THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. LEON MALLARI Y LAGMAN AND LAO YU, DEFENDANTS AND APPELLANTS.

The herein defendants Leon Mallari y Lagman
and La Yu appealed from the judgment sentencing them respectively to
the penalties of six years, ten months and one day of prision mayor and three years, eight months and one day of prision correccional, with
the corresponding accessory penalties and the costs, on the ground that
said judgment was not in accordance with the law. In their brief, they
contend that the trial court committed the four alleged errors
enumerated therein.

All the questions raised by said appellants in their assignment
of errors alleged to have been committed by the trial court are purely
questions of fact. After carefully reviewing the evidence of record,
this court is fully convinced that the facts are as stated in the
opinion of the trial court, to wit:

The appellants herein invited Ellizar Dimson to accompany them to a
certain Japanese hospital, the appellant Lao Yu promising to give a tip
of one peso to both Dimson and the appellant Mallari, whom he pretended
to have met by chance at Dasmarinas Street in the City of Manila. Said
appellants, simulating not to know each other, engaged said Dimson in
conversation and brought him to Intramuros by way of Victoria Street.
Upon arriving at the yard of the school building situated on said
street, the appellant Lao Yu requested appellant Majlari to change a
10-peso bill, which he carried, for the purpose of giving them the tips
he had promised. Under the pretext that he had no money with him,
Mallari tried to pass the bill to Dimson, asking him to change it, but
Dimson answered that he did not have enough money to make the change.
In order to convince the appellants that he really did not have enough
money, Dimson took his wallet from his pocket to show them its
contents, whereupon Mallari immediately grabbed Dimson by both hands
and wrested the wallet from him, emptying the contents thereof, which
amounted to ?1.50, into his hand. After taking Dimson’s money, Mallari
ran away and in order to prevent Dimson from making any noise or
calling the attention of the neighborhood to the incident, the
appellant Lao Yu threatened to strike him if he made any outcry. Saying
this, he ran away and followed the appellant Mallari, who had already
gone some distance. Then Ellizar Dimson, with the help of a street-car
inspector and policeman Bartolome Rulloda, who happened to be passing,
pursued the appellants. The latter, upon seeing that their attempt at
escape was futile, stopped. Mallari went to meet policeman Rulloda to
ask him what happened while the appellant Lao Yu hid on the ground
floor of the house at number 96 San Juan de Letran Street. In answer to
Mallards question, policeman Rulloda asked him why they robbed Dimson
of his money. Mallari answered asking his pardon. When asked where the
money was, Mallari replied that Lao Yu, his co-appellant, had it. After
Lao Yu’s capture in the said house, he was required to return the money
to Dimson and he delivered to policeman Rulloda the exact “sum of P1.50
which had been taken from the former.

The evidence shows that the appellant Leon Mallari is not a
habitual delinquent but merely a recidivist, having been convicted of
the crime of robbery by the Court of First Instance of Manila in
criminal case No. 24027 of said court on May 15, 1922.

The Attorney-General contends that Lao Yu is likewise a recidivist
but the evidence in support of his contention merely consists in the
appellant’s testimony that in 1927 he had been sent to the Boys’
Training School for theft. This admission does not constitute
sufficient evidence of recidivism on the ground that his having been
sent to the said training school necessarily implies that although he
had been accused of said offense no judgment of conviction had been
rendered against him. And this is so, because under Act No. 3203, which
was approved on December 3, 1924, and in force in 1927,—the same having
been amended by Act No. 3559 only on November 26, 1929, and by article
80 of the Revised Penal Code on January 1, 1932,—only minors under 18
years of age, who were accused of an offense not punishable by reclusion perpetua or
death, were sent to the institution specified therein or to the Boys’
Training School of the City of Manila. Said Act provided that in such
cases, instead of rendering judgment of conviction against them, the
court should order the suspension of all further proceedings and commit
such minors to any of the aforesaid institutions. The pertinent
provisions of said Act, as stated in sections 3 and 7 thereof, read as
follows:

“SEC. 3. Whenever any boy or girl less than
eighteen years of age shall be accused in any court of an offense not
punishable by life imprisonment or death, the court, before passing
sentence of conviction, shall suspend all further proceedings in the
case and shall commit such minor to the custody of any of the
institutions mentioned in sections one and two of this Act, until said
minor shall have reached his majority or for such less period as to the
court may seem proper, subject to the conditions provided in section
seven hereof, or may allow him to remain and be cared for elsewhere,
under probation and subject to visitation and supervision of a
probation officer, as hereinafter provided, whom the court may require
to report from time to time on the case: * * *.”

