G.R. No. 20886. September 21, 1923

STATEMENT

The defendant was charged in the municipal court of Manila with the crime of
qualified theft of two boxes of onions of the value of P17, and the information
further alleged that “the herein accused has heretofore been twice (2) convicted
of theft in the Municipal Court, by virtue of final judgments.” In that court he
was tried and found guilty, and sentenced to three years, six months and three
days of imprisonment and costs. From the judgment he appealed to the Court of
First Instance, and upon his arraignment, he plead not guilty. At the day of the
trial, and with the permission of the court, the defendant withdrew his former
plea and entered a plea of guilty. The court sentenced him to four years, two
months and one day of presidio correccional, and, under Act No. 3062 of
the Philippine Legislature, imposed a further and additional penalty of two
years and one month. From this judgment, the defendant appeals, contending, in
substance, that the court erred in imposing the penalty, and, in particular, the
additional penalty under Act No. 3062.

JOHNS, J.:

The only question involved is the sentence which should be imposed upon the
information.

In his brief, the Attorney-General says:

“The penalty fixed by law is presidio correccional to its full extent,
but there having been no aggravating or attenuating circumstance in the
commission of the crime, the penalty prescribed by law should be imposed in its
medium degree, to wit: 2 years, 4 months and 1 day to 4 years and 2 months of
presidio correccional. But taking into consideration the value of the
thing stolen, it is believed that the penalty above mentioned should be imposed
in its minimum degree, namely, 2 years, 4 months and 1 day of presidio
correccional.”

Upon that point we agree.

He further says that:

“In accordance with section 1 of Act No. 3062, said appellant should be
considered and declared a habitual delinquent, and an additional penalty of 1
year and 2 months which is equivalent to one-half of the penalty above mentioned
should be imposed upon him.”

Upon that point we do not agree.

The information does not make any allegation or contain any reference
whatever to Act No. 3062.

Clark’s Criminal Procedure, p. 204, says:

“The previous conviction enters into the second or third offense to the
extent of aggravating it, and increasing the punishment; and, where it is sought
to impose the greater penalty for a second or third offense, the previous
conviction or convictions, like every other material fact, must be distinctly
alleged in the indictment. ‘When the statute imposes a higher penalty upon a
second and a third conviction, respectively, it makes the prior conviction of a
similar offense a part of the description and character of the offense intended
to be punished; and therefore the fact of such prior conviction must be charged
as well as proved. It is essential to an indictment that the facts constituting
the offense intended to be punished should be averred.’ And in like manner, when
a statute, besides imposing a higher penalty upon a second or third conviction
than upon the first, provides that any person convicted of two or more offenses
upon the same indictment shall be subject to the same punishment as if he had
been successively convicted on two indictments, still the second and third
offenses must be alleged in the indictment to be second and third offenses in
order to warrant the increased punishment.”

In Ruling Case Law, vol. 14, p. 190, it is said:

“It is a general rule that in a criminal prosecution under a statute imposing
a greater punishment for a second or subsequent offense than for the first, the
fact that the offense charged is a second or subsequent violation must be
directly averred in the indictment or information, in order to justify a
conviction as for a second or subsequent offense.”

The rule is well stated in 129 Wis., 174,^[1] vol. 9, American and English Annotated Cases,
p. 767, where it is held:

“In a criminal prosecution under a statute imposing a more severe punishment
for a second offense than for the first, the defendant’s conviction for the
first offense must be alleged in the indictment and proved on the trial, in
order to warrant his conviction and punishment as for a second offense.

“In a criminal prosecution under a statute imposing a more severe punishment
for a second offense than for the first, where the indictment fails to allege
the defendant’s conviction for a prior offense, evidence showing his prior
conviction is inadmissible for any purpose, and error in admitting such evidence
when offered by the prosecution is not cured by the fact that the defendant, on
his subsequent cross-examination, testifies over objection to his prior
conviction.”

In the notes to this case, a number of decisions from other States are cited,
all of which are to the same effect.

In Larney vs. City of Cleveland (34 Ohio St., 599), it is held:

” ‘* * * By the rules of criminal pleading, the indictment must always
contain an averment of every fact essential to the punishment to be inflicted.’
“

The question here involved was also decided in the case of People vs.
Rosen, by the New York Court of Appeals, vol. 208, p. 169, where it is held:

“1. The statute (Penal Law, secs. 1020, 1021) provides that a person
convicted of a felony who has been, before such conviction, convicted in this
state of any other crime may be adjudged by the court, in addition to any other
punishment inflicted upon him, to be an habitual criminal and that such habitual
criminal shall be at all times subject to the supervision of every judicial
magistrate of the county, and of the supervisors and overseers of the poor of
the town where he may be found. These provisions, however, relate only to a case
where an accused person has been duly charged in the indictment with, and
subsequently convicted of, a second offense.

