THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. SEGUNDINO HALOOT, DEFENDANT AND APPELLANT.

“That on or about the 16th day of January, 1937, in
the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously, with intent of gain and without
the consent of the owner thereof, enter and penetrate into the house
located at No. 901 A. Mabini St., in the said city, occupied and
inhabited by one J. H. Forest, through a window, an opening not
intended for entrance or egress, by breaking the wire nettings of the
same, and once inside said premises, took, stole and carried away
therefrom the following personal properties of the said J. H. Forest:

to the damage and prejudice of the said J. H. Forest in the total amount of P70, Philippine currency.

“That the said accused is thrice a recidivist under
the provisions of the Revised Penal Code, he having been previously
convicted by virtue of final judgments rendered by competent courts, as
follows:

The facts charged constitute the crime of robbery defined and
punished in paragraph (a), subsection 1, in connection with the next to
the last paragraph of article 299 of the Revised Penal Code, committed
without arms, the value of the property taken not exceeding P250. The
penalty prescribed for the crime is the minimum period of prision correccional in its medium period to prision mayor in its minimum period, that is, prision correccional
in its medium period. Inasmuch as the aggravating circumstance of
recidivism was present in the commission of the crime and is
compensated by the plea of guilty, the said penalty should be imposed
in its medium period, that is, from two years, eleven months and eleven
days to three years, six months and twenty days of prision correccional
The Indeterminate Sentence Law, Act No. 4103, being applicable, a
minimum of the penalty to be imposed should be fixed within the penalty
next lower in degree.

There are different opinions as to which is the penalty next lower
to that consisting in only one period of a divisible penalty. Article
61 of the Revised Penal Code (art. 75 of the former Penal Code)
prescribes five rules for determining in various cases which is the
penalty next lower to another. In rule 4 thereof, it is provided that
“when the penalty prescribed for the crime is composed of several
periods, corresponding to different divisible penalties, the penalty
next lower in degree shall be composed of the period immediately
following the minimum prescribed and of the two next following, which
shall be taken from the penalty prescribed, if possible; otherwise,
from the penalty immediately following in the abovementioned scale.”
However, the case in which the penalty prescribed consists in only one
period of a divisible penalty has not been provided for. But rule 5
thereof provides that when the law prescribes a penalty for a crime in
some manner not specially provided for in the four preceding rules, the
courts shall proceed by analogy.

In the case of People vs. Co Pao (58 Phil., 545), this
court decided this question in the sense that the penalty next lower in
degree consists in the period next following within the same penalty,
if any, otherwise within the penalty following in the scale prescribed
in article 70, in accordance with the decision of the Supreme Court of
Spain of June 13, 1872. This interpretation has been adopted, among
other reasons stated in the decision, because it is inferred from
articles 166 and 168 applied in said case that when the penalty
consists in a period of a divisible penalty, there follow in gravity,
in their corresponding order, the next periods of the same penalty and
those of the following penalties, according to the scale prescribed in
article 70. Furthermore, the penalty next lower than another should
begin where the latter ends because, otherwise, if it were to skip over
intermediate ones, it would be lower but not next lower in degree. And
by analogy, it should consist in only one period, in the same manner as
when the penalty prescribed consists of two periods, in which case the
next lower penalty also consists of two periods, beginning with the
period next following the minimum of the prescribed penalty, within the
same penalty, if any, otherwise, within the penalty immediately
following in the scale.

Referring to the decisions of the Supreme Court of Spain on the question, this court, in the above-cited case of People vs. Co Pao, said:

“In the first decision rendered on the subject (June 13, 1872) of the Supreme Court of Spain it was held:

” ‘1st. That pursuant to the provisions of article 521 of the Penal
Code in force, robbery in an inhabited place, committed without arms,
when the value of the property taken does not exceed 500 pesetas, is punished with the medium degree of presidio correecional;
and that when this offense is frustrated, the corresponding penalty is
the next lower in degree, in accordance with article 66 of said Code;
and

” ‘2d. That if the facts stated in the decision and
established by the evidence show that the accused is the author of a
frustrated robbery involving less than 500 pesetas, committed
without arms and without any aggravating or mitigating circumstances,
the trial court in imposing the penalty of 14 months of presidio correccional,
acts in accordance with the provision of said Code; because, inasmuch
as it prescribes as a penalty for the consummated crime only the medium
degree of said presidio correccional, and the penalty for frustrated robbery being the next lower in degree this penalty must be the minimum degree of presidio correccional,
and not the penalty composed by this and the two other degrees of the
next lower penalty, because this combination must be adopted when the
penalty prescribed for the offense is composed of various degrees as
provided in article 76, Rule 4, of said Code, and not when composed of
only one degree as in the present case.’