“SEC. 7.
Any minor delinquent committed to an institution in accordance with
sections three and five of this Act or allowed to stay elsewhere, may
be paroled by the head of the institution, under such conditions as the
latter may prescribe subject to the approval of the Public Welfare
Commissioner, or may be returned to the court for either sentence or
dismissal. The probation period of the minor allowed to stay at a place
other than the institutions mentioned in sections one and two of this
Act shall rest with the probation officer and at its termination he shall return such minor to the court for either sentence or dismissal.”

Such is exactly the provision of the penultimate paragraph of article 80 of the Revised Penal Code, which reads as follows:

“In case the minor fails to behave properly or to
comply with the regulations of the institution to which he has been
committed or with the conditions imposed upon him when he was committed
to the care of a responsible person, or in case he should be found
incorrigible or his continued stay in such institution should be
inadvisable, he shall be returned to the court in order that the same
may render the judgment corresponding to the crime committed by him.”

The evidence does not show whether or not the appellant Lao Yu was
convicted under section 7 aforecited. It cannot be presumed that he
was, for the reason that the circumstance of recidivism, like any other
circumstance or fact which may alter the degree of liability of an
accused or affect him in one way or another, should be proven as
satisfactorily as the crime itself with which he is charged. It is
obvious, therefore, that Lao Yu is not a recidivist.

There is no question that the act of the appellants constitutes the
crime of robbery as defined and penalized in article 294, subsection
(5) of the Revised Penal Code. The aggravating circumstances of
recidivism and craft should be taken into consideration in the case of
the appellant Leon Mallari, and that of craft alone in the case of the
appellant Lao Yu. Therefore, the judgment appealed from is in
accordance with the law in so far as it affects the appellant Leon
Mallari. With respect to the appellant Lao Yu, however, it should be
modified by imposing upon him the same penalty as that imposed upon the
former on the ground that the aggravating circumstance of craft, which
was taken into consideration against him, is not compensated by any
mitigating circumstance.

Now then, in applying the provisions of Act No. 4103 to this
particular case of the appellants, as required by sections 1 and 2
thereof, what minimum of the aforesaid penalty should be imposed?
Should such minimum necessarily be taken from the penalty of arresto mayor
merely because, according: to rule 4 of article 61 of the Revised Penal
Code, said penalty is the next lower to the minimum of the penalty
prescribed for the offense committed by said appellants, to wit: prision correccional to prision mayor in its medium period, that is, from six months and one day to ten years?

In the judgment rendered by this court in the case of People vs.
Ducosin, for frustrated murder (59 Phil., 109), this question appears
to have been decided in the affirmative. In fact, it was said therein
that inasmuch as the penalty imposed upon Ducosin was ten years and one
day of prision mayor, which is the minimum of the penalty
prescribed for said crime, which penalty extends from ten years and one
day to seventeen years and four months, the penalty next lower in
degree is prisi&n correctional in its maximum degree to prisi&n
mayor in its medium degree, that is, four years, two months and one day
to ten years; and that “it is in the discretion of the court to fix the
time of imprisonment within the said range without reference to the
technical subdivisions of maximum degree, medium degree and minimum
degree, and in this particular the courts are vested as stated with a
wider discretion than they ever had before.” Under the said ruling, the
minimum degree of said penalty imposed upon Ducosin was fixed at seven
years, which period is really within the range of said next lower
penalty.

It is to be noted, however, that in said case it has not been
stated in unequivocal and express terms that the minimum of the penalty
to be imposed upon an accused should necessarily and invariably be
fixed within the range of the penalty next lower in degree as
determined in conformity with said rule 4 of article 61 of the Revised
Penal Code. Such ruling could not have been sustained then nor can it
be sustained now on the ground that to do so would amount to annulling
or denying to the courts the discretion granted them by Act No. 4103,
which discretion is necessarily inferred from the text thereof which
reads as follows’:

“* * * the court shall sentence the accused to such
maximum as may, in view of attending circumstances, be properly imposed
under the present rules of the said Code, and to a minimum which shall
not be less than the minimum imprisonment period of the penalty next
lower to that prescribed by said Code for the offense.” (Section 1.)

