual delinquency in this case, the existence of one
mitigating circumstance, that of voluntary confession of former
conviction; and in imposing upon the appellant an additional penalty of
seven (7) years, four months, and one (1) day of prision mayor,
instead of only six (6) years and one (1) day of prision mayor,
for appellant’s being a habitual delinquent.”

All the stolen articles were found in the possession
of the appellant and recovered, except the pair of earrings and two
coats mentioned in the first assignment of error. The evidence shows
that when the accused jumped out of the window Ramon Ho cried “thief,
thief!”; that Pascual Gatdula pursued and captured the defendant and
brought him back to the house of the complaining witnesses within five
or six minutes after the robbery was perpetrated. The articles now in
question were not found on the person of the defendant, nor does it
appear that the defendant had dropped them or thrown them away, and
under these circumstances we are constrained to think that the evidence
is insufficient to prove beyond a reasonable doubt that said articles
were taken by the defendant, and the decision of the lower court is
accordingly modified with respect thereto.

In the second assignment of error it is contended
that as to the habitual delinquency the defendant was entitled to one
mitigating circumstance because he voluntarily confessed his former
convictions. There is clearly no merit in this contention. The seventh
mitigating circumstance mentioned in article 13 of the Revised Penal
Code is that the offender had voluntarily surrendered himself to a
person in authority or his agents, or that he had voluntarily confessed
his guilt before the court prior to the presentation of the evidence for
the prosecution.

In the case at bar the defendant did not plead
guilty or confess his guilt prior to the presentation of the evidence
for the prosecution, but after the fiscal had presented his evidence as
to the crime in question, the defendant admitted that he had been twice
convicted as alleged in the information. Furthermore, we have held in
the case of People vs. Tanyaquin (57 Phil, 426), that
in imposing the penalty for habitual delinquency the trial judge is not
bound by the usual rules respecting the mitigating and aggravating
circumstances prescribed by the Code as to the principal penalty.

The defendant is a recidivist because of his prior
convictions, and this fact must be taken into consideration in fixing
the principal penalty as well as for the purpose of proving habitual
delinquency. (People vs. Melendrez, 59 Phil., 154.)

The defendant is not entitled to the benefit of the
Indeterminate Sentence Law, because he is a habitual delinquent.

The appellant is therefore sentenced to suffer a
principal penalty of three years, six months, and eleven days of prision
correccional, and an additional penalty of seven years, four
months, and one day of prision mayor.

With the modifications herein above stated, the
decision appealed from is affirmed, with the costs against the
appellant.

Street, Abad Santos, Hull, and Diaz,
JJ., concur.