These defendants were charged with the larceny of three carabaos, the property of Matias  Yusay.  Rufina de Leon was sick and unable to appear  at the trial.  The trial  of the cause proceeded against the defendant Dionisio Tapan alone.

After hearing the evidence, the lower court found the defendant (Dionisio Tapan) guilty of the crime charged  in the complaint and  sentenced him, under the provisions  of paragraph 2 of article 518, in  relation with  paragraph 1 of article 517 of the Penal Code, to be imprisoned for a period of four years of presidio  correccional, and to pay  to Matias Yusay the sum of P150, the value of the two carabaos not recovered, and in case of insolvency to suffer subsidiary imprisonment, and to pay the costs.

From that sentence the defendant appealed to this court.

From an examination of the evidence, the following facts appear:

That Matias Yusay was the owner of  three carabaos in the month of March, 1907, which  were then in the possession of his tenant, Eugenio Puentespino; that in the  night time during the said month of March these carabaos were stolen; that the carabaos were kept in an enclosure under the house occupied by the tenant; that the gate to the enclosure was locked by some form of a lock on the inside of the gate and that when the gate was once locked, the customary way to enter the said enclosure was by means of a ladder or stairway going up into the house from the said enclosure; that on the morning after the carabaos were stolen it was found that the gate  to the enclosure had been broken open.

About two  years and a half (November 22,  1909)  after the carabaos  had been stolen, as above described, one  of them, which was fully identified by Matias Yusay, was found in  the  possession of the defendant, Dionisio Tapan.  He gave no satisfactory explanation of his  possession of said carabao; he produced no witnesses to show how he came into the possession of the carabao.  Men who  come  into the lawful possession of property seldom  ever have any difficulty in explaining the source of their possession.  In the absence of a satisfactory  explanation and under the presumption  of law> the lower court found the defendant guilty of the crime charged,  (U. S. vs.Soriano,  9 Phil. Rep., 441.)

The crime was committed at night and in an  inhabited house.   It  is  believed  that the enclosure under the house in the form in which it was maintained in the present case should be considered as a part of the house, in accordance with the provisions of  article 510 of the Penal Code.  Said article 510 provides that - 

"Any lodging  that shall constitute the dwelling  place of one or more persons  shall be considered an inhabited house, even though they should accidentally be absent therefrom when the robbery took  place,"

"As  the  dependencies of an inhabited house or public building or one dedicated to religious worship, shall be considered  its courts, corrals, shops, granaries, mews, stables, stalls, and other  divisions or enclosures  contiguous to the building, having interior connection  therewith, so that the same constitute one entire place."  (Viada, 3d Supplement, 377, decision of the supreme court of Spain of January 4, 1898.)

The  circumstance of nocturnity and  the fact that the theft was committed in an inhabited house should be considered as aggravating circumstances.  There were no extenuating circumstances.  The defendant should therefore be punished in the maximum degree of the penalty provided by law.  The  penalty of the lower court was imposed in the  maximum degree;  the lower  court failed, however, to  impose the accessory penalty  provided for  in  article 58 of the Penal Code.  The judgment of the lower court is therefore hereby affirmed, with the addition that the defendant  be  sentenced to suffer the  accessory penalty  of said article 58, with costs.  So ordered.

Torres, Mapa, and Carson, JJ., concur.

Moreland, J., dissents.