Pedro Soriano y Sison was charged in the Court  of First Instance of Manila with  the  crime of frustrated theft  committed as follows, to wit:

"That on  or  about the 6th day of March, 1931, in the City of Manila,  Philippine Islands, the said accused  willfully, unlawfully, and feloniously, with intent of gain and without the consent of the owner thereof, took and was in the act of  carrying away the  fighting rooster valued at P15 belonging to  Antonio Borja, thus performing all the acts of execution which  should produce the crime  of theft as a consequence, but which, nevertheless, did not  produce it by reason of causes independent of the will of the accused, that is, the timely arrival of the said Antonio Borja,  who having surprised the said accused in the criminal act caused the accused to let  loose  the  said rooster and to leave the same in the premises  of  the  said owner.

"That the said accused is a habitual criminal within the purview of Act  No. 3586, he having  previously been  convicted by final  judgments of competent courts seven  (7) times of the said crime of theft and once (1) of attempted robbery within a period of ten  (10) years  from the date of his last conviction on June 9, 1924."

After the hearing,  during which £he defendant had the benefit of counsel,  he was found  guilty of the  crime of attempted theft, and was sentenced to pay a fine  of 325 pesetas  or P65, with subsidiary imprisonment in case of insolvency, and to pay the costs ; he was further sentenced to the additional penalty of twenty-one years' imprisonment as an habitual criminal in accordance with subsection (d) of Act No.  3586.   The defendant appealed.

The record shows that in the  early morning of  March 6, 1931, the  aforementioned appellant went to the veranda of the complainant,  Antonio Borja, and tried to carry away his  game  cock; he was  untying  the cock with the evident intent of taking it away, when  Borja approached and foiled his  attempt to steal it.   When the appellant became aware of  Borja's presence, he let go of the cock and ran away, with Borja and one Aquino in pursuit; he was finally caught and arrested by policeman Arcadio Rivero who had also appeared upon the scene  and assisted in the capture of the appellant.

The appellant has been seven times convicted of the crime of theft and once of attempted robbery, his last two convictions having taken place on June 9, 1924, within ten years immediately preceding his conviction in the instant case.

The defense  raises two  questions, one of fact and the other of law.   The first is that the evidence is not  sufficient to sustain a conviction of the crime of which  he has been  found  guilty.   The facts, as established by the evidence, fully support the finding of the defendant's guilt. The second  question  is that the Law  on Habitual Delinquency is  unconstitutional as being ex  post facto, discriminatory, and imposes a double penalty for the same offense. Not one of these contentions is supported by the law.  We have  already held in People vs.  Sierra (G.  R. No.  28516, April  21,  1928)1; People vs.  Ortezuela (51 Phil.,  857); People vs.  Madrano (53 Phil., 860) ; and People vs. Montera (55 Phil.,  933),  that the  law  in  question is  valid and constitutional and suffers from none of the defects attributed to  it by the defense; and  in the  case of  People vs. Abuyen  (52 Phil., 722), it  was further held that the said law is applicable to both consummated and frustrated  or attempted  crimes.

The judgment  appealed from being in accordance with the law, it is hereby  affirmed  in  its entirety,  with costs against the appellant.   So ordered.

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