“However, in the
subsequent decision of December 20, 1872 (as well as in the decisions
of July 5,1872, September 26, 1872, and October 15, 1872) it was held:

” ‘1st, That article 521 of the Penal Code in force punishes
consummated robbery, committed with arms, when the amount involved is
less than 500 pesetas, with presidio correccional in its medium degree to presidio mayor in its minimum degree;

” ‘2d, That the penalty next lower in degree to that imposed by law for
consummated crime is prescribed, under article 66, when the crime is
frustrated, which in the present case is arresto mayor in its medium degree to presidio correccional in its minimum degree;

” ‘3d. That inasmuch as the accused carried no arms for the
perpetration of said frustrated robbery, and the value of the property
taken does not exceed 500 pesetas, his penalty should be
limited to the minimum degree resulting from the graduation of the
penalty, because otherwise a difference would arise, to the prejudice
of the author of the frustrated crime, should the law adopt it for
consummated offense in the latter part of said article 521; and

“‘4th. That the trial court, in applying this rule and in imposing upon the accused four months of arresto for such crime, committed no error or violation of law to justify a reversal.’

“As may be seen, the difference between the decision of June 13, 1872,
and those rendered thereafter consists in that in the former the
penalty was first reduced to its minimum degree, and then the penalty
immediately inferior to it was imposed, whereas in the other decisions
the penalty immediately inferior in degree was determined and then
imposed in its minimum degree.

‘Pursuant to the foregoing, the Supreme Court of Spain in
imposing, in its decisions subsequent to June 13, 1872, the penalty of arresto mayor in its medium degree, did so not because this penalty was the next lower than presidio correctional in its minimum degree, but because that is the minimum degree of the penalty of arresto mayor in its medium degree to presidio correccional in its minimum degree, which is the next lower penalty than presidio correccional in its medium degree to presidio mayor in its minimum degree.” (People vs. Co Pao, 58 Phil., 545, 552-554.)

The procedure followed in the decisions subsequent to that of June
13, 1872, cannot be adopted because it would be a deviation from the
spirit of our Revised Penal Code which, as already stated, is inferred
from articles 166 and 168 thereof. Furthermore, the procedure is
defective in that it considers as a penalty next lower in degree one
that is not next lower to the prescribed penalty but to another. The
prescribed penalty is the medium period of prision correccional,
a complete penalty, because it has its three periods, and the only
penalty because the limits thereof cannot be exceeded. The penalty of prision correccional in its medium period to prision mayor
in its minimum period, from which the lower penalty was reduced, is not
the prescribed penalty because it is more severe and is composed of its
own periods, two of which, the medium and maximum, cannot be applied
whatever and however numerous the aggravating circumstances present in
the crime may be.

It is true that, according to the decision of June 13, 1872, the
penalty next lower in degree, if the crime were more serious, having
been committed with arms, would be lighter. The subsequent decisions,
however, give rise to the same anomaly where the prescribed penalty,
instead of being the minimum, is the maximum of prision correccional in its medium period to prision mayor in its minimum period, that is, prision mayor
in its minimum period, for the reason that the crime was committed in
an uninhabited place and in band (art. 300, Revised Penal Code),
inasmuch as in such case the penalty next lower in degree, according to
said decisions, would be prision correccional in its minimum
period, and the same penalty, as the one next lower in degree, would be
imposed if the crime were lighter, not having been committed in an
uninhabited place and in band, if aggravating circumstances were
present without any mitigating circumstance, which anomaly would
consist in the punishment of the crime with the same penalty both when
it is more serious and when it is lighter.

There are other theories on this question, among them being
Groizard’s, which forms the penalty next lower in degree with the three
periods next following that prescribed as penalty, but this gives rise
to the same anomaly which is that the penalty next lower in degree is
the same both when the prescribed penalty is the minimum period of a
divisible penalty and when the latter is imposed in its full extent.

What all of this means is that in this matter there is a defect in legislation which is not in the courts to correct.

