THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. PEDRO JAVIER Y RIVERO (ALIAS PEDRO RIVERO), DEFENDANT AND APPELLANT.

The accused Pedro Javier y Rivero (alias
Pedro Rivero) appeals to this court from the judgment of the Court of
First Instance of Manila finding him guilty, by confession, of the
crime of theft, sentencing him to the penalty of one month and one day
of arresto mayor and imposing upon him, as a habifual delinquent, the additional penalty of ten years and 1 day of prision mayor, with costs, by virtue of the following information:

“That on or about the 15th day of January, 1937, in the City of
Manila, Philippine Islands, the said accused Pedro Javier y Rivero
(alias Pedro Rivero) did then and there wilfully, unlawfully, and
feloniously, with intent of gain and without the consent of the owner
thereof take, steal, and carry away part of the harness valued at ten
pesos (?10), belonging to Teodoro Gatmaitan, to the damage and
prejudice of the said owner in the aforementioned amount of P10,
Philippine currency.

“That the said accused is a habitual delinquent, having already
been convicted five times by final judgments rendered by a competent
court, as follows:

Crime	Date of Commission	Date of Release
Theft ………………………….	April 22, 1929…………………….	May 22, 1929
Estafa ……………………….	March 17, 1933……………………	May 12, 1933
Theft………………………….	March 14, 1935……………	……………………………
Theft………………………….	March 14, 1935…………………	Aug. 21, 1935
Estafa………………………..	……………………………………………….	Nov. 19, 1935
Theft………………………….	Nov. 20, 1935 ……………………..	Jan. 16, 1936″

While the accused-appellant makes no assignment of error, it is
inferred from the body of his brief that he raises as first question of
law the fact that the record of arraignment made by the deputy clerk of
the Court of First Instance of Manila does not affirmatively show that
the accused has been informed of his right to be defended by counsel at
every stage of the proceedings; that he has been provided with counsel,
and that a copy of the information or complaint has been delivered to
him in accordance with the provisions of section 15, subsection 1, in
connection with sections 17 and 18, of General Orders, No. 58.

The record shows that on January 23, 1937, the Honorable Judge,
presiding over Branch IV of the Court of First Instance of Manila,
assigned Attorney Jorge B. Delgado as counsel de oficio to
defend the herein accused-appellant. It is true that in said record of
arraignment made by the deputy clerk of the Court of First Instance of
Manila, Macario M. Ofilada, there appears only the following: “There
being present in open court Mr. Juan h. Diaz, Prosecuting Attorney of
the City of Manila, and the accused in this cause, named Pedro Javier y
Rivero (alias Pedro Rivero) accompanied by his counsel,
Mr………………… ………………………. and after having
been informed of the nature and cause of the accusation filed against
him in this court for the crime of theft and the complaint having been
read to him and a copy thereof delivered to him including a list of the
witnesses, said; accused pleaded guilty of the crime as charged in this
complaint.”

In the case of People vs. Lim Tiam (G. R. No. 44936, promulgated on October 31, 1936), this court, through the Chief Justice thereof, stated as follows:

“This court has repeatedly held in numerous decisions that failure
to state in the record that an accused has been informed of these
rights, does not warrant reversal of the judgment if it does not
affirmatively appear that he has not been informed thereof (U, S. vs. Gimeno, 1 Phil., 236; U. S. vs. Palisoc, 4 Phil., 207; XI. S. vs. Go-Leng, 21 Phil, 426; U. S. vs. Ramirez and Seradoy, 26 Phil, 616; U. S. vs. Labial and Abuso, 27 Phil., 82; U, S. vs. Custan, 28 Phil., 19; V. S. vs. Kilayeo, 31 Phil., 371; V. S. vs. Escalante, 36 Phil., 743; People vs. Abuyen, 52 Phil., 722; People vs. Del Rosario, G. R. No. 44239). This doctrine is based upon the presumption that official duty has been regularly performed.”

