[ G. R. No. 45354. June 29, 1937 ] 64 Phil. 390
[ G. R. No. 45354. June 29, 1937 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. DEOGRACIAS CARIAGA, DEFENDANT AND APPELLANT. D E C I S I O N
CONCEPCION, J.:
This is an appeal taken by the accused from the judgment of the Court of First Instance of Manila, sentencing him for the crime of theft to one month and one day of arresto mayor, to indemnify the offended party in the sum of P1.20, with the corresponding subsidiary imprisonment In case of insolvency, and to the additional penalty of two years, four months and one day of prision correctional, the accused being a habitual delinquent,-with costs.
The appellant assigns the following alleged errors as committed by the trial court, to wit: (1) having found him guilty of the crime with which he had been charged; (2) having sentenced him to the above-stated penalty, and (3) not having dismissed the case.
The first assignment of alleged error is based upon the fact that the appealed judgment states: “Upon arraignment, he entered a plea of guilty.” The appellant, without denying the fact in itself, contends that the record does not show when, where or how he was arraigned. According to him, neither does it appear of record that he has waived the right to be arraigned. However, this court is of the opinion that the statement in the judgment that the accused had been arraigned and that he pleaded guilty is sufficient compliance with the provisions of sections 16 and 25 of General Orders, No. 58, inasmuch as it may be presumed from said statement that the law has been obeyed by causing the accused to appear before the court, and it is shown thereby that he has really been arraigned, his plea entered personally being that of guilty. All this is not a mere conclusion as the appellant gratuitously contends, because this court is of the opinion that generally a conclusion is the averment or denial of a fact deduced from some evidence, or the averment or denial of a point of law derived from a law or principle of law. In this case, however, the court’s averment in the judgment that the accused was arraigned and that he pleaded guilty, is not a deduction or consequence of an evidence, legal provision or principle of law, but a positive statement of facts.
What difference would it make if the court, after hearing the accused plead guilty upon arraignment, stated such facts in the judgment rendered immediately, in open court and in the presence of said accused, or caused said arraignment and plea of the accused to be stated in the minutes ? Absolutely none. What is important and essential is that the accused be arraigned and that he enter his plea. It is immaterial how or in what manner such facts are stated. For legal purposes, it makes no difference whether they appear in the minutes or in the judgment itself.
The other error assigned by the appellant refers to alleged lack of compliance with the provisions of section 15 of General Orders, No. 58, inasmuch as, according to him, the record fails to show that he was given the opportunity to appear and defend himself by counsel. The presumption, however, is that the law has been obeyed. Furthermore, the fact that the record fails to disclose affirmatively that the judge advised the accused of his right to have counsel does not constitute a reversible error (People vs. Lim Tiam, G. R. No. 44936, October 31,1936; People vs. Del Rosario, G. R. No. 44239, 62 Phil., 975).
Although the appellant has not raised any question relative to his habitual delinquency, which has been taken into consideration by the court in imposing upon him an additional penalty, this court is of the opinion, in justice to him that said circumstance should not be taken into consideration in this case on the ground that the allegations of the complaint that the accused had already been previously convicted twice of the same crime of theft, to wit: on October 6, 1933, one month and one day, and on November 3, 1933, one month and one day, are insufficient, in accordance with the doctrine laid down in the case of People vs. Venus ([1936], 63 Phil., 435), and in other subsequent cases decided by this court. However, as the aggravating circumstance of recidivism, compensated by the mitigating circumstance of plea of guilty, should be taken into consideration, end taking into account the fact that the value of the thing stolen was P1.20, modifying the appealed judgment, and pursuant to the provisions of article 309, subsection 6, of the Revised Penal Code, the accused is sentenced to the medium period of arresto mayor in its minimum and medium periods, that is, two months and one day of arresto mayor, to indemnify the offended party in the sum of P1.20, with the corresponding subsidiary imprisonment in case of insolvency, and to pay the costs. So ordered.
Avancena, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.
Judgment modified.