G.R. No. 30664. February 02, 1929
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. MANUEL ABUYEN. Y ELAIS, DEFENDANT AND APPELLANT.
VILLA-REAL, J.:
Court of First Instance of Manila in which he was convicted of the
crime of frustrated qualified theft, having confessed, and sentenced to
one month and one day arresto mayor, and to the additional
penalty of ten years, for habitual delinquency, with the accessories of
the law, and the costs of the action.
In support of his appeal the appellant assigns the following alleged
errors as committed by the trial court in its judgment, to wit:
“The trial court erred:
“1. In convicting
the defendant without having informed him before arraignment of his
right to appear with counsel, and in not having asked him if he desired
the court to name an attorney to defend him if he was unable to employ
one himself.“2. In sentencing the defendant to the
additional penalty of ten years’ imprisonment and in considering the habitual delinquency without having first required the
Attorney-General to prove it, or, at least, to present the cases
wherein it appears that the defendant had been really and truly
convicted of the same crime of theft, in accordance with the provisions
of Act No. 3397.“3. In sentencing the defendant to the
penalty of one month and one day of imprisonment, and in reaching the
conclusion that the value of the stolen article is twenty pesos.“4.
In sentencing the defendant to an additional penalty of ten years as an
habitual delinquent, and in not holding that Act No. 3397 is
unconstitutional because it inflicts cruel and unusual punishment.“5.
In imposing upon the defendant an additional penalty of ten years for
the crime of frustrated theft, which is not provided for in section 1
of Act No. 3397, even supposing it to be constitutional.”
As to the first assignment of error, while it is true that it is
the duty of the trial court to ask the defendant who appears without
counsel whether he desires counsel to be assigned to defend him before
he is arraigned, pursuant to section 17: of General Orders No. 58, it
not appearing, as it does not appear positively proven, that the trial
court failed to inform the defendant-appellant of his aforesaid right,
it must be presumed that the court below complied with its duty, in
accordance with the provision of paragraph 14, of section 334 of the
Code of Civil Procedure.
Touching the second assignment of error, the information alleges
that the defendant has been thrice convicted of the crime of theft, and
that he is an habitual delinquent in accordance with the provisions of
Act No. 3397. Section 1 of said law defines who an habitual delinquent
is and reads as follows: “Any person who within a period of ten years
from the date of his release or of his last conviction by the courts of
this country of the crimes of robo, hurto, estafa,
embezzlement, or forgery, or of a violation of the laws against
vagrancy or prostitution, is found guilty of any of said crimes a third
time, or oftener.” As this is a definition of the law, it is presumed
the defendant knew it, and in pleading guilty to the crime charged in
the information, though frustrated, he admitted all the facts alleged
therein and relieved the prosecution of the obligation of proving that
he had thrice been convicted of the crime of theft, and that for the
fourth time he has committed the same crime of theft within the period
of ten years from the date when he was set at liberty, or since his
last conviction of said crime by the courts of this country.
With respect to the third assignment of error, the information
having alleged that the value of the article stolen is P20, and the
defendant having confessed his guilt, he also admitted that the value
of the article stolen is as alleged in the information, thus relieving
the prosecution of the obligation of proving said value.
The question of constitutional law raised in the fourth assignment
of error has already been decided by this court in the cases of People
vs, Nayco (45 Phil., 167), and People vs. Sierra, G. R. No. 28516,[1] contrary to the appellant’s contention.
As to the fifth assignment of error, the crimes of robbery, theft, estafa
and falsification mentioned in Act No. 3397, which prescribes
additional penalties for habitual delinquents, are all defined and
penalized in the Penal Code, and for the purposes of the aggravation of
the penalty on account of the presence of the aggravating circumstance
of recidivism, the Supreme Court of Spain, in its judgment of March 12,
1889, held that the commission of said crimes whether in the frustrated
or attempted form may be taken into account for that purpose. The
Philippine Legislature, composed mostly of practicing attorneys, is
acquainted with the Penal Code in force in these Islands, as well as
with the jurisprudence of the Supreme Court of Spain, and of this court
upon the matter; therefore, in referring to said crimes in Act No. 3397
without making any distinction as to degrees of commission, it did so
taking into account the jurisprudence upon the matter. And its
intention could not have been otherwise, because if the purpose of the
law is to render more effective social defense and the reformation of
multi-recidivists who, with the short terms of imprisonment to which
they had been sentenced for the crimes they had previously committed,
far from mending their ways have only perfected themselves in the
commission of the same
crimes, thus becoming a constant menace to society, and the crime which
they commit again, be it an attempt or frustration, reveals the
persistence in them of the inclination to wrongdoing, and of the
perversity of character that had led them to commit the previous
crimes. If this is so, and if he who commits a crime, whether it be
attempted or frustrated, subjectively reveals the same degree of de
pravity and perversity as one who commits a consummated crime, not to
apply to him the law on habitual delinquency would be to thwart its
purposes and to expose society to a constant menace from such
delinquents who, when they resolve to commit a crime, certainly do not
propose not to go beyond an attempt or a frustration, but rather to
consummate it.
