PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLANT, VS. FIDEL TAN, DEFENDANT-APPELLEE.

Appeal from the order, dated 4 January 1963, of the Court of First
Instance of Samar, in its Criminal Case No. 4097, denying the government’s
motion for the re­-arrest of the accused-appellee, Fidel Tan.

The aforesaid appellee was, under a modified Judgment, sentenced
by said court to suffer —

“an
indeterminate penalty ranging from TWO (2) YEARS & FOUR (4) MONTHS,
as minimum, to FOUR (4) YEARS
and TWO (2) MONTHS, as maximum, both of prision correccional,
with the accessory penalties provided by law, indemnify the heirs of Sinforoso
Volfango P3,000.00, and pay the costs.”

He
appealed, but upon his own motion the Court of Appeals dismissed the
appeal, in a resolution of 1 August 1958.

The sentence having
become final, the accused was committed to the Director of Prisons, on 2 March
1959, through the provincial warden.

The provincial warden did
not, however, commit the prisoner to the national penitentiary but retained him
in the Samar provincial jail.

Thereafter, the warden took it upon himself to apply the
provisions of Article 97 and 99 of the Revised Penal Code as well as Act No.
2489, and cre­dited the prisoner with good conduct time allowance.  After the prisoner’s actual confinement in
Jail for 2 years, 8 months and 21 days, the warden released him on 23 November 1961.

On 6 September 1962, the provincial fiscal moved for the
re-arrest of the accused and to order him recommitted to the national
penitentiary, on the ground that the provincial
warden had no authority to release him with good conduct time allowance.  The motion was unopposed.

Acting on the motion, the court required the warden to explain
why the prisoner was kept in the provincial Jail and not “sent to
Manila” and to answer the fiscal’s
allegation that he released the
prisoner without an order from the Director of Prisons and before the service
of the full term of the sentence.

The warden explained as
follows:

“That said prisoner was not made to serve his im­prisonment in
the national penitentiary because sometime in 1959 our office received a
communication from the Director of Prisons to withhold transfers of prisoners
from the provin­cial jails to the New Bilibid Prison due to congestion
resulting in the bloody riots.  In same
year when my attention was called why prisoner Fidel Tan, was not yet sent to
Muntinlupa inspite of the cessation of the riots, I have explained in a letter
dated October 1, 1959, to the Assistant Director of Prisons, that same prisoner
could not be sent as he was undergoing close medical treatment of his left
lumbar region where previous wound was located, his left thigh, and presence of
blood in the urine as evidenced by a medical certificate sent together with my explanation.  Being of the opinion and belief then that
if this prisoner be transferred to the national penitentiary he might be
involved in another occasional and undetermined riots, where his physical condition cannot resist the fear and which
may aggravate his ailment, that for the sake of humanity, until his physical
condition should improve but which did not until his time of release.

“That said prisoner was released without order from the
Director of Prisons on the ground that he cannot be made to still be lodged in
the provincial jail when the date of his release was already due, much less
send him to Muntinlupa when the term of his sentence minus good behavior credit
has expired.

“That said prisoner was released after having served the term
diminished by the credit of good conduct time al­lowance in accordance with the
provisions of Art. X1, Sec. 1 (a) and (b) of the Revised Rules and Regulations
for the Government of Insular and Provincial Prisoners in the Phi­lippines.  That the computation made by me was correct
according to my interpretation in good faith of the afore­mentioned provision
based on the maximum term of sentence of 4 years 2 months.”

On 21 September 1962, the lower court issued an order requiring
the appearance of the warden to show the veracity of his information and, on 4
January 1963, it issued the order that is now the subject of this appeal
denying the fiscal’s petition to recommit the accused.

The excuses tendered by the provincial warden are clearly
inacceptable.  The alleged fear that the
convict Tan might be involved in occasional riots in the Insular Penitentiary
is but a flimsy pretext for evading the warden’s plain duty of remitting the
prisoner to his proper place of confinement. 
Having been sentenced to more than one year of imprisonment, the convict
was not a prov­incial prisioner but an insular prisoner (Adm. Code, section
1740), and there being no showing that his life would be endangered by the trip
to Muntinlupa penitentiary, the warden’s failure to send him thither was a
breach of duty for which said officer should be held accountable.  It needs no stressing that to allow
provincial wardens to retain insular prisoners without proper authorization
would open the way to all sorts of discrimination in the treatment of prisoners
and constitute a standing invitation for the commission of abuses and anomalies
for personal or political motives.

