EN
BANC
THE
UNITED STATES,
Plaintiff-Appellee,
G.
R.
No. 10299
August
3, 1915
-versus-
ONG YEC SO,
Defendant-Appellant.
D
E C I S I
O N
CARSON,
J :
There
can be no reasonable
doubt of the guilt of the accused of the offense of which he was
convicted
in the Court below, unless it be held that the witnesses for the
prosecution
willfully and maliciously testified falsely against him. We find
nothing
in the record which would justify us in arriving at such a conclusion.
The penalty imposed
by the trial judge does not appear to be excessive, taking into
consideration
all the circumstances disclosed by the record. The trial judge properly
took into consideration the evidence as to a former conviction, not for
the purpose of imposing the penalty authorized by the statute in cases
of recidivism, but as a ground for the imposition of a somewhat more
severe
penalty than the minimum prescribed by law.
Section 2 of Act No.
2381, which defines and penalizes the unlawful use and possession of
opium,
provides that "the violation of any provision hereof shall be
punished
by a fine of not less than three hundred nor more than ten thousand
pesos
and imprisonment not less than three months nor more than five years,
and
in case of recidivism incident to the commission of a second or
subsequent
offense under the provisions of this section, the delinquent may be
deported
if not a citizen of the United States or of the Philippine Islands."
From the express terms
of the statute, it is clear that the penalty prescribed in case of
recidivism
can be imposed only in those cases wherein there has been a previous
conviction
under this statute, and that a former conviction under the old law is
not
sufficient for that purpose.
We are of opinion,
however, that in the exercise of the wide discretion in the imposition
of penalties conferred upon the cCourts under this statute, it is
proper
and just to take into consideration former convictions for violations
of
the old Opium Law as the ground for the imposition of the prescribed
penalties
in a somewhat more severe form than that which should be applied to a
first
offender.
The judgment convicting
and sentencing the appellant should, therefore, be affirmed, with the
costs
of this instance against the appellant. So ordered.
Arellano, C.J.,
Torres, Johnson, Trent and Araullo, JJ., concur. |