[G.R. No. 10397. August 3, 1915. ]
THE UNITED STATES, Plaintiff-Appellee, v. GO SENG, Defendant-Appellant.
Antolin Frias for Appellant.
Acting Attorney-General Zaragoza for Appellee.
1. OPIUM LAW; FORMER CONVICTIONS; PENALTY. — In a prosecution for a violation of the Opium Law, the fact that the defendant had been found guilty of a violation of the same law twice before is sufficient to justify the court in imposing a more severe penalty.
D E C I S I O N
This defendant was charged with a violation of the Opium Law. The complaint alleged "that on or about December 24, 1913, within the municipal limits of the municipality of Cebu, of this province and judicial district, the said Go Seng, being in no manner authorized by law, did willfully, unlawfully, and criminally smoke, chew, swallow, and inhale opium, thus incurring the risk of becoming a recidivist; with violation of the law."cralaw virtua1aw library
After hearing the evidence, the Honorable Cayetano Lukban, auxiliary judge of the Court of First Instance of the Twentieth District, found the defendant guilty of the crime charged and sentenced him to pay a fine of P350 and costs, and to suffer subsidiary imprisonment in case of insolvency.
From that sentence the defendant appealed to this court. A question of fact only is presented by the Appellant.
From an examination of the evidence, we find that two witnesses, whose credibility has not been impeached in the slightest degree, swore positively that they caught the defendant in the act of smoking opium. The pipe used and the opium which was found in the possession of the accused were presented as proof during the trial of the cause. In addition to that proof, we find from an exhibit presented during the trial of the cause that the defendant had heretofore been accused and found guilty of a violation of the Opium Law, and had been sentenced, on the 29th day of September, 1910, to pay a fine of P350.
The Attorney-General, in view of the fact that the defendant had been once before convicted of the same crime, recommends that the sentence of the lower court be modified, and that in addition to the fine imposed by the lower court, a sentence of imprisonment for a period of three months be also imposed.
With that recommendation we are inclined to agree. We think, in view of the fact that the defendant has been found guilty of a violation of the Opium Law twice, that the penalty to be imposed for the second offense should be more severe than that which was imposed for the first offense. (See U. S. v. Lim Sing, 23 Phil. Rep., 424.)
Therefore, the sentence of the lower court is hereby modified and it is hereby ordered and decreed that the defendant be sentenced to be imprisoned for a period of three months and to pay a fine of P350 and the costs, and in case of insolvency to suffer subsidiary imprisonment in accordance with the provisions of the law. So ordered.
Arellano, C.J., Torres, Carson, Trent and Araullo, JJ., concur.