[ G.R. No. 38948. November 18, 1933 ] 58 Phil. 796
[ G.R. No. 38948. November 18, 1933 ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. TOMAS MANANSALA ET AL., DEFENDANTS. GALICANO ALON AND RICARDO CABRALES, APPELLANTS. D E C I S I O N
VICKERS, J.:
The appellants Galicano Alon (alias Grego), and Ricardo Cabrales (alias Maning), together with Tomas Manansala, Generoso Jacinto, and Isidro Mendoza, were prosecuted in the Court of First Instance of Manila for the crime of estafa, committed as follows:
“That on or about the 19th day of February, 1932, in the municipalities of Pasay and Caloocan, Province of Rizal, within two and a half miles from the city limits and within the jurisdiction of this court, and in the City of Manila proper, Philippine Islands, the said accused conspiring and confederating together and helping one another, did then and there wilfully, unlawfully, and feloniously defraud one Perfecto Abordo in the following manner, to wit: the said accused by means of false and fraudulent representations which they made to the said Perfecto Abordo to the effect that they had for sale six hundred (600) tins of opium, a prohibited drug, and that they would deliver the same to him upon paying them WOO in advance and by means of other similar deceit, induced the said Perfecto Abordo to give and deliver to them, as in fact he gave and delivered to them, the said sum of P600, in consideration of which the accused gave him a gasoline can which they represented to contain the 600 tins of opium, when in truth and in fact, as the said accused well knew, the said can contained only six small tin cans containing a black substance which was not opium, the accused thereby wilfully, unlawfully, and feloniously defrauding the said Perfecto Abordo in the sum of P600 to his damage and prejudice in said amount.
“That the accused Toxnas Manansala y Velasco and Galicano Alon y Ponce (alias Grego) have each once been convicted of the crime of estafa; and the accused Ricardo Cabrales y Pelorina (alias Maning) and Isidro Mendoza y Santos Sollo are habitual delinquents, the first having been convicted once for robbery, once for theft and three times for estafa, having served his last sentence on February 4, 1927, and the second having been convicted one of estafa and once of robbery, having served his last sentence on October 30, 1922, all of said convictions having been rendered by virtue of final judgments of competent courts.”
After the prosecution had rested, the information was dismissed as to the defendants Tomas Manansala, Generoso Jacinto, and Isidro Mendoza for lack of evidence to show that they had taken part in the commission of the crime. Upon the termination of the trial, Judge Pedro Concepcion found the defendants Galicano Alon and Ricardo Cabrales guilty of estafa, in accordance with the provisions of article 354. No. 2, of the Penal Code, as amended by Act No. 3244, and sentenced each of them to suffer four months and one day of arresto mayor, with the accessory penalties prescribed by law, to indemnify the offended party, Perfecto Abordo, in the sum of P600, with subsidiary imprisonment in case of insolvency, and to pay the proportionate part of the costs.
The trial judge’s findings as to the facts are as follows:
“With respect to the other accused, Galicano Alon and Ricardo Cabrales, the evidence for the prosecution sufficiently shows that about a week prior to February 19, 1932, the former, who gave his name as ‘Grego’ and the latter known by the name of ‘Maning’ in company with another person whom they called ‘Pepe’ offered to sell Attorney Perfecto Abordo 17,000 tins of opium at P1.50 each telling him that he could sell them for P10 a tin. Tempted with the prospect of an enormous profit, Mr. Perfecto Abordo agreed to buy the merchandise, and the accused agreed to sell it to him in lots of 1,000 tins at P600 lot. It was agreed that the delivery of 1,000 tins would take place at 5.30 p. m., at the corner of Taft Avenue Extension and Vito Cruz, within the jurisdiction of this city. Attorney Perfecto Abordo accordingly went to the place indicated with the money, and there waited for them. The accused Galicano Alon arrived alone in an automobile and invited Abordo to go with him to the place where the 1,000 tins of opium were kept. Trusting Galicano Alon, who always called Abordo ‘brother’ because he claimed to be a Mason like Mr. Abordo, the latter went with him in his automobile to the rotunda of Rizal Avenue Extension. Chauffer Jose Jonsay was at the wheel. It was already twilight when they arrived at the rotunda, and there they met Maning, or the accused Ricardo Cabrales, who, in company with others, was waiting for Abordo in another automobile. The accused Cabrales alighted and shortly thereafter appeared Pepe who was ordered by Cabrales to get the tins of opium. Pepe got from a lot nearby the can Exhibit A, the top of which was opened by Cabrales in order to show Abordo the six tins of opium contained in a wooden box, Exhibit B, which Abordo saw when the top of said Exhibit A was opened. Finding that said tins really contained opium, Abordo believed that the rest of the contents of the can also consisted of tins of opium. He handed the six hundred pesos to Maning, who, after receiving the money, immediately went to the automobile where his companions were waiting. At the same time Abordo returned to his car with the accused Galicano Alon and the person named Pepe, carrying the can. While proceeding towards Taft Avenue Extension Abordo noticed that the accused Cabrales was following in his automobile, and that when they were nearing the corner of Taft Avenue Extension and Vito Cruz the car in which Cabrales was riding attempted to block Abordo’s way, while Galicano Alon told Attorney Abordo that those in the other automobile were constabulary men and it would be better to get rid of the can Exhibit A. The accused Cabrales, whom Attorney Abordo was able to recognize very well, and the companions of the former whom Abordo was not able to identify because it was already dark, approached his car saying that they were constabulary agents and told Abordo that he was under arrest. Knowing that they were not constabulary agents and that their purpose was to get possession of the can Exhibit A, Abordo drew his revolver and ordered his chauffeur to proceed. Cabrales and his companions again followed him in their car and for the second time tried to head off Abordo somewhere before the intersection of F. B. Harrison and Vito Cruz streets, but Abordo proceeded until he arrived at his house. There he opened the can Exhibit A and inside he found the wooden box Exhibit B, but the rest of the contents of the can was sand. He bore a hole in one of the tins and found that it only contained molasses.
