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[ GR No. L-7928, Nov 29, 1957 ]



102 Phil. 461

[ G. R. No. L-7928, November 29, 1957 ]




Appeal from a decision of the Court of First Instance of Manila. Appellant was charged in said court with a crime of estafa committed according to the information in the following1 manner;
"That in or about and during the period comprised between sometime in the month of March and the 7th. day of April, 1952, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud one Carmen Miranda in the following manner, to wit; the said accused received from said Carmen Miranda documents showing" ownership by the latter of a house located at 1259 Juan Luna, Tondo, in said city, together with the real-estate tax receipt No. 36314 dated January 2, 1952 for the purpose of securing: for said Carmen Miranda a loan ,on said house in the sum of P500 under the express obligation on her part of turning over the cash amount to be secured as a loan thereof If she was able to do so or to return the documents showing ownership of said house within fifteen (15) days from receipt thereof to said Carmen Miranda; but the said accused, once in possession of said documents by means of which a loan in the sum of P380 was obtained, with intent to defraud and far from complying with her aforementioned obligations despite demands made upon her to do, willfully, unlawfully and feloniously misappropriated, misapplied and converted the sum of P380 which was the amount of the loan secured from Uy Cheuy on said property, to her own personal use and benefit, to the damage and prejudice of said Carmen Miranda and/or Uy Chuey in the aforementioned sum of P380,   Philippine currency."
Upon arraignment appellant pleaded not guilty but after one witness had testified for the prosecution, appellant declared that she was willing to plead guilty. Thereupon her former plea was set aside and when informed of the charged she pleaded guilty. So the court found her guilty as charged in the information and sentenced her to five (5) months of arresto mayor, with the accessory penalties prescribed by law, to indemnify the offended party in the sum of P380, with subsidiary imprisonment in case of insolvency which shall not exceed one-third of the principal penalty, and to pay the costs. Appellant not being agreeable to this decision has appealed therefrom to this Court*

On this appeal counsel de oficio states that after a study of the record he finds no error in the decision appealed from. The Solicitor Genera], however, argues that the sentence imposed is not in accordance with the Indeterminate Sentence Law. We find this argument to be valid. The Indeterminate Sentence Law provides as follows:
"SEC. 1- Hereafter, in imposing" a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same."
The penalty prescribed for the offense charged in the information is arresto mayor in its maximum to prision correctional in its minimum period. The duration is four (4) months and one (1) day to two (2) years and four (4) months. As the offense was committed without any aggravating or mitigating circumstance the appellant should have been given a penalty of from one (1) year and one (1) day to one (1) year and eight (8) months of prision correctional as maximum and from one (1) month and one (1) day to four (4) months of arresto mayor as minimum (Article 61, Nos. 4 and 5, and Article 65, Revised Penal Code). It was, therefore, incorrect for the trial judge to sentence the appellant to five  (5)  months.

Wherefore, the judgment appealed from is hereby modified and the appellant, sentenced to suffer a maximum penalty of one (1) year and one (1) day of prision corretional and a minimum of three (3) months of arresto mayor. In all other respects the decision appealed from is affirmed.

Paras, C. J., Bengzon, Padilla, Montemmjor, Reyes, A., Bautista, Angelo, Concepcidn, Reyes, J. B. L., Endencia, and Felix, JJ., concur.