Add TAGS to your cases to easily locate them or to build your SYLLABUS.
Please SIGN IN to use this feature.
Highlight text as FACTS, ISSUES, RULING, PRINCIPLES to generate case DIGESTS and REVIEWERS.
Please LOGIN use this feature.
Show printable version with highlights

[ GR No. 45198, Oct 31, 1936 ]



63 Phil. 760

[ G. R. No. 45198, October 31, 1936 ]




Basilio de Jesus y Javier was  convicted by the  Court of First Instance of Manila in criminal case No. 52270 of said court, of the theft of an  umbrella and a buri hat valued at P2.65 committed, according to the information,  on April 28, 1936.  He was therein sentenced to one month and one day of arresto mayor with the accessory penalties, to indemnify Francisco Liwanag in the sum of P2.50 representing  the  value of  the  umbrella which was not  recovered, and being a habitual delinquent, the additional  penalty  of two years, four months and one day of prision correctional with the corresponding accessory penalties was also imposed upon him in conformity with the provisions of subsection 5, paragraph  (a), of article  62 of the  Revised  Penal Code. Not agreeing with said penalties he appealed from the sentence undoubtedly for the review of his case.

The appellant's counsel de oficio in this instance, considering the appealed sentence  in accordance with law, recommends the affirmance thereof in all respects  in his short brief.

Due to the amount involved, the theft imputed to the appellant is punishable with arresto mayor in  its minimum and medium periods the duration of which  is from one month and  one  day to four months  (art. 309, subsection 6, Revised Penal Code); and the minimum period of said penalty is from one month and one day  to two months.  It appears therefrom that the penalty questioned by the appellant is the minimum of the minimum period, as  no other less penalty could have been imposed upon him because said penalty in  itself already constitutes the  minimum  limit under the  law.  The reasons which  prompted the lower court to be lenient with the  appellant were undoubtedly his voluntary confession before the prosecution presented  its evidence, which constitutes a mitigating circumstance (art. 13, subsection 7, Revised Penal Code),  and the apparent absence of all allegation in the information of some aggravating circumstance that may compensate said mitigating circumstance (art. 63, rule 1,  Revised  Penal  Code).

The imposition  of the additional penalty of two years, four months and one day upon the appellant is justified by his own admission of guilt  because the  rule is well settled in this jurisdiction that when one pleads guilty of the crime imputed to him in an information, it is  understood that he admits all the material facts  alleged therein (U. S.  vs. Barba, 29 Phil., 206; U. S.  vs.  Santiago, 35 Phil.,  20), not excluding those alleging his former  convictions  of other crimes (U. S. vs. Burlado, 42 Phil., 72) ; and  in the information filed against the appellant, it was alleged:
"That the said  accused is a habitual delinquent within the purview of rule 5 of article 62 of the Revised Pena Code,.he having been convicted by final  judgments of com petent courts of the following crimes: On January 4,1933, he was convicted of theft and sentenced to one month and one day  of imprisonment, and on November 13, 1935, he was convicted of qualified theft and sentenced to serve two months and one day of imprisonment, the date of his last release being  January 10, 1936."
The Solicitor-General, taking advantage of the allegation in the information that the  appellant is a habitual delinquent, recommends that instead of affirming his principal penalty of one month and one day of arresto mayor,  it be increased to the minimum of the medium period of that prescribed by law for his crime, or two months and one day of arresto mayor, considering the aggravating circumstance of recidivism established but compensated by the mitigating circumstance of voluntary confession.  His argument appears to be as follows:  Habitual delinquency necessarily implies recidivism or former  conviction, at least more than once.  The appellant having admitted in his confession that he is  a habitual delinquent for having committed theft for the third time  within the period prescribed by law, he must  necessarily be considered a recidivist.  This naturally raises the question whether or not in this case the circumstance of recidivism can be and must be twice taken into consideration against the appellant, first as an aggravating circumstance although compensated by another mitigating circumstance,  and second as  a qualifying circumstance or one inherent, as the case may be, in habitual delinquency. If such an opinion were sustained,  would not an injustice be committed against the appellant by imposing two penalties upon him, the principal and the additional, in a period which must be determined by taking into consideration one and the  same fact or  circumstance, which  is recidivism? There is no express provision, of law prohibiting it.  On the contrary, as to the principal penalty, there is the rale that in cases in which the penalty prescribed by law contains  three periods, the courts must take into consideration, in the application of said penalty, the aggravating or mitigating circumstances established at the trial if they do not appear to be compensated by  other circumstances;  and there is also the rule that when only an aggravating circumtance is present the former, that  is the principal penalty, must be imposed in its maximum  period (art 64,  Revised Penal Code) ; and in  People vs.  Aguinaldo (47 Phil., 728), this court has  stated,  and it is  reiterated in People vs. Melendrez (59  Phil., 154)., that the aggravating  circumstance of recidivism, even in cases of habitual delinquency, should be taken  into consideration  in the application of the principal penalty in the corresponding period.

