THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ARCADIO TANYAQUIN Y RICO (ALIAS ARCADIO RICO), ET AL., DEFENDANTS. ARCADIO TANYAQUIN Y RICO (ALIAS ARCADIO RICO…

This is ah appeal by the accused Arcadio Tanyaquin y Rico (alias Arcadio
Rico) from the judgment of the Court of First Instance of Manila, finding him
guilty of the crime of theft and sentencing him to four months and one day of
arresto mayor, to pay the proportional part of the costs, to return the stolen
articles to the respective owners, and, being an habitual delinquent, to suffer
an additional penalty of ten years arid one day of prision mayor.

In support of his appeal, the appellant assigns the following alleged errors
committed by the trial court in its judgment, to wit:

“The lower court erred in not taking into account the mitigating circumstance
of the appellant’s having pleaded guilty of the crime charged; and in imposing
upon him the penalty of four months and one day of arresto mayor, for the crime
of theft with which he is charged in the information, and the additional penalty
of ten years and one day of imprisonment, as an habitual criminal, instead of
two months and one day of arresto mayor and eight years and one day of prision
mayor, respectively.”

With regard to the first assignment of error, the crime of theft committed
and admitted by the accused is provided fbr in article 309, paragraph 4, of the
Revised Penal Code, in connection with article 308 of the same Code, inasmuch as
the amount is greater than P50 and less than P200, that is P160, which is the
value of the articles stolen, and the penalty provided is arresto mayor in the
medium degree to prision correccional in the minimum degree, or, two months and
one day to two years and four months’. In fixing the penalty we must take into
consideration that the defendant spontaneously pleaded guilty, which is a
mitigating circumstance according to paragraph 7, article 13 of the Code,
although it is set off by the aggravating circumstance of recidivism, according
to paragraph 9, article 14 of the Code; for which reason the penalty must be
imposed in the medium degree, or four months and one day to six months, as1 if
there were no circumstance to modify the criminal liability, in accordance with
paragraph No. 1, article 64, of the Revised Penal Code.

Inasmuch as the penalty of four months and one day of arresto mayor imposed
by the trial court is within the medium degree of the penalty assigned by the
law, the court did not commit the first error mentioned.

With reference to the second assignment of error, the appellant’s criminal
record shows that for the crimes of qualified theft and robbery committed from
1924 to 1926, the sentence was suspended in some and the criminal action in
others, and he was ordered committed to the boys’ reformatory in accordance with
section 3 of Act No. 1438, which took effect on January 11, 1906, and section 3
of Act No. 3203, which took effect on December 3, 1924, for which reason the
sentence in the former cannot be taken into account for the purpose of treating
him as an habitual criminal according to the last paragraph of case 5 of article
62 of the Revised Penal Code, inasmuch as the sentences were suspended in them,
and no sentence was imposed in the latter.

The only convictions that may be taken into consideration for the purpose of
determining whether he is an habitual criminal are those of February 13, 1931,
for simple theft, and February 14, 1931, for domestic theft, which must be
regarded as only one conviction because the second was committed before he was
convicted of the first. The convictions of November 13, 1931, and November 19,
1931, for qualified theft; of November 24, 1931, for theft; of December 5, 1931,
for robbery, and of December 19, 1931, for simple theft, must be regarded as one
conviction also for the same reason. Wherefore, only two convictions must be
counted against him, the third being the subject matter of the present appeal,
within the ten years following the last conviction. Consequently, the additional
penalty to be imposed upon him must be that provided in subparagraph (a),
paragraph 5, of article 62 cited above, which is prision correctional in the
medium and maximum degrees, or two years, four months, and one day to six years.

The appellant contends, and the prosecution agrees, that in fixing the
additional penalty provided in article 62, paragraph 5, of the Revised Penal
Code for habitual delinquency, the circumstances modifying the criminal
liability must be taken into account, and the rules prescribed in article 64,
applied.