If the intention of the Legislature in enacting the law in question
had been to restrict the courts in the use of their discretion by not
permitting them to fix the minimum of the penalty to be imposed except
within the range of the penalty next lower to that prescribed for the
offense, it would have so expressly stated or at least, it would have
stated that said minimum should never exceed the maximum of said next
lower penalty just as it clearly said that “it shall not be less than
the minimum imprisonment period of the penalty next lower to that
prescribed by said Code for the offense.” Inasmuch as it has not so
stated, this court cannot restrict the terms thereof, much less supply
the deficiency, which is more or less imaginary, on the ground that in
the law under consideration there is not the least indication that such
was the intention of the Legislature. On the contrary, the fact that it
has provided that the minimum of a penalty should not be less than a
certain limit specified therein is an indication that it intended to
place no other restriction than this on the exercise of such discretion
by the courts.

This court is of the opinion that the rule established by said Act
is that the courts may fix the minimum of the penalty to be imposed
upon an accused from the minimum of the penalty next lower to that
prescribed for the offense to a period which, without being the same
maximum penalty which should be imposed upon him would give the Board
of Indeterminate Sentence, created by virtue of section 3 of Act No.
4103, sufficient time to make use of the discretion granted it by
section 5 of the same Act, so that it may recommend at the proper time
the release under parole of said accused if he deserves such clemency.
Such minimum penalty should not be so short as not to give said board
or the officials concerned sufficient time to study and observe the
conduct of the accused and his progress or the changes he has undergone
during his imprisonment for the purpose of properly determining his
fitness to return to society without being a menace to the welfare
thereof. Neither should it be too long, that the penalty thus imposed
upon him would fail to serve as a deterrent to the commission of
another crime or as a lesson for his guidance thereafter. In
determining such minimum penalty, the age of the accused, his general
health and physical condition, the degree of his mentality and
morality, and his previous criminal record, if any, should necessarily
be taken into consideration.

In view of the foregoing, and taking into consideration the age of
the appellants, the nature of their offense, the criminal record of the
appellant Mallari and the means employed by both in the commission
thereof, the judgment appealed from is hereby modified by sentencing
the appellant Leon Mallari to suffer the indeterminate penalty of from
two years of prision correccional to six years, ten months and one day of prision mayor, and the appellant Lao Yu to the indeterminate penalty of one year of. prision correccional to six years, ten months and one day of prision mayor, with the proportionate costs against both. So ordered.

Street, Malcolm, Abad Santos, Hull, Vickers, and Goddard, JJ., concur.

BUTTE, J., with whom concur AVANCENA, C, J., VILLA-REAL, and IMPERIAL, JJ., dissenting:

The foregoing decision changes the rule of law laid down in the case of People vs.
Ducosin (59 Phil., 109) rendered on December 14, 1933. After an
extended consideration of the legislative history and .the objects to
be attained by the Indeterminate Sentence Law, this court by unanimous
vote declared that the minimum imprisonment period to be determined
under said Act should be placed anywhere within the range of the
penalty next lower to the maximum penalty assessed by the court in
conformity with the provisions of the Revised Penal Code. Under this
interpretation a reasonable interval between the minimum and the
maximum penalties is always assured and the defendant cannot be
deprived of the benefits of the Indeterminate Sentence Law. The
modification to the doctrine of the Ducosin case made in this case by
the majority of the court leaves it to the uncontrolled discretion of
the trial judge to put the minimum penalty in the same period and the
same degree as the maximum penalty. It is true that the majority have
inserted in their opinion words of admonition to the trial courts to
the effect that a reasonable interval should always be fixed in the
judgment and it is probable that in the great majority of cases the
result would be the same, namely, that the minimum penalty will fall
within the range of the penalty next lower to that assessed by the
court as the maximum. However, the rule laid down in the Ducosin case
which definitely assures every defendant of such a reasonable interval
seems to me more consonant with the spirit of the Indeterminate
Sentence Law and a more accurate expression of the intention of the
Legislature as disclosed by the legislative history of the Act.