[G.R. No. 10854. January 21, 1916. ]
THE UNITED STATES, Plaintiff-Appellee, v. NG TUY, Defendant-Appellant.
J. N. Wolfson for Appellant.
Attorney-General Avanceña for Appellee.
1. CRIMINAL LAW; APPEAL; SEVERE PENALTY IMPOSED UNDER A WRONG THEORY. — The Supreme Court, whenever it finds that a severe penalty has been imposed upon a wrong theory, will modify it.
D E C I S I O N
JOHNSON, J. :
This defendant was charged with a violation of the Opium Law, was arrested, arraigned, plead not guilty, was tried, found guilty of the crime charged, and sentenced to be imprisoned for a period of 6 months and to pay a fine of P300 and the costs, with subsidiary imprisonment in case of insolvency. From that decision the defendant appealed to this court. The appellant, through his attorney, presents a question of fact only in this court.
The complaint alleged that on or both the 2d of February, 1915, in the city of Manila, the accused did then and there willfully, unlawfully, and feloniously have in his possession and under his control, twenty centigrams of morphine, a prohibited drug, contrary to law.
It appears from the record that on or about the 2d of February, 1915, the defendant lived in a house on Calle Ilangilang, city of Manila; that about 7 o’clock a.m. of said day several policemen went to his residence and after having gained admission, found within said house a small package, containing a small quantity of morphine, and other effects, consisting of a glass tube, part of a syringe, a needle used in cooking opium, two spoons, etc., all of which were found in the room which the defendant occupied. The body of the defendant was examined and it appeared clearly that he had been in the habit of using opium by injections. The lower court found that the defendant had been several times previously convicted for a violation of the Opium Law, and for that reason evidently, imposed the penalty of six months of imprisonment and a fine of P300.
An examination of the record fails to show any evidence whatever of the fact that the defendant had been previously convicted of the same offense. In view of that fact, we are of the opinion, and so hold, that the sentence of the lower court should be modified.
It is evident, from a reading of the decision of the lower court, that the severe penalty imposed of six months imprisonment and a fine of P300, was imposed upon the theory that the defendant had therefore been convicted several times of the same offense. That theory was erroneous, for the reason that the record contains no proof of a former conviction.
In view of the fact that the severe penalty imposed was imposed upon a wrong theory, we are of the opinion that it should be modified. 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 P300 and in case of insolvency to suffer subsidiary imprisonment in accordance with the provisions of the law, and to pay the costs. So ordered.
Arellano, C.J., Torres, Carson, Moreland, and Trent, JJ., concur.
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