THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE VS. ELPIDIO BAWASANTA Y DESERTO (ALIAS ELPIDIO BAUASANTA Y DISIERTO), DEFENDANT AND APPELLANT.

The appellant was charged with the crime of
theft in the municipal court of the City of Manila. He pleaded not
guilty, and after trial, was sentenced to one month and one day of
imprisonment, to the additional penalty of four years, two months, and
one day of imprisonment, and to indemnify the offended party in the sum
of P13, with subsidiary imprisonment in case of insolvency. The
information filed against him reads:

“That on or about the 26th day of November,
1936, in the City of Manila, Philippine Islands, the said accused
conspiring and confederating together and helping each other did then
and there willfully, unlawfully, and” feloniously, with the intent of
gain and without the consent of the owner thereof take, steal, and
carry away the following personal property belonging to Andres Zavalla,
to wit:

“One black leather pocket book, two folds, rather
new, valued at P5 containing P8 cash consisting of one P5 bill and 3-P1
bills—P8 and the other personal papers, to the damage and prejudice of
the said owner in the total sum of P13.

“That the said accused Elpidio Bawasanta y Deserto (alias Elpidio Bauasanta y Disierto), is a habitual delinquent
within the purview of rule 5, article 62, Revised Penal Code, with the
following record: on August 29, 1935, he committed the crime of theft,
on February 8, 1936, he was convicted of that count by final judgment
of the Court of First Instance of Manila to serve 2 months and 1 day of
imprisonment and to pay P6 indemnity; and on December 5, 1935, he
committed another crime of theft and on April 20, 1936, he was
convicted by final judgment of the municipal court of Manila to serve 1
month and 1 day of imprisonment and to pay P11.70 indemnity, the date
of his last release being May 19, 1936.”

The defendant appealed to the Court of First Instance of Manila, where
he voluntarily pleaded guilty, and was there sentenced to one month and
one day of arresto mayor, to the additional penalty of four years, two months, and one day of prision correctional, as a habitual delinquent,
to indemnify the offended party in the sum of P13, with subsidiary
imprisonment in case of insolvency, an$ to pay the costs. The defendant
again appealed from this judgment.

I. On this appeal the defendant questions the imposition of the
additional penalty only. He contends that it should be eliminated
because under the allegations of the information his two previous
convictions should be considered as only one, inasmuch as between the
commission of the first and that of the second, less than four months
had elapsed, and moreover, the second offense was committed before his
conviction of the first. In support of his contention he cites the
doctrines laid down in People vs. Santiago (55 Phil., 266), and People vs.
Ventura (56 Phil., 1). In this the Solicitor-General concurs in his
brief and recommends that the additional penalty be eliminated
entirely. It is held that the contention of the defense is well-founded
and finds support in the cited cases.

II. The Solicitor-General contends that in fixing the penalty for
the crime last committed, the aggravating circumstance of recidivism
should be taken into account under article 14, No. 9, of the Revised
Penal Code, and that the same should not be offset by the mitigating
circumstance of plea of guilty because the latter does not exist under
article 13, No. 7, of the said Code. The defense contends that the
mitigating circumstance exists because the defendant voluntarily
pleaded guilty when the case was heard in the Court of First Instance
of Manila on appeal. Article 13, No. 7, of the Revised Penal Code which
takes into account the mitigating circumstance of voluntary plea of
guilty requires that the plea be made in court before the presentation
of the evidence for the prosecution. The facts disclose that the
defendant voluntarily pleaded guilty on appeal to the Court of First
Instance of Manila, after entering the plea of “not guilty” in the
municipal court and after the prosecution has presented its evidence,
wherefore, it is held that the mitigating circumstance aforesaid does
not exist and cannot be properly taken into account in favor of the
defendant.

III. In reaching the foregoing conclusion, we have not overlooked
the circumstance that in the Court of First Instance of Manila the case
was tried anew, and as new trial was held under section 2473 of the
Revised Administrative Code, from which it may be argued that the
accused voluntarily pleaded guilty before the prosecution presented its
evidence. It must be borne in mind, however, that a trial de novo
means a new trial in the same manner, with the same effect, and upon
the same issues as the case was tried in the lower court, in accordance
with the rules of practice in the appellate court (Sandlin vs. State [1910], 3 Okla. Cr., 578; State vs. Fort [1909], 164 Ala., 578; Crisostomo vs.
Director of Prisons, 41 Phil., 368), and does not mean that all the
proceedings in the lower court have thereby been wiped out so as to
preclude the ascertainment of whether the defendant voluntarily pleaded
guilty in the lower court for the purposes of determining the existence
of this mitigating circumstance.

IV. The offense committed by the defendant is penalized hy article 309, No. 5, of the Revised Penal Code, with arresto mayor
in all its period, and in the absence of any mitigating circumstance to
offset the aggravating circumstance of recidivism, the penalty should
be imposed in the maximum period, that is, from four months and one day
to six months.

In view of the foregoing, the appealed judgment is modified, the
defendant and appellant is found guilty of theft described in the
information, with the aggravating circumstance of recidivism, and he is
sentenced to four months and one day of arresto mayor, with
the accessories of the law, to indemnify the offended party in the sum
of P13, with subsidiary imprisonment in case of insolvency, and to pay
the costs of both instances. So ordered.

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

ABAD SANTOS, J., dissenting in part:

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.

The fact that he went to trial in the municipal court upon a plea
of not guilty should have no influence upon the trial had in the Court
of First Instance, The law expressly provides that the perfection of an
appeal to the Court of First Instance shall operate to vacate the
judgment of the municipal court, and the action, when duly entered in
the Court of First Instance, shall stand for trial de novo
upon its merits in accordance with the regular procedure in that court,
as though the same had never been tried and had been originally there
commenced. (Admin. Code, sec. 2473.)

It has been said that a trial de novo means a trial anew of the entire case, as if no action had been instituted in the justice’s court. (Peters vs.
Holder, 40 Okla., 93; 136 Pac, 400.) Nothing can be clearer than that
if the present action were originally commenced in the Court of First
Instance, the plea of guilty entered by the appellant would constitute
a mitigating circumstance.