See also People vs. Del Rosario (G. R. No. 44239, 62 Phil, 975).

There being no affirmative showing that the accused appeared for
arraignment unaccompanied by said attorney assigned to defend him de oficio,
and it being the official duty of the judge before whom said accused
appeared to provide him with such counsel if he so desired and was
unable to employ one, it is presumed that the judge in question
complied with his official duty (section 334, No. 14, Code of Civil
Procedure).

The allegation in the attorney de oficio’s brief that no
copy of the information was delivered to the accused after it had been
read to him, is not true because the above-quoted record of arraignment
states: “* * * and the complaint having been read to him and a copy
thereof delivered to him including a list of the witnesses, said
accused pleaded guilty * * *.”

Notwithstanding the conclusion arrived at by this court that failure
to clearly and affirmatively state, in the record of arraignment
prepared by the deputy clerk of the Court of First Instance of Manila,
that the accused appeared represented by the attorney de oficio
assigned by the court to defend him and that a copy of the information
was delivered to him, is not conclusive evidence that said accused had
been deprived of his said rights, the admonition given by this court in
the cases of United States vs. Labial and Abuso (27 Phil., 82), United States vs. Custan (28 Phil., 19), and People vs. Lim Tiam, supra,
to the effect that all the necessary details required in sections 17
and 18 of General Orders, No. 58 be made to appear in the record of
arraignment of the accused, is more emphatically repeated herein.

Although appellant’s counsel de oficio does not question
the penalty imposed in the appealed judgment, as this court, in
reviewing a criminal case on appeal before it, has to examine all the
questions of law involved therein, it finds that the penalty of one
month and one day of arresto mayor imposed in the judgment is
not in accordance with law on the ground that the presence of the
aggravating circumstance of recidivism has not been taken into
consideration. Said aggravating circumstance has not been offset by the
plea of guilty entered by the accused in the Court of First Instance on
appeal because the plea of guilty made when the case is on appeal does
not constitute the mitigating circumstance established in article 13,
No. 7, of the Revised Penal Code, which requires that such plea of
guilty, to constitute a mitigating circumstance, must be made before
the presentation of the evidence for the prosecution in the competent
court of origin (People vs. Bawasanta, p. 409 ante).
Undoubtedly, the legislator’s purpose in establishing such mitigating
circumstance was to encourage repentance, which not only ennobles the
soul and tends to avoid recidivism but also saves the Government the
expenses of a trial and the judicial and executive officials much
trouble. Taking into consideration the aggravating circumstance of
recidivism evidenced by the various convictions of the crimes of theft
and estafa stated in the information, without any mitigating circumstance to offset it, the penalty of arresto mayor
to its full extent prescribed by article 309, subsection 5, for persons
guilty of theft where the value of the property stolen is over P5 but
does not exceed P50, should be imposed in its maximum period, that is,
from four months and one day to six months of arresto mayor. The additional penalty of ten years and one day of prision mayor
imposed in the judgment, for considering the accused-appellant a
habitual delinquent, is correct, as the herein accused-appellant cannot
be considered a recidivist for more than five times because the crime
with which he is charged herein is the fifth. As the date of the
commission of the crime of estafa the term for which he
finished serving on November 19, 1935, does not appear, there is no way
of determining whether said crime was not committed prior to his
conviction of the crime of theft committed by him on March 14, 1935,
the term for which he finished serving on August 21, 1935. According to
article 62, subsection 5, paragraph (c), of the Revised Penal Code, the
culprit, upon a fifth or additional conviction, shall be sentenced to
the additional penalty of prision mayor in its maximum period to
recliuson temporal in its minimum period, that is, from ten years
and one day to fourteen years and eight months. Therefore, the
additional penalty of ten years and one day imposed by the lower court
is in accordance with law.

Wherefore, with the sole modification that the accused-appellant is
sentenced to the principal penalty of four months and one day of arresto mayor, the appealed judgment is affirmed in all other respects, with costs to the appellant. So ordered.

Avancena, C. J., Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.