This interpretation does not run counter to the general rule that
penal laws are to be strictly construed, for this rule has an
exception, namely, that it is not to be permitted to thwart the clear
and manifest intention of the legislator. Sutherland, in his work
entitled “Statutes and Statutory Construction,” vol. II, page 985,
paragraph 5S0, states the following:
“In State vs. Small, the court, referring
to the rule of strict construction of penal statutes, says: ‘By this
rule nothing more is meant than that penal statutes shall not, by what
may be thought their spirit and equity, be extended to offenses other
than those which are specifically and clearly described and provided
for. The reason of the rule is that the law will not allow of
constructive offenses or arbitrary punishments. * * * This rule of
strict construction does not exclude the application of common sense to
the terms made use of in the act. Even a penal statute should not be so
construed as to work a public mischief, unless required by words of
explicit and unequivocal import. Effect must be given to the intent of
the legislature clearly apparent upon the face of the statute, although
such construction seem contrary to the exact letter of the statute.”
In the case of People vs. Raymond (96 N. Y. Rep., 41), the
New York Court of Appeals, speaking through Justice Finch, in general
terms of the scope of laws on habitual delinquency, stated:
“That the accused has already been convicted of a
felony or an attempt to commit one, or of a ‘petit larceny,” shows that
punishment has done him no good; that no reformation was effected; that
he is a persistent criminal, toward whom mercy is misplaced; and by
reason of this character of the man, thus shown by his conduct, greater
severity of punishment is prescribed. The reason is the same whether
both crimes are of similar character, or of the same grade, or not.
Both are crimes, and the perpetration of the second, however different,
shows such a persistence in evil, such a continued criminality, as to
justify and make prudent a severer penalty than should be inflicted
upon a first offender. If we adopted the construction1 sought, a
prisoner might have been convicted of many felonies, and yet by
judicious changes from one to another, or running up or down the
different grades, escape entirely the penalty of a second offense.”
For the foregoing considerations, we are of opinion and so hold,
that the provisions of Act No. 3397 on habitual delinquency are
applicable to the crimes therein enumerated, which are defined and
penalized in the Penal Code, not only when consummated, but also when
only attempted or frustrated.
The crime committed by the defendant-appellant is frustrated
qualified theft defined in the first paragraph of article 517, and
punished in paragraph 5 of article 518, as amended by Act No. 3244 in
connection with article 520, paragraph 3, of the Penal Code, the
culprit having been a recidivist more than twice. The penalty provided
by article 518, paragraph 5, of the Penal Code for the consummated
crime of theft, is arresto mayor in its full extent. And
for the frustrated crime, the penalty next lower in degree, i. e., a
fine, should be imposed in accordance with the provision of article 65
of the same Code. Inasmuch as the defendant-appellant has been twice a
recidivist, the penalty next higher in degree to the fine, i. e., arresto mayor
in its full extent, must be imposed in accordance with the
aforecited article 520 of the said Code. As there is no circumstance to
be considered which modifies the criminal liability, said penalty must
be imposed in its medium degree, i. e., two months and one day to four
months arresto mayor.
By virtue whereof, and in accordance with the recommendation of the
Attorney-General, the defendant-appellant is hereby sentenced to two
months and one day arresto mayor, and to the additional penalty of ten years, in accordance with Act No. 3397, with costs against the appellant. So ordered.
Johnson, Malcolm, VilLamor, Ostrand, and Rommldez, JJ., concur.
Johns, J., dissents.
[1] Promulgated April 21, 1928, not reported.