THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. GERARDO NAZARIO Y ENRIQUEZ, DEFENDANT AND APPELLANT.

The appellant, Gerardo Nazario y Enriquez, was accused in the Municipal Court
of Manila of qualified theft and, after trial, convicted of only simple theft
for which he was sentenced to four months and one day of arresto mayor
and to pay the costs. An appeal was taken to the Court of First Instance of
Manila wherein a plea of not guilty was entered by the appellant who, however,
subsequently withdrew the same and pleaded guilty to simple theft. Whereupon, he
was sentenced to the same penalty imposed by the Municipal Court. After a notice
of appeal had been filed, the appellant presented a motion praying that the
judgment be set aside, that he be allowed to withdraw his plea of guilty and
substitute it with his former plea of not guilty, and that a new trial be held.
No action on this motion appears to have been taken by the Court of First
Instance; and in the appeal now before us, the appellant contends that said
motion should have been granted.

Section 6 of Rule of Court No. 114 provides that if judgment of conviction
has been entered on a plea of guilty and the same has not become final, “the
court may set aside such judgment, and allow a plea of not guilty, or, with the
consent of the fiscal, allow a plea of guilty of a lesser offense which is
necessarily included in the charge.” Consequently, in not allowing the
withdrawal of appellant’s plea of guilty, the Court of First Instance of Manila
merely exercised a clearly discretionary power in a way warranted by the
circumstances of this case. The appellant cannot be said to have acted
ignorantly and hastily in the matter, not only because he was assisted by an
attorney de oficio, but because, after his trial and conviction in the
Municipal Court, he must have been more than sufficiently conversant with his
case at the time he was arraigned, on appeal, in the Court of First Instance.
The withdrawal was made after a notice of appeal had been filed and was based on
an allegation that the principal witnesses for the prosecution had already gone
to the United States, from which the implication is plain that said withdrawal
was a colorable afterthought. As hinted in the brief for the Government, the
affidavit of one Cayetano Suarez attached to the motion for withdrawal and
claimed to be newly discovered evidence, contains gratuitous conclusions
regarding appellant’s innocence that “cannot be given greater weight than the
very admission of appellant.”

The appellant also argues that the lower court should have considered his
plea of guilty as a mitigating circumstance. This argument raises a question
already well settled by the rule that the appellant’s plea of guilty entered
upon appeal in the Court of First Instance cannot be considered a mitigating
circumstance. (People vs. Hermino, 64 Phil., 403; People vs.
Bawasanta, 64 Phil., 409; People vs. Javier, 64 Phil., 413; People
vs. Cariaga, G. R. No. 46245, October 18, 1938; People vs. Jose,
68 Phil., 396.)

Even so, we are constrained to restate, for the benefit of those who would
seek to re-examine the rule, the following considerations in support of our
adherence: (1) The reason for the existence of the mitigating circumstance of
the plea of guilty is that it reveals to a certain extent an act of repentance,
a moral disposition favorable to the defendant’s reform and submission to the
law (People vs. De la Cruz (63 Phil., 874), cited in People vs.
Hermino (supra), the evident purpose of the statute being to encourage
such repentance which not only ennobles the soul and tends to avoid recidivism
but also saves the Government from the expenses of a trial and the judicial and
executive officials from much trouble (People vs. Javier, supra).
Such repentance cannot be attributed to the herein appellant who not only did
not plead guilty in the competent court of origin (Municipal Court) but
appealed, first, to the Court of First Instance and, then, to this Court. (2)
The contrary rule will open the door to cases wherein the defendant
intentionally abstains from pleading guilty in the justice of the peace or
municipal court in the hope of being acquitted and, upon conviction and on
appeal to the Court of First Instance, pleads guilty merely for the purpose of
enjoying the benefit of such mitigating circumstance. In such cases the
spontaneous willingness on the part of the defendant to admit the commission of
the offense charged, the very thing rewarded by the mitigating circumstance, in
question, is certainly absent. (3) While a trial de novo in the Court of
First Instance technically means a trial in the same manner, with the same
effect, and upon the same issues as when the case was tried in the Municipal
Court, in accordance with the rules of practice in the appellate court
(Crisostomo vs. Director of Prisons, 41 Phil., 468), it does not follow
that all the proceedings in the lower court have thereby been wiped out so as to
preclude the ascertainment of whether the defendant voluntarily pleaded guilty
for the purpose of determining the presence of said mitigating circumstance
(People vs. Bawasanta, supra). (4) Inasmuch as an accused will not
plead guilty unless he in fact committed the offense which he is charged, there
is neither sense nor reason for allowing him, upon a plea of not guilty, to be
tried and convicted in a municipal or justice of the peace court before he can
be said to have discovered for the first time, in the Court of First Instance,
that he is the author of said offense.

Being in accordance with law, the appealed judgment is hereby affirmed with
costs against the appellant. So ordered.

Feria, Pablo, Bengzon,
Padilla, and Tuason, JJ., concur.

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HILADO, J.:

I concur in that a judgment of conviction is deserved by the herein
appellant. I, however, have to dissent from the majority’s stand in not
appreciating in his favor as a mitigating circumstance under article 13, No. 7,
of the Revised Penal Code, his voluntary confession of guilt before the Court of
First Instance prior to the presentation of evidence for the prosecution. The
aforecited provision does not make, nor even hint at, the distinction which the
majority make. The provision being clear and unequivocal, our only duty is to
apply, not construe, it.