Nor do we find in the record any justification for the warden’s
usurping the authority of the Director of Prisons in crediting the prisoner
with good conduct time allowance. 
Article 99 of the Revised Penal Code vests such authority ex­clusively
in the Director and no one else.

Assuming that appellee Tan was entitled to good conduct time
allowance, his release by the provincial warden, after an imprisonment of only
2 years, 8 months and 1 day, was
premature.  Under paragraph No. 1,
Article 97, of the Revised Penal Code, he may be allowed a deduction of five
(5) days for each month of good behavior during his first two years of
imprisonment, which would be 24 months multiplied by 5, or 120 days; under
paragraph No. 2, he may be allowed a deduction of eight (8) days a month for
the next three years.  For the balance of
eight (8) months, multiplied by 8, we have 64 days; so that the total credit
for good behavior would be 184 days, equivalent to 6 months and 4 days.^[1]
The prisoner’s actual confinement of
2 years, 8 months and 21 days, plus his possible total credit of 6 months and 4
days, would give the result of 3 years, 2 months and 25 days.  Since the maximum term of his sentence is 4
years and 2 months, appellee Tan, assuming that he is entitled to good conduct
time allowance, has an unserved portion of 11 months and 5 days.^[2]

The court below denied the fiscal’s motion for the re-arrest of
the accused-appellee on the following grounds: 
(a) that when the accused-appellee commenced serving his sentence and
was committed to the warden, the court lost jurisdiction over the prisoner’s
“person with respect to his imprisonment”; (b) that to re-arrest him
after his release would amount to double jeopardy, or deprive him of his
liberty without due process of law; and (c) that the accused abided by the judgment
and served it in good faith, even if the act of the jailer was irresponsible
and erroneous.

We agree with the Solicitor-General
that the lower court had already lost jurisdiction to amend or alter its
judgment of conviction, but not
over its execu­tion or satisfaction.  The court’s jurisdiction was not
terminated by the commit­ment of the convict to the jail authorities — the
commitment was but the start in carrying out of the court’s decision.  It is the prerogative of the court meting out
the punishment to see to it that the
punishment be served until, by act of lawfully authorized administrative agencies of the state, the convict is
pardoned or paroled or, on lawful grounds, set at liberty sooner than
the expiration of the sentence imposed.

The prisoner’s re-arrest^[3]
would not place him twice in jeopardy because his re-incarceration is merely a continuation of the penalty that he
had not completely served due to the erroneous act of the warden; it is not a
new or subsequent conviction.  Neither would his re-arrest deprive him of
liberty without due process of law, because he was not yet entitled to liberty at the time he was released.  Service of penalties and allowance for good
conduct are specifically, even
elaborately, governed by the Penal Code and do not depend upon the good
faith of the warden and of the prisoner.

For the foregoing reasons, the appealed order is hereby reversed and a new one
entered, ordering the re-arrest, and the continuance of the imprisonment, of
the accused appellee, Fidel Tan, for
one (1) year, five (5)
months and eleven (11) days more.

Let a copy of this decision be furnished to the Director of Prisons, who is hereby directed to
incarcerate the appellee in the national penitentiary, if present conditions
thereat would allow his accommodation, or if not, in any other suitable jail,
without prejudice to credit for good behavior from the time he was jailed on 2
March 1959, in accordance with Article
99 of the Revised Penal Code.

Let another copy of this decision be sent to the Secretary of Justice,
that he may take action, if
warranted, against the warden concerned.

No costs.

Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, Zaldivar,
Sanchez and Castro, JJ.,  concur.

^[1]
The Solicitor-General’s computation is 6 months and 10 days.

^[2]
The Solicitor-General’s computation is 10 months and 29 days.  The foregoing computations suffer from
clerical errors and disregard par. 2, Art. 97.

^[3]
Some authorities hold that a fresh warrant is not necessary (4 Moran 120, 1963 Ed.).