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EN BANC

G.R. No. L-47882 April 14, 1941

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NICASIO NERIA Y KALAMBACAL, Defendant-Appellant.

George R. Harvey for appellant.
Office of the Solicitor-General Ozaeta and Solicitor Kapunan, Jr., for appellee.

MORAN, J.:

On September 18, 1940, an information for qualified theft was filed in the Court of First Instance of Manila against defendant. Nicasio Neria y Kalambacal, then a messenger in the Bureau of Forestry, for taking with intent to gain two treasury warrants for P481.75 and P653.02 drawn by said bureau in favor of one Mariano O. Castillo. Upon defendant's plea of guilty, the trial court's condemned him to an indeterminate penalty of from four months and twenty days of arresto mayor, to one year, eight months and twenty-one days of prision correccional, and to indemnify the bureau in the sum of P1,134.77, with subsidiary imprisonment in case of insolvency.chanroblesvirtualawlibrary chanrobles virtual law library

The only question before us is the propriety of the penalty imposed upon defendant. The offense charged falls under the provisions of article 310 in connection with article 309, No. 3, of the Revised Penal Code which, taken together prescribes a penalty of prision correccional in its maximum period to prision mayor in its minimum period. With the mitigating circumstance of plea of guilty, the penalty should be imposed in its minimum period (art. 64. par. 2, Revised Penal Code), or four years, two months and one day, to five years, five months and ten days. Under the Indeterminate Sentence Law. as amended, appellant should be given a minimum which is within the penalty next lower in degree to that prescribed by law for the offense. The penalty next lower in degree to the penalty provided by law, that is, prision correccional in its maximum period to prision mayor in its minimum period, is prision correccional in its minimum and medium periods, the minimum of which is six months and one day to one year, eight months and twenty days. Therefore, the minimum and maximum penalties fixed by the lower court are below the respective proper ranges prescribed by law.chanroblesvirtualawlibrary chanrobles virtual law library

With respect to the indemnity of P1,134.77, it being represented by the Solicitor-General that the treasury warrants were not cashed by the defendant, no pecuniary damage has been done the complainant, and no indemnity can properly be imposed.chanroblesvirtualawlibrary chanrobles virtual law library

Judgment is modified, and appellant is hereby sentenced to the minimum penalty of six months and one day to four years, two months and one day of prision correccional, with the accessories of the law, without indemnity, and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

Imperial, Diaz, Laurel, and Horrilleno, JJ., concur.