“2. Where a defendant indicted for burglary in the first degree, not charged
as a second offense, pleaded guilty to such charge, and it appeared upon his
examination prior to sentence, pursuant to the statute (Code Crim. Pro. section
485a), that he had before been convicted of a felony and sentenced to a
reformatory, it was error for the trial court, acting upon such information, to
adjudge that the defendant was an habitual criminal.”

The case of State vs. Findling (123 Minn., 413), is well considered
and in point. It holds:

“1. Section 4772, R. L. 1905, providing for increased punishment of persons
convicted of certain crimes where it appears that they had previously been
convicted of a felony, held valid, and not in violation of the twice in
jeopardy clause of the state Constitution.

“2. In the absence of some statute regulating the procedure, to authorize the
court to impose the increased punishment, the fact of the prior conviction must
be set forth in the indictment, established by proper evidence, and passed upon
by the jury.”

And on pages 416 and 417, it is said:

“And the courts applying this rule all hold that the prior offense must be
charged in the indictment and also established on the trial, and a verdict of
the jury rendered thereon * * *. All other courts where the question has been
presented hold that the prior conviction must be pleaded and proven on the
trial, and no distinction is made because of the fact that in some of the states
the punishment is fixed and determined by the jury, and in others by the court
upon a verdict of guilty.”

The constitutionality of the law is settled in the case of Graham vs.
West Virginia, by the Supreme Court of the United States (56 L. ed., 917),
where, on page 921 of the opinion, it is held:

“1. The propriety of inflicting severer punishment upon old offenders has
long been recognized in this country and in England. They are not punished the
second time for the earlier offense, but the repetition of criminal conduct
aggravates their guilt and justifies heavier penalties when they are again
convicted. Statutes providing for such increased punishment were enacted in
Virginia and New York as early as 1796 and in Massachusetts in 1804; and there
have been numerous acts of similar import in many states. This legislation has
uniformly been sustained in the state courts.”

Upon the question here involved, many decisions of our court have announced
the same rule. In the recent decision of United States vs. Tieng Pay (42
Phil., 212), it is held:

“3. ID.; ID.; MATERIAL FACT NOT ALLEGED IN THE COMPLAINT NOT PROVABLE.—In the
present case no allegation of recidivism was made in the complaint; yet the
lower court permitted proof of the same during the trial, against the objection
of the defendant. Held: It was error to admit such proof. Any evidence
presented which does not directly or indirectly tend to prove some of the facts
alleged in the complaint should be rejected by the court. Otherwise, and under
any other rule, a defendant might be charged with one crime and convicted of a
very different and dissimilar crime, which, of course, cannot be sanctioned
under a government of law.”

For want of an allegation in the information in the instant case to the
effect that the defendant was an habitual delinquent, under the terms and
provisions of Act No. 3062, all of the sentence under that Act is error, and
must be eliminated from the judgment.

Where it is sought to enforce the provisions of Act No. 3062, it is necessary
to make some allegation or reference to the Act in the information. But a formal
or technical plea is not required.

In the instant case, it is alleged:

“The herein accused has heretofore been twice (2) convicted of theft in the
Municipal Court by virtue of final judgments.”

In such a case, to invoke the penalty of the Act, it would be sufficient to
further allege “and that the defendant is an habitual delinquent under the terms
and provisions of Act No. 3062.” In other words, the pleader should first charge
the crime; second, that the defendant is a recidivist in the usual language;
and, third, that he is an habitual delinquent under the provisions of Act No.
3062.

Where the defendant has not lost his legal rights, this or, in substance, a
similar allegation should be made to enforce the penalty provided for in Act No.
3062.

For such reasons, the judgment of the lower court will be modified, and one
will be entered here, sentencing the defendant to two years, four months and one
day of presidio correccional, with costs against the appellant on this
appeal. So ordered.

Araullo, C.J., Johnson, Street, Malcolm, Avanceña,
Villamor, and Romualdez, JJ., concur.

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^[1] Paetz vs. State.