“The accused tried to give, by their testimony and that of Miguel Rosales, who had been convicted twelve times of estafa, a long story to the effect that Abordo engaged the accused Cabrales, through the intervention of Miguel Rosales, to prepare 1,000 tins of molasses resembling tins of opium, and that on the afternoon agreed upon for the payment of the value of said tins, Abordo refused to deliver the money on the pretext that the purchaser of said tins had not arrived, and invited the accused to his house in Pasay in order to make the payment inasmuch as they insisted upon collecting from him; but before arriving in Pasay Cabrales stopped Abordo’s automobile and required the latter to hand over the money, at the same time placing at the side of Abordo’s automobile a sack which he said contained the 1,000 tins of molasses asked for by Abordo.
“It is hardly necessary to state that this story is a sheer fabrication.”
The attorney for the appellants makes the following assignments of error:
“I. El Juzgado incurrio en error al declarar que las pruebas demuestran que Ricardo Cabrales y Galicano Alon, en compañia de otro individuo llamado ‘Pepe’, vendieron al abogado Perfecto Abordo mil latas de opio falsificado por el precio de P600.
“II. El Juzgado incurrio en error al no declarar que el supuesto ofendido, Perfecto Abordo, por medio de Miguel Rosales, encomendo a Ricardo Cabrales la confeccion de mil latas de opio al precio de P0.60 cada lata poniendo como contenido melaza, para venderlas como opio legitimo.
“III. El Juzgado incurrio en error al no declarar que aun en el supuesto de que en realidad Ricardo Cabrales vendio a Perfecto Abordo dichas mil latas de opio por el precio de P600, el acusado Galicano Alon nada tiene que ver con dicha venta.
“IV. El Juzgado incurrio en error al no absolver a los acusados apelantes, apreciando cuando menos en favor de los mismos y sobre todo en favor del apelante Galicano Alon, el beneficio de la duda racional.”
The assignments of error raise only questions of fact, depending on the credibility of the witnesses. No reason has been adduced that would justify us in disturbing the findings of the trial judge. As to the contention of the appellants, the trial judge found it to be a mere fabrication and worthy of no credit. The witnesses for the defense were Miguel Rosales and the appellants themselves. The evidence shows that Miguel Rosales had been convicted of the falsification of commercial documents in twelve cases. The appellant Galicano Alon had been convicted of estafa, and the other appellant, Ricardo Cabrales, had been convicted once of robbery, once of theft, and three times of estafa. The trial judge was fully justified in disbelieving the improbable story of said witnesses.
The crime committed by the appellants is that of estafa as defined in article 315, paragraph 1 (a) of the Revised Penal Code, which provides that any person who shall defraud another through unfaithfulness or abuse of confidence by altering the substance, quantity, or quality of anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration. The amount of the fraud being P600, the penalty applicable is arresto mayor in its maximum period to prision correccional in its minimum period, and it appearing that the appellant Galicano Alon has already been convicted of estafa, he is therefore a recidivist, and the penalty applicable to him should be imposed in the maximum degree.
It was alleged in the information that Ricardo Cabrales was a habitual delinquent because he had been convicted once of robbery, once of theft, and three times of estafa, and that the last penalty for estafa was extinguished by him on February 4, 1927. These prior convictions were admitted by him in open court. He is therefore a habitual delinquent, but his prior convictions can not be taken into consideration also as an aggravating circumstance for the purpose of increasing the principal penalty, which should therefore be imposed in the medium degree.
As to the additional penalty, the Solicitor-General recommends the medium degree of prision mayor in its minimum and medium periods, or from six years and one day to seven years and four months. This is erroneous. It is apparently based upon the mistaken idea that only the prior convictions of this appellant for estafa are to be taken into account. The correct interpretation of the law is that all prior convictions of any of the crimes of theft, robbery, estafa, or falsification should be taken into account when a person is convicted of any one of these crimes and of being a habitual delinquent. To hold otherwise, a person might be twice convicted of each of these four crimes, and still not be a habitual delinquent.
For the foregoing reasons, the appellant Galicano Alon is sentenced to suffer one year, eight months, and one day of prision correccional, and the appellant Ricardo Cabrales is sentenced to suffer one year and one day of prision correccional, and said defendants are jointly and severally sentenced to indemnify the offended party in the sum of P600, with the corresponding subsidiary imprisonment in case of insolvency. The appellant Ricardo Cabrales having been previously convicted five times of theft, robbery, or estafa, he is sentenced as a habitual delinquent to suffer an additional penalty of eleven years, six months, and twenty-one days of prision mayor.
As thus modified, the decision appealed from is affirmed, with the costs against the appellants.
Street, Malcolm, Villa-Real, Hull, and Imperial, JJ., concur.