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[ GR No. 48976, Oct 11, 1943 ]



74 Phil. 436

[ G.R. No. 48976, October 11, 1943 ]




Appellant pleaded guilty to an  information  for theft of two sacks of papers valued at P10 belonging to the Provincial Government of  Sulu, alleged to have been committed on March  9, 1943, in the municipality of Jolo; it being also alleged that he was a habitual delinquent, having been twice convicted of the same crime on November  14, 1928, and August 20,  1942.  The trial  court sentenced him  to suffer one month and  one day of arresto mayor as principal penalty and two years, four months,  and one day of prision correccional as additional penalty for habitual  delinquency.

The trial court found two mitigating circumstances: plea of guilty under paragraph 7, and extreme  poverty and necessity under paragraph 10,  of  article 13 of  the  Revised Penal Code; but it took into account the aggravating circumstance of recidivism in imposing the principal as well as the additional penalty.

The only question raised here by counsel for the appellant is the correctness of the consideration by the trial court of recidivism as an aggravating circumstance for the purpose of imposing the additional penalty for habitual delinquency, counsel contending that  recidivism should not have  been taken into account because it is inherent in habitual delinquency.  While that contention is correct, as we have decided in the case of People vs. Tolentino, 1 Off. Gaz., 682, it is beside the point here because the error committed by the trial court lies not so much in its having considered recidivism  as  an aggravating  circumstance  for the  purpose of penalizing habitual delinquency, as in its having considered appellant as a habitual delinquent at all, it appearing from the information that his two previous convictions were more than  ten  years apart.  "A person  shall be deemed to be habitually delinquent,  if within a period of ten years from the date of his release or last conviction of the crimes of robo, hurto, estafa, or falsification, he is found guilty of any of said crimes a third time or oftener."  (See last  paragraph, article 62, No.  5, of the Revised Penal Code.)  Therefore, appellant's first conviction, which took  place in  November, 1928, cannot be taken  into account because his second conviction took place  in August, 1942, or fourteen years later. Hence, within the purview of the Habitual Delinquency Law appellant has  only one previous conviction  against  him, namely, that of 1942.

The trial court considered extreme poverty and necessity as a mitigating circumstance falling within No. 10 of article 13 of the Revised Penal Code, which authorizes the court to consider in favor of an accused "any other circumstance of a similar .nature and analogous to those above mentioned." The trial court predicates such consideration upon its finding that the accused, on account of extreme poverty  and of the economic difficulties brought about by the present cataclysm, was forced to pilfer the two sacks of  papers mentioned in the information from the Customhouse Building, which he sold for P2.50, in order to be able to buy something to eat for various minor children  of his.  (The stolen goods' were subsequently recovered.)  The Solicitor General interposes no objection to the consideration of such circumstance as  mitigating under No. 10 of article 13. We give it our stamp of approval, recognizing the immanent principle that the right to life is more sacred than a mere property right.  That  is not to encourage or even countenance theft but merely to dull somewhat the keen and pain-producing edges of the stark realities of life.

Conformably to  the recommendation of the Solicitor General, the sentence appealed from is modified by affirming the principal  penalty  and eliminating the  additional  penalty, without costs.

Yulo, C. J., Moran, and Paras, JJ., concur.



I concur in the result.  In view of the far-reaching significance of the doctrine enunciated in the foregoing opinion that extreme poverty is a mitigating circumstance and of the fact that such a rule deviates from established precedents, I deem it appropriate  to set forth my reasons  for subscribing to the  new principle.

I believe that extreme poverty and necessity is a mitigating circumstance,  not only because it is an analogous mitigating circumstance under No. 10 of art. 13 of the Revised Penal Code, as stated in the above opinion, but also for  the reason that it is an incomplete exempting circumstance contemplated in  No. 1 of said article 13, in relation to Nos. 5 (irresistible force)  and 6  (uncontrollable fear)  of art. 12.  The trial court found that the accused committed  the crime  of  theft  "por extrema pobreza y necesidad," and considered this  as an analogous mitigating circumstance within the meaning of No. 10, art. 13 of the Revised Penal Code.  Such a finding is based on the fact that on  March 9, 1943, the accused took the two sacks of papers and sold the same for P2.50 because he is the father of several minor children and they and he had nothing to eat on that day.

The Supreme Tribunal of Spain has refused to recognize extreme poverty as a mitigating circumstance by analogy in cases of robbery and theft.  (See sentences of April  20, 1871; July 12, 1904; April 18, 1907; and July 9, 1907).