As to the  additional  penalty,  if we must rely upon the spirit and letter of the law, we would say that the purpose of the latter in establishing it  was to prevent those  who for the second time or more commit the crimes enumerated in the last paragraph of article 62 of the Revised Penal Code from relapsing  thereafter, at least during the period fixed thereby, as if to tell them: "If you relapse, the penalty corresponding to your last offense will be imposed upon you plus another additional penalty  ranging from prision  correctional in its  medium and maximum periods to prision mayor in its maximum period and  reclusion temporal in its minimum period, according to your recidivism, that is, the third, fourth, fifth or more times."

When  the law has  prescribed  the additional penalty for habitual, delinquency  in a manner susceptible of division into periods  and has enumerated it  among the penalties that may be  imposed by incorporating it into the Revised Penal Code, it was for no other  purpose than that all the circumstances present in  every  case be taken into consideration in order to avoid arbitrariness in the determination of the period in which said penalty should be imposed. It would be arbitrary, in the absence  of any circumstance, to impose the maximum of the  additional penalty  upon a habitual  delinquent, as it would also be arbitrary to impose the minimum thereof upon him when there  are circumstances justifying its application in the maximum period.

We should not lose sight of the fact that when the Legislature incorporated the provision relative to habitual  delinquency into the Revised Penal Code, it was aware this, at least, is the presumption  of law that recidivism was, as it continues to be in the majority of  cases to this date, an  aggravating circumstance the effect of which, as  the name itself implies, is to aggravate the  criminal responsibility of the delinquent.  But  unlike other circumstances, as treachery, evident  premeditation, sex, craft,  relationship,  public  position, dwelling,  not to mention several others so as  not to be tedious, which may be aggravating, qualifying and inherent as the case may be, recidivism is and can be nothing else but  an aggravating circumstance This is the general rule; but as such it certainly is not without its exception as other general rules.   The exception is found in the case of habitual delinquency,  as recidivism is precisely one of those that constitute and give it existence, the other being former conviction, but it is not necessary that both be  present at the same time.

Treachery, evident premeditation  and relationship  are aggravating  circumstances in crimes against persons and when one of them is  present, for instance, in a case of homicide, the crime committed ceases to be homicide and becomes murder or parricide, as the case may be.   In such cases, that of the said three circumstances which has raised the crime committed from the category of homicide to that of murder or parricide, ceases to be an aggravating circumstance to become a  qualifying circumstance and, once  accepted as such, it cannot, by virtue of the legal maxim non bis in idem be  considered as an aggravating circumstance at the same time  (U. S. vs. Estopia, 28 Phil., 97; U. S. vs. Vitug, 17 Phil., 1; Decision of the Supreme Court of Spain  of November 13, 1871).  So must recidivism be considered in habitual delinquency.   We  have taken it into consideration in imposing the principal penalty and we cannot again take it into consideration in imposing the additional penalty because inasmuch as recidivism is a qualifying or inherent circumstance in habitual delinquency, it cannot be considered an aggravating circumstance at the same time. Consequently, the additional penalty to be imposed upon the appellant must  be the minimum  of that prescribed by law as, with the exception of recidivism, no other circumstance or fact justifying the imposition of said penalty in a higher period has been present.

The proposition based on rules 1 and 2 of article 62 of the Revised Penal Code, that if recidivism is considered an inherent or qualifying circumstance of habitual delinquency it should not be taken into account in the imposition of the principal penalty, seems to us untenable because it is based upon the erroneous assumption that habitual delinquency is a crime.  It is simply a  fact or circumstance which, if present in a given  case with the other circumstances enumerated in rule 5 of said article, gives rise to the imposition of the additional penalties therein prescribed.  This is all the more true because the law itself clearly provides that the habitual delinquent  must  be  sentenced  to the  penalty provided by law for his  last crime in addition to the additional penalty he deserves.

In view  of  the foregoing facts and considerations and furthermore taking into account the provisions of article 62, rule 5,  paragraph  (a), of the Revised Penal Code, we deem it clear that the  appellant deserves  the additional penalty imposed by the lower court upon him.  The penalty prescribed by said rule is prision correctional in its medium and maximum periods, or from two years, four months and one day to six years.  What was imposed upon the appellant is the minimum of said penalty and he has absolutely no reason to complain because after all he can not be exempt from the additional penalty by reason of his admission  at the trial that he is a habitual delinquent, having committed the crime of theft for the third time before the expiration of ten years from the commission  of his former crime.

In  resume we held that  the principal  penalty of the appellant must be two months and one day of arresto mayor. We therefore modify the appealed sentence in this sense and so modified it is affirmed in all other respects, with the costs to the appellant.  So ordered.

Avanceña, C. J.,  Villa-Real, Imperial, and Laurel, JJ., concur.



We dissent from the opinion of the court in so far as it holds that, in the imposition of the penalty prescribed by law for the  crime of which  the appellant has been found guilty,  the aggravating circumstance  of recidivism should be taken into consideration.   Our views on this question, and the reasons in support thereof, have already been set forth in the opinion subscribed by us in People  vs. Bernal (G. R. No. 44988, October  31, 1936, pp. 750, 755, ante).