THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. LOPE HERMINO Y LIMOSA (ALIAS LOPE GERMINO), DEFENDANT AND APPELLANT.

Lope Hermino y Limosa (alias Lope Germino)
was charged with theft and later sentenced by the Court of First
Instance of. Manila to suffer one month and one day, of arresto mayor
with the corresponding accessory penalties, to indemnify the owner of
the stolen articles in the sum of P15.17, and to suffer also the
additional penalty of six years and one day of prision mayor, being a
habitual delinquent. Not satisfied with the sentence imposed upon him,
the accused appealed therefrom and, quoting from his brief, now
contends in this instance that:

“I. The lower court erred in deciding that the defendant’s spontaneous plea of guilty has been compensated by recidivism.

“II. The lower court erred in imposing upon the defendant an additional
penalty not in accordance with the allegation of the information.”

Apropos of the first question raised by the appellant, the
Solicitor-General, in turn, raises this other one: Should the
appellant’s plea of guilty, entered in the Court of First Instance
which tried the case on appeal, be taken into consideration in his
favor, notwithstanding the fact that he had gone to trial in the
municipal court, presenting his own evidence therein after the promotor
fiscal had presented his?

This is a case of an appellant
who, after having been charged with the crime of theft by virtue of an
information filed by the office of the city fiscal of Manila in the
municipal court of said city, went to trial, thus requiring the
presentation, in an ordinary trial, of. the evidence to substantiate
his case. As a result, judgment was rendered against him, having been
found guilty of theft by said court. From said judgment, he appealed to
the Court of First Instance of Manila which, in turn, found him guilty
of the crime with which he was charged and sentenced him to the
above-stated penalties, after having permitted him to substitute his
former plea of not guilty for that of guilty. This appeal was
interposed by him to set aside the foregoing sentence.

The information, which gave rise to the case and was the one
answered by the appellant in the Court of First Instance of Manila,
pleading guilty of the crime charged therein, reads as follows;

“That on or about the 26th day of December, 1936,
in the City of Manila, Philippine Islands, the said accused did then
and there willfully, unlawfully and feloniously, with intent of gain
and without the consent of the owner thereof, take, steal and carry
away one leather pocketbook, valued at P1 containing cash in the amount
of P14.17, belonging to Mrs. W. G. Schindler, to the damage and
prejudice of the said owner in the total sum of P15.17, Philippine
currency.

“That the said accused has previously been
convicted three times of the crime of theft by virtue of final
judgments rendered by competent courts, as follows:

Criminal case No.	Date of commission of crime	Date of conviction	Date of release	Penalty
Municipal Court H-5055	Jan. 20, 1934	Jan. 20, 1934	Apr. 7, 1934	2 months, 1 day
Court of First In stance of Manila D-52639	June 28, 1936	July 3, 1936	Oct. 1936	4 months, 1 day
Municipal Court H-56458	June 29, 1936	July 6, 1936	Dec. 20, 1936	2 months, 1 day

and is therefore a habitual delinquent under the provisions of
article 62, paragraph 5, of the Revised Penal Code, the date of his
release from confinement in connection with his last offense being
December 20, 1936.”

It will be seen that, although the information in question contains
no express allegation that the appellant is a recidivist, it states in
the second paragraph thereof (a) that he was convicted once of the
crime of theft on January 20, 1934, and sentenced therefor on said date
to two months and one day of arresto mayor; that he
extinguished said penalty on April 7, 1934; and (6) that he was
likewise convicted of other(two crimes of theft on July 3 and 6, 1936,
respectively, long after he had served his first sentence; that in said
two cases he was sentenced to the penalties of four months and one day
and two months and one day of arresto mayor, respectively;
that he extinguished his two sentences on December 20, 1936. This fact
is, in itself, equivalent to an allegation that the appellant is a
recidivist, as no other thing can be inferred from said allegations
than that he had been previously convicted by final judgment of crimes
embraced in the same title of the Revised Penal Code. But, of how many
crimes was he convicted by final judgment for the purposes of rule 5 of
article 62 of the Revised Penal Code, which treats of habitual
delinquency?