MORAN, C.J.:

I join Mr. Justice Hilado in this
opinion.

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BRIONES, M.:

Estoy conforme con el veredicto de
culpabilidad, pero disiento de la ponencia en cuanto no se aprecia como
atenuante el haberse declarado culpable el acusado ante el Juzgado de Primera
Instancia, al elevarse la causa del juzgado municipal en grado de apelacion.
Donde la ley no distingue no debemos distinguir. El articulo 13, seccion 7 del
Codigo Penal Revisado, establece como atenuante la circunstancia de que el
acusado “haya retirado voluntariamente su declaracion de no-culpable ante el
tribunal, antes de la presentacion de las pruebas de cargo”, y no distingue
entre causas originarias o elevadas en alzada para ante el Juzgado de Primera
Instancia.

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PERFECTO, J.:

On October 23, defendant filed notice of appeal. On October 28, defendant
filed with the lower court a petition to set aside the decision, to hold a new
trial on newly discovered evidence, and to allow the defendant to withdraw his
plea of guilty and to substitute it with one of not guilty. As stated in the
majority opinion, the lower court failed to take action on the motion.

Section 6 of Rule 114 of the Rules of Court provides:

“Plea of guilty—withdrawal of.—The court may in its discretion
at any time before sentence permit a plea of guilty to be withdrawn. If judgment
of conviction has been entered thereon and the same has not become final, the
court may set aside such judgment, and allow a plea of not guilty, or, with the
consent of the fiscal, allow a plea of guilty of a lesser offense which is
necessarily included in the charge.”

There is no question that the power to allow withdrawal of a plea of guilty
to be substituted for one of not guilty rests upon the sound discretion of the
court. But there should not also be any quarrel as to the spirit of the rule. As
drafted, the above provision reveals the purpose of granting ample opportunity
to the defendant to make a withdrawal. The provision permits the withdrawal at
any time before sentence. Even after judgment of conviction has been entered,
provided the judgment has not become final, the court may set aside such
judgment and allow a plea of not guilty. Therefore, it is our opinion that only
in exceptional cases and upon strong grounds should the court deny the petition
of withdrawal. Profiting by the sad experience of the past, when many innocent
persons were convicted upon their plea of guilty which they had made
involuntarily, the drafters of the rules enhanced the opportunity of the
defendant to withdraw his plea of guilty. There is no reason why the withdrawal
prayed for should be denied; the discretion should be exercised to grant.

In the present case, there are two main reasons in support of the reversal of
the appealed decision. First, because there is no reason why the motion filed by
the defendant to withdraw his plea of guilty should not be granted, and in the
second place, because the lower court failed to act on said motion for no reason
at all.

The case should be remanded to the lower court so that the same may exercise
the discretion granted to him by section 6 of Rule 114 which he failed to
exercise.

The next important question in this case is whether the plea of guilty should
be reckoned as a mitigating circumstance. According to article 13, subsection 7
of the Revised Penal Code, one of the mitigating circumstances is “that the
offender had voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.”

The Solicitor General agrees with the defense counsel that the court should
have accorded appellant the benefit of said mitigating circumstance, that of
having confessed his guilt before any evidence has been presented. In this case
no kind of evidence has been presented by any one. The majority disagree. Their
main argument is that it is a settled doctrine that appellant’s plea of guilty
entered upon appeal in a Court of First Instance cannot be considered as a
mitigating circumstance. But such allegedly settled doctrine is contrary to the
provisions of the law which provides that the plea of guilty shall be considered
as a mitigating circumstance if entered before the presentation of the evidence
for the prosecution. In the lower court no evidence has at all been presented by
the prosecution. Therefore, the plea of guilty entered into by appellant has
been made in accordance with the specific provision of subsection 7 of article
13 of the Revised Penal Code.

Any rule that runs counter to a specific provision of the law cannot be taken
into consideration. In a government of laws, legal provisions should prevail
upon doctrines or rules which are against the law.

It is alleged that the reason for the mitigating circumstance in question is
because the plea of guilty reveals to a certain extent an act of repentance, a
moral disposition favorable to the defendant’s reform and submission to the law,
and that the purpose of the statute is to encourage such repentance to avoid
recidivism and to save the government the expenses of a trial and the judicial
and executive officials from much trouble.

In our opinion the only reason of the law for recognizing the confession of
guilt as a mitigating circumstance, is expediency and no other. To talk about
repentance, disposition favorable to moral reform, submission to law, avoidance
of recidivism is to look at the matter through the glass of illusion or fiction.
The lawmakers were realists and not dreamers.

The confession of guilt was not a mitigating circumstance before the
enactment of the Revised Penal Code, but it has been an old practice in courts
to consider it as such to expedite the early disposal of criminal cases wherein
the accused wanted to take advantage of the benefit. The legislature only
sanctioned by law what was an old practice on courts. In our opinion, the lower
court erred in not according appellant the benefits of said circumstance.

For
all the foregoing, we are of opinion and so we vote that this case should be
remanded to the lower court, where the defendant shall be allowed to withdraw
his plea of guilty to be substituted for that of not guilty or, at any rate, so
that the lower court may exercise the power granted by section 6 of Rule 114,
and that if his plea of guilty should be made to stay, that it be taken into
consideration so as to reduce the penalty imposed on appellant as recommended by
the Solicitor General.