[ G.R. No. 48740. August 05, 1942 ] 73 Phil. 643
[ G.R. No. 48740. August 05, 1942 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FAUSTINO TOLENTINO Y DE DIOS AND LUISA CORPUZ Y QUITONG, DEFENDANTS. FAUSTINO TOLENTINO V DE DIOS, APPELLANT. D E C I S I O N
OZAETA, J.:
In the municipal court of Manila, where this action was commenced, as well as in the Court of First Instance, to which it was appealed, both of the above-named defendants pleaded guilty to the charge of theft of seven shirts valued at P14 belonging to one Cosme Famorca. Both, being recidivists, were sentenced in the Court of First Instance to suffer two months and one day of arresto mayor and to pay the corresponding civil indemnity to the offended party. Faustino Tolentino y de Dios was further sentenced to suffer an additional penalty of six years and one day of prision mayor for habitual delinquency. He alone appealed to this Court. The only question raised by the appellant is the correctness of the additional penalty. The pertinent allegation of the information is that the accused Faustino Tolentino y dc Dios is a habitual delinquent, he having been convicted of the crimes of theft and estafa by final judgments rendered by competent courts, as follows:
Date of commission
Date of sentence
Crime
Sentence
Date of release
10-29-26 8-1-27 9-14-35
10-13-25 10-30-26 8-1-27 9-30-35
Qualified theft, MCDE-16887 Theft, NCDE-42165 Qualified, theft. NCDE-57895 Estafa, CFID-50973
6 months and P3 indemnity 3 months and 1 day 6 months 1 day and P15 indemnity 2 months 2 day arresto mayor, to return the bicycle stolen or its value P40, and additional penalty of 2 years 4 months 21 days of prision correccional and costs.
3-18326 1-20-27 8-10-27
The trial court sentenced the appellant under paragraph 5 (b) of article 62 of the Revised Penal Code, as if this were only his fourth and not his fifth conviction. The Solicitor General recommends the affirmance of that sentence, on the theory that appellant’s fourth previous conviction alleged in the information should be disregarded because the date of his release in connection therewith was not shown. On the other hand counsel for the appellant, on the basis of the trial court’s implied finding that this is appellant’s fourth conviction, contends that appellant should be sentenced under paragraph 5 (a) of article 62, as if the present were only his third conviction, on the ground that the first conviction should be taken as an aggravating circumstance and should be disregarded as an element of habitual delinquency. We cannot uphold appellant’s contention. Under his theory an accused cannot be sentenced for habitual delinquency unless he has had at least three previous convictions, because the first conviction has to be taken only as an aggravating circumstance and has to be disregarded for the purpose of determining habitual delinquency. That, we think, would be an unwarranted interpretation of the Habitual Delinquency Law (paragraph 5 of article 62 of the Revised Penal Code), which reads as follows:
- Habitual delinquency shall have the following effects: “(a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods; “(b) Upon a fourth conviction the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and “(c) Upon fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. “Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed 30 years. “For the purposes of this article, a person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his release or last conviction of the crimes of robo, hurto, ettafa, or falsificacion, he is found guilty of any of said crimC3 a third time or oftener.”
A habitual delinquent is necessarily a recidivist, and in imposing the principal penalty upon him the aggravating circumstance of recidivism ha.i to lie taken into account. In fixing “the penalty provided by law for the last crime” as required in paragraph 5 (a), (b), and (c) of article 62 of the Revised Penal Code, the court cannot disregard articles 14 (9) and 64 of the Revised Penal Code, which respectively define recidivism as an aggravating circumstance and lay down the rule for the application of aggravating and mitigating circumstances. We reaffirm the holding of this Court in People vs. Melondrez, 59 Phil., 154; People vs. Espina, 62 Phil., 607; and People vs. De Jesus, 63 Phil., 760, as a correct interpretation of the Habitual Delinquency Law. However, for the purpose of fixing the additional penalty, recidivism cannot be taken as an aggravating circumstance for the reason that it is inherent in habitual delinquency (People vs. De Jesus, supra). Neither can we accept the recommendation for affirmance made by the Solicitor General on the theory that the present is appellant’s fourth conviction. We cannot disregard his previous fourth conviction alleged in the information solely because the date of his release in connection therewith has not been shown. It appearing that he was sentenced for the fourth time on September 30,1935, to suffer two months and one day of arresta mayor plus an additional penalty of two years, four months, and twenty-one days of prision correccional, we can readily see that he must have been released in connection therewith less than ten years previous to August 13, 1941, the date of the commission of the offense complained of in the present case. The stand taken by the trial court and the Solicitor General is untenable because if appellant’s fourth previous conviction be disregarded, he could not be sentenced to any additional penalty as a habitual delinquent, his previous third conviction and release having: taken place more than ten years prior to August 13, 1941. It results that this is appellant’s fifth conviction and, accordingly, he must be sentenced under paragraph 5 (c) of article 62 to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. This penalty must be imposed in its minimum degree because of the mitigating circumstance of plea of guilty. Wherefore, with the modification that the appellant Faustino Tolentino y de Dios shall suffer an additional penalty of ten years and one day of prision mayor, the sentence appealed from is affirmed, with costs. So ordered. Yulo, C. J., Paras and Moran, JJ., concur.