Both aggravating and mitigating circumstances are established in the Revised
Penal Code for the purpose of increasing or decreasing the penalty to be
imposed, according to the greater or lesser seriousness of the crime committed,
either by itself or arising from the defendant’s moral attributes. The generic
aggravating and mitigating circumstances modifying the criminal liability for
the offense being prosecuted having nothing to do with the habitualness, they
cannot be taken into account to increase or decrease the additional penalty
imposed for such habitual delinquency, as they had no influence whatever in the
formation of said condition. Furthermore, if they were taken into account to
aggravate the additional penalty, they should be considered twice, in fixing the
penalty for the crime prosecuted, and in fixing the additional penalty, which
the law does not authorize; consequently, it could not have been the intention
of the legislator that mitigating and aggravating circumstances should be taken
into account in fixing the degree in which the additional penalties provided for
habitual criminal should be imposed, and which has been left to the sound
judgment of the courts.

In view of the foregoing considerations’, the additional penalties provided
in paragraph 5, article 62 of the Revised Penal Code, must be imposed according
to the sound judgment of the trial court without taking into account the
modifying circumstances present in the commission of the crime last prosecuted.

In view of the circumstances of the case, we hold that the additional penalty
of four years, nine months, and ten days of prisidn correctional must be imposed
upon the herein accused-appellant.

By virtue whereof, the judgment appealed from is affirmed with reference to
the principal penalty and its accessories, and modified with reference to the
additional penalty, which is hereby reduced to four years, nine months, and ten
days of prision correctional, with costs against the appellant. So ordered.

Malcolm, Ostrand, Abad Santos, Hull, Vickers, Imperial, and Butte,
JJ., concur.

 

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DISSENTING

AVACEÑA, C. J.,

I do not agree with the majority decision in this wherein it is held that the
modifying circumstances present in the last crime should not be taken into
account in fixing the additional penalty provided for habitual delinquency in
article 62, No. 5, of the Revised Penal Code. In my opinion these circumstances
should be taken into account, and the penalty applied in the proper degree, like
the principal penalty.

Article 62, paragraph 5, provides an additional penalty for habitual
delinquency, which is, according to the degrees of habitualness, prision
correctional in the medium and maximum degrees, prisidn mayor in the minimum and
medium degrees, and prisidn mayor in the maximum degree to reclusion temporal in
the minimum. It will be noticed that these additional penalties are divisible
and comprise two degrees each.

Article 65, in connection with article 64, provides that divisible penalties
should be imposed in the proper degree, according to the circumstances modifying
the criminal liability. The law does not in these provisions make any
distinction between the principal penalty and the additional penalty, and the
fact that it fixed the penalty in degrees indicates the intention that they
should be applied in the same manner as the principal penalty.

The consideration that, if the modifying circumstances of the last crime are
taken into account in the application of the additional penalty, they would be
considered twice, would seem to have but little weight. The very act
constituting the last crime is and must be considered twice in applying the
principal penalty, and in imposing the additional penalty, inasmuch as the
latter is not imposed only for the crimes formerly committed, but principally
for the last crime. To take away the last crime, the additional penalty ceases
to have a reason for existing.

Furthermore, if the additional penalty is to be imposed at the court’s
discretion, such discretion may only be exercised taking into account the
circumstances of the act. As has been stated, the additional penalties consist
of degrees and extend over a considerable period of time, and it would not be
possible to determine in each case the specific penalty that should be imposed
unless the circumstances of the act were considered, because otherwise there
would be no basis for the use of this discretion. In such case the penalty would
necessarily be arbitrary. No circumstance extraneous to the last crime could be
allowed to guide the use of this discretion. Now, all the circumstances
connected with the act must already have been considered in imposing the
principal penalty: those modifying the criminal liability, in applying the
penalty in the corresponding degree, and those which are not modifying, but in
some way indicating the greater or lesser perversity of the culprit, to impose a
greater or lesser penalty within the corresponding degree. If such circumstances
could not be taken into account because they had already been considered in
fixing the principal penalty, the reasonable use of the discretion in imposing
the additional penalty would be impracticable.

Villamor, J.:

I concur in the opinion of Chief Justice Avanceña.