G.R. No. 39913. December 19, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. RICARDO MELENDREZ Y NIETO ET AL., DEFENDANTS. RICARDO MELENDREZ Y NIETO, APPELLANT.
AVANCEÑA, C.J.:
“That
on or about the 15th day of June, 1933, in the municipality of Pasay,
Province of Rizal, Philippine Islands, within two and one-half (2½)
miles from the limits of the City of Manila and within the jurisdiction
of this court, the said accused conspiring together and helping each
other willfully, unlawfully and feloniously forcibly broke open the
door of the store located at No. 85 Cementina, Pasay, an inhabited
house belonging to and occupied by Tin Bun Boc, and once inside the
said store, with intent of gain and without the consent of the owner
thereof, took, stole and carried away therefrom the following personal
properties of the said Tin Bun Boc:
Money amounting to One (1) Elgin watch, gold plated and a gold-filled chain, valued at One (1) Chinese ring, signet solid gold, valued at One (1) buntal hat, valued at. Nine (9) small packages of “Camel” cigarettes Nine (9) small packages of “Chesterfield” cigarettes Three (3) cans of Milkmaid, valued at Total
to
the damage and prejudice of the said Tin Bun Boc in the total sum of
seventy-six pesos and sixty-eight centavos (P76.68), Philippine
currency.
“That the accused Ricardo
Melendrez y Nieto is a habitual delinquent, he having been previously
convicted by final judgment of competent courts twice of the crime of
theft and once of the crime of estafa and having been last convicted of the crime of estafa on September 3, 1932.”
On the date of the trial of this case, Elias Martinez had not yet been
apprehended, for which reason only the other defendant Ricardo
Melendrez y Nieto, who pleaded guilty to the charge, was arraigned.
Whereupon, the court found him guilty of the crime charged in the
information and sentenced him to eight years and one day of prision mayor, and to serve an additional penalty of six years and one day of prision mayor for being a habitual delinquent. From this judgment Ricardo Melendrez y Nieto appealed.
In this instance, counsel for the appellant contends that lack of
instruction on the part of the appellant should be considered as a
mitigating circumstance in the commission of the crime. However, aside
from the fact that this court has repeatedly held in its various
decisions that lack of instruction cannot be considered as a mitigating
circumstance in crimes of robbery, the records of the case do not
afford any basis on which to judge the degree of instruction of the
appellant inasmuch as no evidence was taken relative thereto, he having
pleaded guilty.
However, the fact that the appellant pleaded
guilty upon arraignment is a mitigating circumstance which should be
considered in his favor.
On the other hand, the fiscal
contends that the aggravating circumstance of recidivism should be
taken into account against the appellant. This claim of the fiscal is
in accordance with the judgment rendered by this court in bane in the
case of People vs. Aguinaldo (47 Phil., 728) while the old
Penal Code was in force. But the enforcement of the Revised Penal Code
has resulted in a difference of opinion regarding this point on the
part of the members of this court. For this reason, after reviewing all
the decisions affecting this matter, rendered by this court both in
banc and in division, it is now held that the aggravating circumstance
of recidivism should be taken into account in imposing the principal
penalty in its corresponding degree, notwithstanding the fact that the
defendant is also sentenced to suffer an additional penalty as a
habitual delinquent.
The facts alleged in the information
constitute the crime of robbery committed without the use of arms in an
inhabited house, the value of the articles- taken being less than P250.
In accordance with article 299 of the Revised Penal Code, the penalty
prescribed for said crime is prision correccional in its
medium degree. Inasmuch as there is a concurrence therein of one
mitigating and one aggravating circumstance, this penalty should be
imposed in its medium degree.
Wherefore, it being understood
that the principal penalty imposed upon the appellant is two years,
eleven months and eleven days, the judgment appealed from is hereby
affirmed, in all other respects with costs. So ordered.
Street, Malcolm, Villa-Real, Hull, Vickers, Imperial, Butte, and Diaz, JJ., concur.
CONCURRING IN PART AND DISSENTING IN PART
ABAD SANTOS, J.:
I
can not give my assent to the proposition that in the imposition of the
penalty prescribed by law for the crime committed by the appellant, the
aggravating circumstance of recidivism should be taken into
consideration. The appellant is a habitual delinquent, and under our
law and upon the facts of this particular case, recidivism is an
inherent element of habitual delinquency.
Article 14, paragraph 9, of the Revised Penal Code, defines a recidivist as follows:
“A
recidivist is one who, at the time of his trial for one crime, shall
have been previously convicted by final judgment of another crime
embraced in the same title of this Code.”
And article 62, paragraph 5 (c), of the same Code, defines a habitual delinquent as follows:
“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, estafa, or falsificacion, he is found guilty of any of said crimes a third time or oftener.”
It seems clear from the provisions of law above quoted that if, within
a period of ten years from the date of his release or last conviction
of the crime of robo, hurto, estafa, or falsificacion, a person be found guilty of the same crime for the second time, he would be a recidivist; and if he be found guilty for the third
time or oftener, he would be deemed a habitual delinquent. The law
determines the effect to be given to a second conviction, and it also
determines the effect of a third, fourth, and fifth conviction. In
imposing the penalty prescribed for the third, fourth or fifth
conviction of any of the crimes mentioned, it seems to me beyond the
purpose of the law to take again into consideration the legal effect of
the previous, second conviction.
Except as above stated, I agree with the decision of the court.