[ G.R. No. L-81. January 07, 1947 ] 77 Phil. 809
EN BANC
[ G.R. No. L-81. January 07, 1947 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. ANTONIO MAPE, DEFENDANT AND APPELLANT D E C I S I O N
MORAN, C.J.:
This is an appeal from a judgment of the Court of First Instance of Manila convicting the herein appellant of the crime of robbery and imposing an indeterminate sentence of not less than two years, four months and one day of prisión correccional, nor more than eight years and one day of prisión mayor, to indemnify Gen. J. T. Smith, one of the offended parties in the sum of P117, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs.
On August 7, 1945, at about 3 o’clock a.m., appellant Antonio Mape and a companion whom he named as Andres Salas (still unapprehended), entered the house occupied by Brigadier-General J. T. Smith and Lt. W. Gallows at No. 47 Gilmore street, Quezon City, by breaking through the wire screen of the kitchen door. Once inside the house, appellant Mape went into the room occupied by Lieutenant Gallows, while Salas entered another. Just as appellant was leaving the room of Lieutenant Gallows, the latter, who was then in bed but awake, pursued and caught him. General Smith then came and helped Lieutenant Gallows in subduing appellant. When the police arrived, upon call, they found in appellant’s possession a wallet valued at P5, a fountainpen valued at P15, and P100 in cash, all belonging to Lieutenant Gallows. Meanwhile, appellant’s companion had escaped and from Gen. Smith’s room there were missing a wrist watch valued at P100 and a Parker fountainpen valued at P17.
Appellant alleges drunkenness as a defense, claiming that his companion Salas made him drunk prior to their going to the house of the offended parties. This uncorroborated statement of appellant reveals itself clearly as an attempt to tinge with truth his allegation that his nocturnal visit had for its purpose a purely business transaction. The fact, however, that the stolen articles including the amount of P100 belonging to Lieutenant Gallows were found in his possession immediately after his apprehension within the house itself and at the unusual hour of 3 o’clock a. m., discredits this unsupported defense. The records of the case prove appellant’s guilt beyond reasonable doubt.
The crime having been committed at night time, the aggravating circumstance of nocturnity enters into consideration. The mitigating circumstance of drunkenness not having been creditably established, cannot serve to offset the aggravating circumstance of nocturnity.
The applicable portion of article 299 of the Revised Penal Code reads:
“When said offenders do not carry arms and the value of the property taken does not exceed 250 pesos, they shall suffer the penalty prescribed in the two next preceding paragraphs, in its minimum period.”
The penalty prescribed in the “two next preceding paragraphs” is the next lower in degree to prisión mayor in its medium period to reclusión temporal in its minimum period, which would be prisión correccional medium to prisión mayor minimum. The minimum of this, namely, prisión correccional medium, is the penalty in cases where the offenders do not carry arms and the property taken does not exceed 250 pesos, as in the instant case. Due to the presence of one aggravating circumstances—nocturnity—this penalty of prisión correccional medium must be applied in its maximum period as provided for in section 3 of article 64. After dividing prisión correccional medium into three periods, its maximum period would be 3 years, 6 months and 21 days to 4 years and 2 months.
The minimum of the penalty in this case must be computed in connection with the Indeterminate Sentence Law which provides in its section 1, that the minimum of the indeterminate penalty “shall be within the range of the penalty next lower to that prescribed by the Code for the offense.” For purposes of the Indeterminate Sentence Law, the penalty next lower should be determined without regard as to whether the basic penalty provided by the Code should be applied in its maximum or minimum period as circumstances modifying liability may require. (People vs. Gonzalez, 73 Phil., 549). In the instant case, prescinding from the circumstances modifying criminal liability which are the fact that the offender did not carry arms and the amount taken was less than 250 pesos, and the aggravating circumstance of nocturnity, the basic penalty would be that “prescribed in the two next preceding paragraphs,” namely, prisión correccional medium to prisión mayor minimum. It is from this basic penalty that the penalty next lower in degree must be computed. In accordance with section 4, article 61, of the Code, this penalty next lower would be arresto mayor medium to prisión correccional minimum, from within the range of which the minimum of the penalty in this case must be taken for purposes of the Indeterminate Sentence Law.
Judgment is accordingly modified and appellant is sentenced to the indeterminate penalty of 2 months and 1 day to 4 years and 2 months. In all other respects, the judgment appealed from is affirmed, with costs.
Pablo, and Tuason, JJ., concur.