The accused Marciano Ventura appealed from  the judgment  of the Court of First Instance of Rizal convicting him of the crime  of  estafa and sentencing him to two months and one day  of arresto mayor,  besides the indemnity and accessory penalties of the law applicable to his case, and, as an habitual criminal, to the additional penalty of sixteen years.

The  relevant allegations  of the information filed by the fiscal are as follows:

"That  on or about the 16th day of May, 1930, in the municipality of Makati,  Province of Rizal,  Philippine Islands,  and within  the jurisdiction of this court, the said accused,  Marciano Ventura y Javier (alias Macario Villanueva) (alias Marciano V. del Rosario), through false representations and pretending himself to be an agent of the firm I.  Beck, Inc., received the sum of P21.70 from Adriano Miralles as the first partial  payment for a phonograph case which  the said Adriano  Miralles  purchased  from  I. Beck, Inc., through the representation of the  herein accused, and once in possession of the said sum of P21.70, did then and there willfully, unlawfully, and feloniously, and with intent to defraud the said Adriano Miralles, embezzle  and apply to  his own personal  use and  benefits the said amount of P21.70, to the damage and prejudice of the said Adriano Miralles  in the aforesaid sum, equivalent to  107 1/2  pesetas.

"That  the herein accused is a habitual delinquent under the provisions of Act No. 3397 of the Philippine  Legislature in that he has been six times convicted  of the same crime  by virtue of final judgment handed down by  competent  courts, having been released from jail on September 22,  1929.

"Contrary to law."

A careful study of the evidence  presented at the trial shows  that some days before the date mentioned in the information, the appellant, an acquaintance and friend of the offended party, had offered to sell  the latter a cabinet or gramophone case of the kind sold by I. Beck & Co. for P21.70.  The offended party, who had  on a  prior occasion bought several gramophone records of the appellant, told the latter that he had no money at the time, but that he would buy one  as soon as he had the funds.  The appellant had passed himself off in all these transactions as an agent of I. Beck & Co. On May 16, 1930, in the municipality of San Pedro  Makati, Province of Rizal, the offended party, having sufficient funds,  sought the appellant and told him he had decided to buy the cabinet.  The appellant then replied that they would carry through the sale, and delivery would  be made shortly.  The  offended party, not knowing  the  appellant very well and  being in some doubt, required that the receipt for the price be made out in the presence of the municipal president  of Makati.  They  went to the office of the latter  and in  his presence the offended party  delivered to the appellant the sum of P21.70  agreed upon.  The municipal president  prepared a receipt and required  the appellant  to sign it.  The receipt was marked Exhibit A by the prosecution and reads as  follows:

"I hereby acknowledge receipt of the amount of P21.70 from Mr. Adriano L.  Miralles, resident  of the barrio  of Tejeros, municipality of Makati,  Province of Rizal, Philippine Islands, as a  deposit for the sale of a gramophone cabinet of the firm I. Beck & Company, Inc., of which the undersigned is an  authorized selling agent.

"Makati, Rizal,  May 16th, 1930.

(Sgd.)   "MARCIANO VENTURA

"Witness:

(Sgd.)  "MAXIMO PAULINO"

It was  stipulated  that the  appellant would  deliver the gramophone  cabinet  to the injured party on the following day, but neither on that date nor on any other did he comply with his promise or  return the money he  had received, for which reason the offended party  was  obliged to institute the  instant criminal action.

The appellant assigns the following alleged errors to the judgment appealed from:

"I. The court a quo erred in considering Exhibit A as a receipt for deposit of  the sale of one box of phonograph and not as a mere receipt of debt.

"II. The court  a  quo erred in condemning the herein accused-appellant  guilty of  the crime charged beyond  all reasonable doubt."