It should be noted that between the appellant’s commission of one
and his commission of the other of his last two crimes, and between his
prosecution for the former and his prosecution for the latter, hardly
one day had elapsed in the first and three days in the last case. This
shows that when he was prosecuted for his last crime, the judgment
rendered in the case instituted against him for his next preceding
crime had not yet become final and this is so because judgments do not
become final, until after the expiration of the period of fifteen days
allowed the accused to interpose an appeal. Under the law, there can be
no recidivism except when the accused, at the time of his trial for one
crime, shall have been previously convicted by final judgment of
another crime embraced in the same title of the Code (art. 14, subsec.
9, of the Revised Penal Code). Consequently, the answer to the question
is that when the appellant committed his last crime, he was a
recidivist only for the third time.

As to the question whether or not the appellant’s plea of guilty,
entered in the Court of First Instance of Manila, should be compensated
by the aggravating circumstance of recidivism, which this court
declares to have been proven, it should be borne in mind that the
spirit of the law is what may reasonably be inferred from the terms
thereof. The seventh mitigating circumstance reads:

“That the offender had voluntarily surrendered himself to a person
in authority or his agents, or that he had voluntarily confessed his
guilt before the court prior to the presentation of the evidence for
the prosecution.”

In the case under consideration, the appellant confessed his crime
after the prosecution had presented its evidence, at least in the
municipal court where the case originated. It cannot be stated that the
appeal taken by him to the Court of First Instance again restored the
case to its original state for the very reason that the law requires a
trial de novo, that is, that there had been no presentation of evidence before he confessed or admitted his crime, because a trial de novo
gives the impression and necessarily implies the existence of a
previous trial. On the other hand, the terms of the law expressly
require that the confession, in order to constitute a mitigating
circumstance, must not only be spontaneous but also be made prior to
the presentation of the evidence for the prosecution (art. 13, subsec.
7, Revised Penal Code).

As this court stated in the case of People vs. De la Cruz
(63 Phil., 874), the reason for the existence of said mitigating
circumstance is that it reveals to a certain extent an act of
repentance, a moral disposition favorable to his reform and submission
to the law. This reason cannot be said to exist in the appellant’s case
because he wished neither to acknowledge his crime nor to repent when
his first opportunity came, that is, during the trial granted him in
the municipal court. Consequently, after eliminating the mitigating
circumstance of confession of guilt, the aggravating circumstance of
recidivism remains uncompensated and, under the circumstances, the
penalty that should be imposed upon him is arresto mayor in
its maximum period, or from four months and one day to six months
(arts. 308 sand 309, subsec. 5, in connection with art. 64, rule 3, of
the Revised Penal Code).

Following the doctrine laid down in the cases of People vs. Santiago (55 Phil., 266); People vs. De la Rama (G, R. No. 43744, 62 Phil., 972); People vs. Venus (63 Phil., 435); and People vs.
Tapel (63 Phil., 464), the appellant cannot be a habitual delinquent by
reason of his having been a recidivist for the fourth time, but only
for the third time, and deserves, therefore, the least additional
penalty prescribed in article 62, subsection 5, paragraph (a), or prision correctional in its medium and maximum periods.

For the foregoing reasons, the appealed judgment is modified by sentencing the appellant to four months and one day of arresto mayor,
plus the additional penalty of two years, four months and one day,
affirming it in all other respects, with the costs to the appellant. So
ordered.

Avancena, C. J., Villa-Real, Imperial, Laurel, and Concepcion, JJ., concur.

ABAD SANTOS, J., dissenting in part:

For the reasons stated in my dissenting opinion in People vs.
Bawasanta (G. R. No. 45467, June 30, 1937, p. 413 post), I am of the
opinion that the appellant is entitled to have considered in his favor
the mitigating circumstance of having pleaded guilty in the Court of
First Instance.