THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. TIENG PAY, DEFENDANT AND APPELLANT.

Upon said complaint the defendant was arrested, arraigned, plead
not guilty, was tried, found guilty of the crime charged in the
complaint, and sentenced to be imprisoned for a period of six months
and to pay a fine of P300 and, in case of insolvency, to suffer
subsidiary imprisonment in accordance with the provisions of the law,
and to pay the costs. From that sentence he appealed to this court.

The appellant alleges that the lower court committed the following errors:

(1) In admitting a record for the purpose of showing that the
defendant had theretofore been convicted of a similar offense, without
giving him an opportunity to examine said record; (2) in admitting
proof tending to show that he was guilty of a former conviction of the
same offense, without showing that the decision in the former case was
final; (3) in admitting proof of former conviction, when former
conviction was not charged in the complaint; and (4) in imposing upon
him the penalty of six months of imprisonment and a fine of P300. With
reference to the first and second alleged errors, the record shows that
just before the prosecuting attorney closed his proof, he offered in
evidence, as proof, expediente No. 18100 of the Court of
First Instance of the City of Manila, admitting at the same time that
an appeal was then pending in the Supreme Court in said cause. No proof
was presented nor admitted, showing that a final decision had been
rendered in said cause (No. 18100). Said expediente was
evidently presented by the prosecuting attorney for the purpose of
showing the existence of an aggravating circumstance in accordance with
paragraph 18 of article 10 of the Penal Code. Whether or not said expediente
was admissible at all in evidence under the complaint in the present
case, will be discussed later. It certainly, however, was not
admissible for the purpose of showing the existence of an aggravating
circumstance, for the very reason that the prosecuting attorney, at the
time he offered it, stated to the court that an appeal was then pending
in the Supreme Court in said cause. Said paragraph 18 of article 19 of
the Penal Code defines a recidivist as “one who, at the time of his
trial for one crime, shall have been convicted by final judgment of another crime embraced in the same title of this Code.”

It may be argued that said paragraph 18 of article 10 of the Penal
Code is not applicable to the present case for the reason that the
defendant was charged under a special law (Act No. 2381). It may be
added, however, that said paragraph 18 was not quoted for the purpose
of showing its applicability but for the purpose of having a definition
of who is a recidivist. Section 2 of Act No. 2381 uses the word
“recidivist.” Said section provides that “in case of recidivism
incident to the commission of a second or subsequent offense,” then the
penalty shall be increased. Evidently, the Legislature did not intend
to give a different meaning to “recidivism” in Act No. 2381 than the
generally accepted and defined meaning of the word “recidivist.”
Certainly, the Legislature did not mean to increase the penalty of a
person charged with a crime, who had theretofore been convicted of
another crime, unless and until there had been a final judgment in the
former case.

Evidently, the lower court used the evidence referred to for the
purpose of increasing the penalty, for the reason that the lower court
made special reference to the fact that the defendant had theretofore
been convicted of a similar offense. By reason of the fact that no
proof was presented showing that the defendant was, in fact, a
recidivist under the definition above given, the court improperly
admitted, as proof, the record in cause No. 18100.

And moreover, the lower court admitted said record (cause No.
18100) without giving the defendant an opportunity to examine the same,
which is another reason why the same should not have been admitted for
the purpose of increasing the penalty. The defendant had a perfect
right to examine said record, and it should not have been admitted in
evidence without affording him that opportunity.

The lower court also admitted another expediente (No. 14213 of the Court of First Instance of the City of Manila). It is admitted in the record that that expediente
(No. 14213) was a case against another defendant, by the name of Tan
Tuan, who was not even a defendant in the present case. The record does
not show why that expediente was admitted in evidence. Objection to the admissibility of said two expedientes (Nos. 18100 and 14213) was duly made and erroneously overruled by the lower court.

With reference to the third assignment of error, to wit: That the
court erroneously admitted proof of recidivism when recidivism was not
charged in the information, it may be said (a) that the law requires that in every criminal case in courts of record a written complaint of the charges must be presented; (b) that that complaint must contain a full and complete description of the crime charged, reciting the essential facts; (c) that the same must be read to the accused; and (d)
that no evidence should be adduced during the trial of the cause which
does not directly or indirectly tend to prove some of the essential
allegations of the complaint. 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. In the present case, the lower
court admitted evidence of recidivism against the objection of the
defendant, without the same having been alleged in the complaint. It
must follow, therefore, that the court committed an error in admitting
such evidence-

With reference to the fourth error assigned, in view of what we
have just said, the conclusion cannot be escaped that the severe
penalty imposed by the lower court was induced by the belief that the
defendant was a recidivist. Eliminating the proof to which we have made
reference above, and it must be eliminated because it was erroneously
admitted, there is no proof in the record that the appellant is a
recidivist.

It may be added, further, that, no doubt, the severe penalty
imposed by the lower court was due to the belief that the defendant was
found in the possession of 200 grams of opium, whereas, as a matter of
fact, the only proof in the record concerning the amount of opium found
in his possession was an admission by the defendant himself. His
admission was that he had 20 grams of opium, and not 200 grams.

Inasmuch, therefore, as it clearly appears from the record that the
lower court imposed the severe penalty upon an erroneous view of the
evidence presented, and considering that the opium found in the
defendant’s possession was of a small amount, we are of the opinion
that the sentence of the lower court should be modified. (U. S. vs. Ng Tuy, 33 Phil., 261.)

Therefore, the sentence of the lower court is hereby modified, and
it is hereby ordered and decreed that the defendant be sentenced to be
imprisoned for a period of three months and to pay a fine of P300 and,
in case of insolvency, to suffer subsidiary imprisonment in accordance
with the provisions of the law, and to pay the costs. So ordered.

Araullo, Street, Avancena, and Villamor, JJ., concur.