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MALCOLM, J.:
756
took a small box, which was ,also opened with a key, from
which in turn he took a purse containing 461 reales and 20
céntimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards
who were stationed in another room near-by. The court
considered this as consummated robbery, and said: "* *
*' The accused * * * having materially taken
possession of the money from the moment he took it from
the place where it had been, and having taken it with his
hands with intent to appropriate the same, he executed all
the acts necessary to constitute the crime which was
thereby produced; only the act of making use of the thing
having been frustrated, which, however, does not go to
make the elements of the consummated crime." (Decision of
the supreme court of Spain, June 13, 1882.)
There exists the aggravating circumstance that
advantage was taken by the offender of his public position.
Wherefore, in view of the provisions of articles 517 and 518,
No. 5, of the Penal Code, and there being present one
aggravating circumstance compensated by no mitigating
circumstance, the penalty must be imposed in the
maximum degree.
Judgment is reversed and the defendant and appellant
is sentenced to three months and one day of arresto mayor,
with the costs of all instances against him. The
merchandise in question, attached to the record as Exhibit
A, shall be returned to the lawful owner, T. Murakami. So
ordered.
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8/8/2019 PHILIPPINE REPORTS ANNOTATED VOLUME 038
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