THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIIF AND APPELLEE, VS. JOSE NAVALES Y CALALANG (ALIAS JOSE N. CRUZ), DEFENDANT AND APPELLANT.

In this appeal, the appellant contends that
it is discretionary on the part of this court to impose or not the
additional penalty prescribed in article 62 of the Revised Penal Code
upon a habitual delinquent.

From the evidence of record and the confession of guilt of the
appellant, it appears that on August 11, 1933, he took a piece of ham
valued at P3.20 in the Quinta Market of the City of Manila, without the
knowledge and consent of Ong Siong, the owner thereof; that said
appellant had already been convicted once of estafa and four
times of theft; and that he finished serving his last sentence only on
March 14, 1931, that is, scarcely two years and five months before the
commission of the offense of which he pleaded guilty.

The appellant’s contention is erroneous in view of the express and
unequivocal provisions of said article 62 of the aforesaid Code. Said
provisions enjoin that in all cases the habitual delinquent should be
punished not only with the penalty prescribed for the offense of which
he was last found guilty but also with the additional penalty
prescribed therein, which penalty varies according to the circumstances
and the number of times said delinquent has been convicted of any of
the offenses therein enumerated. The only discretionary power granted
by the law to the courts is to fix said additional penalty within the
limits specified in the aforesaid article, taking into consideration
all the facts and circumstances of each case. (People vs. Tanyaquin, 57 Phil., 426; and People vs. Chua Buan, p. 106, ante,)

According to paragraph (c) of rule 5 of said article 62 of the
Revised Penal Code, the additional penalty which should be imposed upon
the appellant, taking into consideration the fact that he is a
recidivist for the sixth time and that he is furthermore a habitual
delinquent, is prision mayor in its maximum period to reclusion temporal in its minimum period, that is, from ten years and one day of prision mayor to fourteen years and eight months of reclusion temporal.

Wherefore, taking into consideration the fact that the aggravating
circumstance of recidivism, which was present in the commission of the
crime of which the appellant has pleaded guilty, is compensated by the
mitigating circumstance of a voluntary confession of guilt, the
judgment appealed from should be as it is hereby modified, sentencing
said appellant to two months and one day of arresto mayor
with the corresponding accessory penalties (article 309, 6th case of
the Revised Penal Code), instead of one month and one day of said,
penalty, and being a habitual delinquent, to suffer the additional
penalty of ten years and one day of prision mayor and to pay the costs. So ordered.

Street, Abad Santos, Imperial, and Butte, JJ., concur.