Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44370 January 11, 1936
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CO CHO (alias NGO CO, GO CO, TAN HUA), defendant-appellant.
Arsenio P. Dizon for appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEŅA, C.J.:
The accused appeals from the judgment rendered by the Court of First Instance of Manila sentencing him, for the crime of theft of articles and money amounting to P33.50 belonging to Hong Liong, to the penalty of from four months and one day of arresto mayor, as the minimum, to two years and four months or prision correccional, as the maximum, with the costs.
Hong Liong lived with other Chinese, among them Tee Chuang Tian, in house No. 621, Magdalena Street, Manila On the night of August 21, 1935, Hong Liong and his companions slept with the windows open and the door locked at dawn of said date, Tee Chuang Tian, having noted that the door was open, awoke his companions. Hong Liong noted that his pants, where he had placed his watch valued at P28, and a wallet containing P3 in bills and two sweepstakes tickets which he had in his coat, had disappeared. Hong Liong later found his pants, minus the watch, under the house, and the wallet, minus the bills and the sweepstakes tickets, under the bed.
At that same dawn, policeman Danganan, then on duty the streets of Manila, having seen the accused in a suspicious attitude, coming out of several houses, placed him under arrest, finding a watch, four one-peso bills and small change amounting to P1.25 in his possession. After having been submitted to an investigation in the police station, the accused admitted that he stole the watch found in his possession and the bills amounting to P3 from the house No. 621, Magdalena Street, by passing through the window of the water closet. While the investigation was in progress, notice that a robbery had been committed in the house No. 621, Magdalena Street, was received in said police station.
There is no doubt that it was the accused who stole the watch, bills and sweepstakes tickets belonging to Hong Liong in the house where the latter lived. The information filed against the accused is for the crime of robbery. The court, however, found that the crime committed is theft and imposed the penalty corresponding thereto upon the accused.
After having examined the evidence, this court is of the opinion that the crime committed is robbery as charged in the information, the accused having entered the house through the window which is not intended for entrance, as admitted by him in the police station. Such must have been the case because the door was locked from with and it could not have been opened from the outside to enable entrance through it without violence. Hong Liong testified that before he went to sleep he told Tee Chuang Tian to lock the door. Tee Chuang Tian testified that he really locked the door before he went to sleep that night. This shows that the accused entered the house through one of the open windows, as admitted by him. Furthermore, there is evidence that there were finger prints noted on one of the windows. That the door might have been opened from within by one of the residents of the house, thus permitting the accused to enter through it, is a mere possibility which cannot be accepted as a fact without affirmative evidence to that effect.
These facts constitute the crime of robbery defined and punished in article 299, paragraph (a), subsection 1, of the Revised Penal Code, it having been committed without arms and the value of the articles taken being less than P250. The aggravating circumstance of recidivism, the presence of which is admitted by the accused, should be taken into consideration.
Wherefore, modifying the appealed judgment, the appellant is sentenced, pursuant to the provision above cited, to the penalty of from one year, as the minimum, to three years, six months and twenty-one days of prision correccional, as the maximum, with the costs. So ordered.
Abad Santos, Hull, Vickers, and Recto, JJ., concur.
The Lawphil Project - Arellano Law Foundation
