[ G.R. No. 48976. October 11, 1943 ] 74 Phil. 436
[ G.R. No. 48976. October 11, 1943 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MORO MACBUL, DEFENDANT-APPELLANT. D E C I S I O N
OZAETA, J.:
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.