Both errors  deal  with the sufficiency of the evidence presented by the prosecution.  We have stated at the beginning that the facts  proved establish the appellant's  guilt beyond a reasonable  doubt.  It cannot be disputed that the latter passed himself off as an agent of I. Beck & Co. and pretended to be in possession of  a cabinet or gramophone case, because of which, the offended party agreed to purchase it, paying and delivering to the appellant, as  in fact he did, the sum of P21.70.  It is likewise beyond question that neither on the date  stipulated nor upon any other subsequent date did the appellant deliver the article he had sold, or return  the price he had received.  With reference to Exhibit A, it is clearly not an acknowledgment of a debt but that the appellant had received the money as the price of the article he had sold.   It follows that the two errors assigned to the judgment appealed from are groundless.   So far  as the evidence of the defense is concerned, the trial court did not err in refusing to rely upon it, for it has failed to overcome that adduced by the prosecution.

There is a controversy in regard to the additional penalty imposed by the  trial court for the reason that the appellant is an habitual criminal.  The record shows  that the latter was convicted and sentenced to imprisonment by the municipal court of Manila, for the crime of  estafa in the following cases:   In No.  B-58022 he was convicted on September 15, 1&18, committed to prison on the 20th of that month, and released on January 19, 1919; in No. B-57987, he was convicted  on  September 20, 1918, committed to prison on the same day and released on January 19,1919; in No. F-56664 he was' convicted  on September 12, 1927, committed  to prison on September 13, 1927, and  released on  June 11, 11928; in No. E-52856 he was convicted  on  September 17, 1927, committed to prison on September 13, 1927, and released  on June  11, 1928; in No. E-96891 he was convicted on July 15, 1929, committed to prison on July 16, 1929, and released on  September  22, 1929; and in No. E-96892 he was convicted on July 15, 1929, committed to prison on July 16, 1929, and released on September 22, 1929.

The trial court found the accused guilty simply of estafa and sentenced him to two months and one day of arresto mayor, with the accessories, indemnity and costs, and as an habitual criminal  held that his first two convictions could not be counted because his conviction and release took place more  than ten years  immediately  preceding the date on which he was last found guilty of estafa, and considering only that he had been Convicted in the remaining cases, imposed  upon him the additional penalty of  sixteen years' imprisonment in accordance with subsection (c) of section 1, Act No. 3586, amending Act No. 3397.

The defense does not question in his brief the propriety of the additional penalty because, as heretofore stated, counsel contends  that  the  appellant should be acquitted.   But the Attorney-General contends that in accordance with Act No. 3586, the six prior convictions of the accused should be taken into consideration, although,  following the rule  laid down in People vs.  Santiago  (55  Phil., 266), and  People vs. Be la Cruz (G. R.  No. 33786, promulgated February 7, 1931 ),¹ said  six prior convictions  are to be considered as equivalent to only three.

In accordance with section 1 of Act No. 3586, the appellant's six prior convictions must be taken into account, since the last, which took place  on July 15, 1929, is included within the ten years  next preceding the date  on which he was last  convicted, that  is, February  21, 1931.   This court  has so uniformly held whenever the question has been raised.   But  following the doctrine laid down in the  Santiago and De la Cruz cases, supra, these six prior convictions must be considered as equivalent to only three, because the accused committed the second crime before his first conviction, and the  fourth before his third conviction, and because the fifth  and sixth crimes were committed on the same day. So that the present conviction being the fourth sustained by the appellant in this cause, the case falls within subsection (b) of section 1 of that law.  With respect to the nature of the crime last committed, the same must be considered as qualified estafa according to article 536 of the Penal Code. The penalty provided for this crime is arresto mayor in its minimum and medium degrees according to case 1, article 534, as amended by section 2 of Act No. 3244; but according to article 536 the penalty must be raised one degree because the accused has been more than twice a recidivist, and the proper penalty is arresto mayor in its maximum period to presidio  correctional in its minimum degree, and  the  medium degree of this penalty is one year and one day to one year and eight months of presidio  correccional.

Wherefore the judgment appealed from  is modified  and the accused-appellant is sentenced to one year and one day of presidio correccional,  to  indemnify the offended party in the amount of P21.70, with subsidiary imprisonment in case of  insolvency,  the accessory penalties  of  article 58 of the Penal  Code,  and  to  the  additional  penalty of ten years' imprisonment as an  habitual criminal, besides the payment of the costs of both instances.  So ordered.

Avanceña, C. J., Johnson, Street, Malcolm,  Villamor, Ostrand, Romualdez, and Villa-Real, JJ., concur.

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¹ Not reported.