BONIFACIO MOLESA, PETITIONER AND APPELLANT, VS. THE DIRECTOR OF PRISONS, RESPONDENT AND APPELLEE.

This is an appeal from an order of the
Court of First Instance of Manila, denying a petition for a writ of
habeas corpus filed by the appellant.

The record shows that the appellant, upon his plea of guilty, was
convicted by the Court of First Instance of Iloilo of the crime of
rape, and sentenced to suffer twelve years and one day of reclusion temporal.
After serving about seven years of his sentence, he filed in the Court
of First Instance of Manila a petition for a writ of habeas corpus. The
petition was based on the theory that the penalty originally imposed
upon the petitioner should be reduced by reason of the presence of two
mitigating circumstances, namely, lack of instruction and plea of
guilty. The Director of Prisons opposed the petition on the following
grounds:

“(1) The defendant is a habitual delinquent as
shown by his commitment papers attached to the record of this case, and
therefore not entitled to the benefits of the Revised Penal Code.

“(2) The alleged lack of instruction relied upon by the petitioner,
could not have been taken into account by the trial court in imposing
upon him the minimum period of the prescribed penalty, inasmuch as it
is not a mitigating circumstance in cases of rape.”

After due hearing, the lower court denied the petition with costs.

The contention that the appellant is not entitled to the benefits
of the Revised Penal Code because he is a habitual delinquent, is
absolutely without merit. Under existing law habitual delinquency
exists only with regard to the crimes of robo, hurto, estafa, or falsification. (Article 62, subsection 5 [c],
of the Revised Penal Code.) As the appellant is now serving sentence
for the crime of rape, he can not be deemed a habitual criminal within
the purview of article 22 of the Revised Penal Code.

The decision of the Court of First Instance of Iloilo fails to show
why the court imposed the penalty prescribed by law for the crime of
rape in its minimum degree. Appellant, however, takes for granted that
in the imposition of the penalty, the trial court took into
consideration the mitigating circumstance of lack of instruction. This
assumption is, in our opinion, unjustified. This court has held that
the mitigating circumstance of lack of instruction should not be taken
into consideration in connection with the crime of rape. “It has been
held in numerous decisions that article 11 of the Penal Code should not
be applied, as an attenuating circumstance, to persons charged with the
crime of rape. No one is so ignorant as not to know that the crime of
rape is wrong and in violation of the law.” (United States vs.
Gamilla, 39 Phil., 234, 235.) In the absence of an express showing to
the contrary, it will be presumed that the trial court acted in
accordance with the decisions of this court on the subject, and did
not, therefore, take into consideration the appellant’s lack of
instruction as a mitigating circumstance. Having in mind the practice
of trial courts, it is fair to assume that the Court of First Instance
of Iloilo imposed the minimum penalty on the appellant because of his
voluntary plea of guilty. It follows that the appellant had already
been given the benefits of a plea of guilty as contemplated by the
Revised Penal Code.

Appellant’s contention that the lower court erred in not computing
in his favor the time allowed for good conduct, can not now be
entertained. The question is prematurely raised. Even if the time
allowed for good conduct is taken into account, the appellant’s
sentence has not yet expired Hence he has no right to be released.

The order appealed from is, therefore, affirmed with costs against the appellant. So ordered.

Street, Vickers, Imperial, and Butte, JJ., concur.