As for Philippine jurisprudence, as far as  I know, this question has never been squarely passed upon by this court. Possibly one of the reasons is that in view of the well-established doctrine of the  Spanish Supreme Court, above referred to, it seems to have been taken for  granted by the legal profession here that extreme poverty  and need is not a mitigating  circumstance by  analogy in cases of robbery and theft.

In spite of precedents and a widespread belief to the contrary, I do not hesitate to hold the proposition that extreme poverty and need is a mitigating circumstance analogous to two of the circumstances enumerated in art. 13.  These two are:
  1. "That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation."  (No. 6)

  2. "Such illness of the offender as would diminish the exercise  of will-power without however depriving him of consciousness of his acts."  (No. 9)
It will be noted that there is a common  idea underlying these two mitigating circumstances, namely, that the offender either by  a powerful impulse or through illness had no effective control over himself at the time he committed the crime. Was this the state of mind of the defendant herein when he took the papers?  I believe so because the thought that his little children would starve on that day must have temporarily dulled his conscience and driven  him to steal. The spectre of hunger of his  loved ones terrified him into stealing.  The reason for Nos. 6 and 9 of art. 13, above quoted, being the same as in the instant case, the rule of analogy authorized in  No. 10 of that article should be applied.  The ancient principle upheld by the Roman jurists, Eadem dispositio, ubi eadem ratio is of puissant logic and is eminently just.

Furthermore, the  facts of this case come within the purview of No. 1 of art. 13, which provides:
"Art. 13. Mitigating circumstances. The following are mitigating circumstances:

"1. Those  mentioned in the preceding chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant."
In other words, the offense of the accused herein may be properly considered as mitigated by incomplete exemption from criminal liability, under Nos. 5 and 6 of art. 12, (irresistible force and uncontrollable fear of an equal or greater injury.)

The first question in this aspect of the case is whether No. 1  of art.  13 refers only to those' exempting  circumstances which contain two or more requisites  (self-defense, defense of relatives  or  of a stranger,  and avoidance of an evil or injury in Nos. 1  to 4, art. 11.)  The answer is negative because No. 1  of art. 13 refers to the preceding chapter relative  to justifying  and  exempting circumstances,  and the preceding chapter, which consists of arts. 11  and 12, includes circumstances which are not composed of several requisites. In People vs. Oanis, G. R.  No. 47722, (July 27, 1943) we held that improper performance of a duty (No. 5, art. 11) is a mitigating circumstance.

Coming now to irresistible force, No. 5 of art. 12 provides that "any person who  acts under the  compulsion of an irresistible force" is  exempt from criminal liability.  It is true that according to the doctrine of the Supreme Tribunal of Spain, the  irresistible force must be external, proceeding from a third person (S. of Feb. 28, 1891).  But considering that the law  makes no distinction between force within the accused himself  and  from another person, and  that one type of force  is just as compelling as another, I think it is but right to hold  that  such force need not be exerted by another person.

This being so, why should the offense of the accused herein be mitigated by extreme poverty and need ? Because misery and hunger  impelled him to steal, although such force was not absolutely irresistible,  under No. 5 of art. 12.  His condition was sufficiently grave to drive him to take the papers, but it was not utterly inevitable that he should do so.

The same considerations apply in regard to uncontrollable fear of an equal or greater injury (No. 6, art.  12).  The accused, desperate  because of fear that his little  children would starve, stole the papers,  but his fear was not absolutely uncontrollable.

Taking irresistible force and uncontrollable fear together, I believe that the force and the fear which coerced the accused herein to steal are of the  same nature contemplated in Nos. 5 and 6 of art. 12, but they are of less degree than that required for complete exemption from criminal responsibility.  Therefore, I am of the opinion that according to No.  1 of art. 13, there is a  mitigating circumstance of incomplete exemption from criminal liability under Nos.  5 and  6 of art. 12 of the Revised Penal Code.

I am not unmindful of  the possible objection that the doctrine herein enunciated  may encourage theft and  robbery and undermines the  right of property, and is therefore revolutionary.  But so long as extreme poverty and need is not declared an exempting  but  only a mitigating circumstance, the rule herein announced is fully warranted.  The crime itself is condemned,  though the punishment is tempered.  It can not  be successfully contended that a mitigating circumstance fosters crime.   It  is easy to understand the conservatism of the  precedents and of the attitude of the legal profession, but considerable water has flowed under the bridge during the last two decades.  Governments and peoples all over the world have visualized more clearly the sufferings and hardships of the poor.  Humanitarian ideas have loomed larger on the horizon.  More and more, legislation in all countries  has  been removing from the bending backs of the underpriviledged the unbearable burdens which had been crushing and overwhelming their existence. More and  more, lawmaking bodies throughout the world have seen to it that the toiling  masses participate, as  much as possible, in the good things of life.  More and more, legislatures have realized that extreme poverty is brought about by general  social  conditions and through no fault of the poor.  More and more, legislation has remedied the sinister state of affairs which seemed to consider poverty  a crime.

