The accused  was charged in the Court of First Instance of Manila with attempted theft  with the aggravating circumstance of recidivism.   After trial, wherein she waived her right to present evidence, she was convicted and sentenced to six months and one day of destierro, with the accessory penalties provided for by law and to pay the costs. In due time, she appealed to the Court of Appeals and considering that one of the errors she assigns involves the jurisdiction of  the  trial  court, the case was  certified to this Court under  section  17 (3) of Republic Act 296, as amended.

The only question to be determined  is whether the trial court has jurisdiction to try the offense charged in the information, for if the  answer  is in the negative, then it would be unnecessary  for us to go into the merits of the case.

The offense charged is attempted theft which consists, according to the information, in that the accused "did then and there open the bag of the latter (offended party) containing the sum of P202.00 in cash of different denominations with the evident intent to take, steal and carry away said cash money, but the said accused was not however able to  perform all  the  acts  of execution which would have produced the crime  of theft as a consequence by reason of  causes independent  of  her  (his) own voluntary desistance.  Being an attempted offense, a penalty lower by two degrees than  that prescribed  by law for the consummated felony should  be imposed (Article 51, Revised Penal Code).

Under Article 309 of the same Code, if  the value of the property stolen is more than P200  but does not exceed P2,000, the penalty of  prison correctional in  its minimum and medium periods shall be imposed.  If we reduce this penalty by two degrees, the penalty to be imposed will be destierro in its  maximum period  to arresto  mayor in its minimum period (Art;  71, Revised Penal Code, as amended by section 3, Commonwealth Act No. 217, specially Scale No. 1  thereof),  which, in so far as  the imprisonment is  concerned, does not  exceed  2 months (Uy Chin Hua vs. Dinglasan, 47  Off. Gaz., Sup. 12, p. 233 and People vs. Santos, 87 Phil., 687).  The offense charged in the information comes, therefore, under the original jurisdiction of the municipal court  in view of  section 87 (b) of Republic Act No. 296 which provides that "All offenses  in which the penalty provided by law is imprisonment for not more than six months, or a fine of not more than two hundred  pesos,  or both  such  fine  and imprisonment", come under the original jurisdiction of  said court.

It is true that section  87, subsection (c) of  Republic Act 296  also  provides  that "larceny, embezzlement, and estafa where the amount of money or property stolen, embezzled or otherwise involved, does  not exceed the sum  or value of two  hundred  pesos",  likewise come under the original jurisdiction of the municipal court of a chartered city,  and in the instant case the  value of  the  property involved  is ?202, or a little more than the minimum fixed in said subsection; however, we should  nof lose sight  of  the fact that  the  offenses mentioned in said subsection refer to consummated acts and not to those that are merely attempted or frustrated in nature.  In fact, said subsection refer  to "amount  of money or property stolen, embezzled or  otherwise involved."   A different  interpretation would give  rise to the incongrous situation where while under subsection (c) the offense does not come within the jurisdiction  of the municipal court because the  value of the thing stolen is more than P200, it at the same time comes within its jurisdiction under  subsection (b) because the penalty involved is less than six months.   This cannot be  the intendment of the law.   Indeed,  an  offense which calls  for the application of a penalty of destierro in its maximum) period to 2  months  of  arresto mayor cannot come under the jurisdiction of the  court of  first instance [subsection  (f), section 44 of Republic Act 296].

The fact that the accused is  a recidivist is also of no moment. This circumstance  can  at most aggravate, the penalty within the range provided for by law.

Wherefore, the decision of the lower court is reversed, without prejudice  on the  part  of  the prosecution  to re-file the information with the proper court.  No pronouncement as to costs.

Paras, C.  J., Padilla, Montemayor,  Labrador,  Concepcion,  Reyes,  J.  B.  L.,  Endencia and  Felix,  JJ., concur.