FIRST DIVISION

[G.R. No. 10397. August 3, 1915. ]

THE UNITED STATES, Plaintiff-Appellee, v. GO SENG, Defendant-Appellant.
Antolin Frias for Appellant.
Acting Attorney-General Zaragoza for Appellee.
SYLLABUS
1. OPIUM LAW; FORMER CONVICTIONS; PENALTY. In a prosecution for a violation of
the Opium Law, the fact that the defendant had been found guilty of a violation of the same law
twice before is sufficient to justify the court in imposing a more severe penalty.
DECISION
JOHNSON, J. :
This defendant was charged with a violation of the Opium Law. The complaint alleged "that on
or about December 24, 1913, within the municipal limits of the municipality of Cebu, of this
province and judicial district, the said Go Seng, being in no manner authorized by law, did
willfully, unlawfully, and criminally smoke, chew, swallow, and inhale opium, thus incurring the
risk of becoming a recidivist; with violation of the law."
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After hearing the evidence, the Honorable Cayetano Lukban, auxiliary judge of the Court of First
Instance of the Twentieth District, found the defendant guilty of the crime charged and sentenced
him to pay a fine of P350 and costs, and to suffer subsidiary imprisonment in case of insolvency.
From that sentence the defendant appealed to this court. A question of fact only is presented by
the Appellant.
From an examination of the evidence, we find that two witnesses, whose credibility has not been
impeached in the slightest degree, swore positively that they caught the defendant in the act of
smoking opium. The pipe used and the opium which was found in the possession of the accused
were presented as proof during the trial of the cause. In addition to that proof, we find from an
exhibit presented during the trial of the cause that the defendant had heretofore been accused and
found guilty of a violation of the Opium Law, and had been sentenced, on the 29th day of
September, 1910, to pay a fine of P350.
The Attorney-General, in view of the fact that the defendant had been once before convicted of
the same crime, recommends that the sentence of the lower court be modified, and that in

addition to the fine imposed by the lower court, a sentence of imprisonment for a period of three
months be also imposed.
With that recommendation we are inclined to agree. We think, in view of the fact that the
defendant has been found guilty of a violation of the Opium Law twice, that the penalty to be
imposed for the second offense should be more severe than that which was imposed for the first
offense. (See U. S. v. Lim Sing, 23 Phil. Rep., 424.)
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 P350 and the costs, and in case of insolvency to suffer subsidiary imprisonment in
accordance with the provisions of the law. So ordered.
Arellano, C.J., Torres, Carson, Trent and Araullo, JJ., concur.