Therefore, the original interpretation of laws must  give way to a new one, which should be attuned to the spirit of the age all over the  earth.  Although the wording of the articles of the Penal Code under discussion has not been changed, their interpretation may be changed in order that they may not become anachronistic.  Considering that social conditions often unfold faster than legislation, it is a salutary function of the courts  so to formulate their interpretation of old laws as to  adjust them to contemporary exigencies of the public  weal.  This is not judicial legislation at all because the lawmakers intended that the law which they approved should govern for many years to come, and that therefore  it  should be interpreted by the  courts  in such a way as to meet new problems,  provided the fundamental objectives of  the law are distinctly kept in  view. In the instant case, theft is punished, so the principle  of crime repression is carried  out; and the penalty is moderated because of extreme poverty and need, so the idea  of punishment according to the circumstances of  each case is also recognized.

Finally, so long as there is widespread unemployment and so long as relief work, both private and governmental, is inadequate, the punishment for stealing because  of hunger should be lessened, but  not waived or  lifted.  Unless and until there is a job for every person willing to work, to mete out the ordinary or highest  penalty for stealing due to dire necessity  flies in the  face of the principle  of social justice. It is tantamount to exacting the pound of flesh in accordance with the .letter of the law.

The foregoing considerations are strengthened by  the leeway given to the courts in determining what in each case constitutes a mitigating circumstance by analogy.  The lawmaker, fully aware of the impossibility of laying down  an exhaustive enumeration of circumstances that would extenuate a crime, has formulated a general statement in No. 10 of art. 13.  It is thus that each case must be judged by the courts on its own merits, the only condition being that there must be  similarity or analogy to one or more of the nine circumstances specifically mentioned in said art. 13.  Commenting on a similar provision of the Spanish Penal Code (No. 8, art.  9), Groizard makes these observations:
"Recuerdense una por una las siete circunstancias atenuantes  que ya Uevamos  examinadas,  y se advertira  la exactitud de  lo que venimos diciendo.  Todas y  cada una son generalizaciones y en todas se hallara que la libertad, o la inteligeneia, o la intencion aparecen mutiladas en bastante grado  para influir en la responsabilidad de  los  actos humanos.  Descender a demostrar esta verdad, lo tenemos por inutil:   su evidencia no han de ponerla en duda los que recuerden el texto de los numeros y el espiritu que las vivifica.

"Pero ese estudio amplio, vastisimo; estudio en  el cual parece que se pierde el hombre dentro de la humanidad; esas grandes corrientes, puntos cardinales, moldes en que todos se funden, aunque el Iegislador crea que lo abarcan todo, podria suceder que se equivocase, y logico en su aspiracion de ser un reflejo de la justicia moral, al trazar el  circulo  en que queda a salvo el principio de que parte, en prevision de que algun caso quedase sin definir y f uera de las clasificaciones hechas, que ni por su generalidad, ni por su alcance, pudiera  engendrar una regla de aplicacion constante, un canon, fue preciso establecer el unico criterio que pudiera apreciarle con entera conciencia: aludimos al criterio de los Tribunales.

"De aqui la circunstancia 8.a, que, en rigor,  no es mas que una regla generica para todo lo que hallandose f uera del cuadro de las anteriormente f ormuladas pudiera correr igual suerte que estas,  cuando lo exigieran igual identidad y analogia, El  Codigo Penal de 1870, Concordado y Comentado, Vol. 1, p. 401." (Italics supplied).
Although perhaps many decades will have to  elapse before the penal codes of the world recognize extreme poverty and need as an exempting circumstance, yet  I believe that in the meantime it is in keeping with the humanitarian ideas of this generation to recognize the cruel pangs of hunger as a factor that mitigates the penalty.  Possibly  the growing atmosphere favorable to the submerged classes will eventually uphold the stand  of Judge  Paul Magnaud who about fifty years ago became popularly known in  France as the "bon juge"  because of his significant  decisions  acquitting those who  had been impelled to steal on account of the excruciating  tortures of hunger.   Be  that as it may, I am convinced that the  doctrine herein declared  responds to the heart-throbs of mankind.

All in all, I am persuaded that the principal penalty fixed by the trial court, one month  and one day of arresto mayor, extreme poverty and need having been considered as a mitigating circumstance by analogy, fits the facts of the the instant case.