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EN BANC

G.R. No. 2231  April 26, 1905

THE UNITED STATES,Complainant-Appellee, vs. EVARISTO PAYNAGA,Defendant-Appellant.

W. A. Kincaid for appellant.
Office of the Solicitor-General Araneta for appellee.

JOHNSON, J.:

This defendant, together with Fernando de la Cruz and others, was charged with the crime of robbery. The complaint charged that on or about the 27th day of January, 1904, in the city of Manila, Philippine Islands, the said Fernando de la Cruz, Dalmacio Asmao, and Evaristo Paynaga did willfully, unlawfully, and feloniously, in the nighttime, with the intent of profiting thereby and without the consent of the owner thereof, enter the house occupied by Captain C. F. Garry, Mrs. C. F. Garry, and others, by wrongfully entering and by breaking through and forcing doors and windows, and did take and carry away of the personal property of the said Captain C. F. Garry the following-described articles [here appears an enumeration of the articles stolen], with a total value of $1,013.25. United States currency, contrary to the law in such cases made and provided.chanroblesvirtualawlibrary chanrobles virtual law library

When the defendants were arraigned in the Court of First Instance of the city of Manila the said Fernando de la Cruz pleaded guilty, and was sentenced to be imprisoned for a period of three years and six months of presidio correccional, with the accessories of article 58 of the Penal Code, and to return to the said Garry, together with the other accused, Dalmasio Asmao and Evaristo Paynaga, the jewelry which had not been recovered or to pay to the said Garry, or his wife, 1,464 pesos, and to suffer subsidiary imprisonment in case of insolvency, and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

After hearing the evidence against Paynaga the court found that he had not taken any direct part in the execution of the robbery charged in the complaint, but that he had taken an indirect part in the commission of the robbery, and therefor sentenced him to be imprisoned for a period of two years and four months of presidio correccional, with the accessories of article 58 of the Penal Code, and to return, together with the other accused, Dalmasio Asmao and Fernando de la Cruz, the jewelry and effects not recovered, or to pay to the said Garry and his wife the sum of 1,464 pesos, and in case of insolvency to suffer subsidiary imprisonment.chanroblesvirtualawlibrary chanrobles virtual law library

An examination of the evidence is sufficient to convince us that the said defendant had taken a direct part in the commission of the crime of robbery, in the manner and form charged in the said complaint, and therefore should be punished under paragraph 5 of article 503 in relation with article 502. it is therefore the judgment of this court that the defendant, Evaristo Paynaga, be sentenced for the period of six years and one day of presidio mayor, and to return, together with Dalmasio Asmao and Fernando de la Cruz, the property not recovered, or to pay to the said Garry and his wife the sum of 1,464 pesos and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C.J., Torres, Mapa and Carson, JJ., concur.