JOAQUIN S. TORRES, PETITIONER AND APPELLANT, VS. THE SUPERINTENDENT OF SAN RAMON PRISON AND PENAL FARM, RESPONDENT AND APPELLEE.

This
is an appeal from the final decision of the Court of First Instance of
Zamboanga, denying the petition of the appellant for a writ of habeas
corpus.

The appellant, Joaquin S. Torres, was convicted on
September 23, 1931, by the Court of First Instance of Davao, of the
crimes of estafa on twenty separate informations to all of
which he plead guilty, the aggregate of the penalties in the twenty
cases being eight years and twenty days, if subsidiary imprisonment be
included.

On July 5, 1933, the appellant filed a petition
for a writ of habeas corpus in the Court of First Instance of
Zamboanga, invoking the provisions of article 88, paragraph 2, of the
former Penal Code, and contending that the court that sentenced him
exceeded its jurisdiction in the penalty assessed.

Article 88, paragraph 2, reads as follows:

“Notwithstanding
the provisions of the rule next preceding, the maximum duration of the
convict’s sentence shall not be more than threefold the length of time
corresponding to the most severe of the penalties imposed upon him. No
other penalty to which he may be liable shall be inflicted after the
sum total of those imposed equals the said maximum period.”

Whatever confusion may have existed in the interpretation and application of article 88, paragraph 2, supra, before the decision of this court in the case of People vs.
Garalde (50 Phil., 823), that case, after a full review of the previous
decisions, decided once and for all that article 88, paragraph 2,
applies although the penalties were imposed for different crimes, at
different times, and under separate informations. It is unnecessary to
repeat here the argumentation of that decision which wag adopted by
unanimous vote of this court.

The doctrine laid down in that
case has been uniformly followed in this court. To enumerate only a
few, attention is called to the following recent decisions: Gregorio
Bogayong vs. Director of Prisons (G. R. No. 37106, Resolution of March 26, 1932); Liberato Maballo vs. Director of Prisons (G. R. No. 38067, Resolution of September 9, 1932); Mauro G. Rompal vs. Director of Prisons (G. R. No. 37543, Order of June 4, 1932); Estanislao M. Masin vs.
Director of Prisons (G. R. No. 38876, Resolution of January 19, 1933),
In all of said cases, under circumstances, analogous to the facts set
out in the petition under review, the writ of habeas corpus was granted
on the ground that the trial court had no jurisdiction to assess a
penalty in excess of that provided in article 88, paragraph 2,
aforesaid.

The judgment of the court below is reversed with costs de oficio, and the lower court is directed to grant a writ of habeas corpus as prayed for in the petition.

Avanceña, C. J., Street, Malcolm, Villa-Real, Abad Santos, Hull, Imperial, and Diaz, JJ., concur.

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DISSENTING

VICKERS, J.:

I
dissent, not only because the ruling of the majority produces the
absurd result of reducing the penalty of the petitioner to two years
and three days for the misappropriation of P29,592, or less than
one-half of what he would have received if he had been prosecuted on a
single complaint for the total amount misappropriated, but also because
I cannot agree with the decision of this court in the Garalde case
relied on in the majority opinion.

In the case of the
petitioner the fiscal had no right to split up the offense and to
prosecute him on twenty different charges instead of prosecuting him
once for the total amount of his misappropriation during the period in
question.

The decision in the Garalde case overrules the decision of this court in Celis vs.
Warden of Bilibid (18 Phil., 373), where the application of the
provision of law now in question was considered and decided in an
opinion written by Chief Justice Arellano, and is contrary to the later
decisions of the Supreme Court of Spain. The Garalde decision rests
upon the fallacy that paragraph 2 of article 88 of the Penal Code must
be given effect at any cost, whereas in my view of the matter that
provision of law was rendered inoperative by the new Code of Criminal
Procedure (General Orders, No. 58).

The majority opinion
mentions certain recent decisions of this court where the rule laid
down in the Garalde case was followed, among them Liberate) Maballo vs. Director of Prisons (G. R. No. 38067) and Mauro G. Rompal vs. Director of Prisons (G. R. No. 37543).

In the Maballo case it appeared that the petitioner had been convicted
by the municipal court of Manila in 1915 of a violation of Act No. 2159
in one case and of a violation of an ordinance in another case, and of
theft by the same court in 1916 in seven cases; and by the Court of
First Instance of Manila in five cases of theft in 1919 and in four
cases of theft in 1920; that is, the petitioner had been convicted of
different crimes in different courts in different years, and yet this
court held that the trial judges were without jurisdiction to impose
the penalties corresponding to the respective crimes committed by the
petitioner, in excess of three times the penalty corresponding to the
graver crime, notwithstanding the fact that it does not appear that
this point was raised in any of the trials of the petitioner.

Mauro G. Rompal was convicted of estafa
in twenty-three cases by the Court of First Instance of Leyte, eight
times on September 5, 1928 and fifteen times on September 6, 1928. The
total amount misappropriated by him was P2,580, and the total of his
prison sentences, not including subsidiary imprisonment, was four years
and twenty-three days. This court in habeas corpus proceedings reduced
the penalty to two years and four months, and released him from custody.

Finally, it may be observed that the provision of the Penal Code in question has been omitted from the Revised Penal Code.