The court further sentenced the appellant to six years and one day of prision mayor as
a habitual delinquent, having been previously convicted thrice of the
crime of theft. It appears, however, that the three crimes of which the
appellant was previously convicted were committed on the same date.
They should not, therefore, be considered, for the purpose of
determining whether or not the appellant is a habitual delinquent, as
three convictions but as only one (People vs. De los Reyes, G. R. No. 43906, 62 Phil., 963), and as a mere aggravating circumstance of recidivism.

It being understood that the penalty imposed upon the appellant is from
six months and one day, as minimum, to two years, eleven months and
eleven days of prision correctional,
as maximum, and eliminating the additional penalty imposed by the
court, the appealed judgment is affirmed in all other respects, with
costs. So ordered.

Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.

VILLA-REAL, J., concurring in part and dissenting in part:

I regret to have to dissent from the majority opinion in so far as
it fixes the minimum of the indeterminate sentence at six months and
one day.

The crime of robbery with which the herein appellant is charged is
that provided for and punished in article 299, paragraph 4, of the
Revised Penal Code, the penalty imposed being the minimum period of prision correccional in its medium period to prision mayor
in its minimum period, for the reason that no arm had been carried and
the value of the property taken by him did not exceed P250. The
majority opinion, in reducing the penalty prescribed by law by one
period, for the purpose of determining the minimum of the indeterminate
penalty, fixes it at prision correccional in its minimum period, that is, from six months and one day to one year and ten days.

According to paragraph 3 of said article 299 of the Revised Penal
Code, when the offenders are armed and the value of the property taken
does not exceed 250 pesos, the penalty of prision correccional in its medium period to prision mayor in its minimum period shall be imposed. The minimum of the indeterminate sentence in this case would be arresto mayor in its medium period to prision correccional
in its minimum period, that is, from two months and one day to two
years and four months. By fixing the minimum of the indeterminate
sentence at the minimum of the minimum period of the reduced penalty,
as was done by the majority opinion in question, we would have two
months and one day of arresto mayor. It appears from the
foregoing that when the offenders rob with arms and the value of the
property taken does not exceed 250 pesos, they are more favored than
when they rob property of the same value without arms, which fact does
not seem to be just and equitable.

This injustice is precisely what the Supreme Court of Spain wished
to avoid in its decision of January 4, 1887, rendered fifteen years
after that of June 13, 1873, which the majority has followed preferably
to the subsequent decisions of July 5, 1872, September 26, 1872, and
October 15, 1872, laying down a different doctrine. The abovecited
decision of January 4, 1887, affirming the doctrine laid down in said
subsequent decisions, reads as follows:

“Considering that, according to the provisions of
article 521 of the Penal Code, offenders who commit robbery in an
inhabited house incur the penalty of presidio mayor in its medium period to cadena temporal in its minimum period, when they carry arms and the value of the property taken exceeds 500 pesetas; the penalty lower by one degree, that is, presidio correctional in its medium period to presidio mayor
in its minimum period, when the property taken exceeds said amount and
the offenders do not carry arms, or when the property taken does (not)
exceed said amount and the offenders carry arms, which penalty, by
express provision of the last paragraph of the above-cited article, as
drafted by virtue of the Royal Decree of January 1, 1871, should be
imposed in its minimum period, when the offenders do not carry arms and
the value of the property taken does not exceed 500 pesetas;

“Considering that, such being the case of the accused, the penalty
corresponding to the crime committed by him, if it had been
consummated, would be the minimum period of the penalty constituted by
the medium and maximum periods of presidio correctional and the minimum period of presidio mayor, that is, the first of the three periods above-stated;

“Considering that, as the penalty corresponding to the authors of a
frustrated crime, pursuant to article 66 of the Penal Code, is the next
lower than that prescribed by law for the consummated crime, the one
that should be imposed in the case under consideration, according to
rule 4 of article 76, is that formed by the medium and maximum periods
of arresto mayor and the minimum period of presidio correctional,
for the reason that the three periods next higher than these constitute
the penalty for the crime serving as standard for the determination of
the penalty;

“Considering that, if, as a general rule,
when the penalties prescribed by law are constituted by only one or two
periods of divisible penalties, the higher and lower ones are formed by
the same number of periods immediately following, by reason of analogy
prescribed in rule 5 of said article 76, such thing should not be done
when, as in this case, the law prescribes the penalty in connection
with another composed of three divisible periods, in which case the
graduation should be made in accordance with said rule 4;

“Considering that the application of this rule, and not that which
seemed to have prompted the trial court to proceed as it did, is
furthermore inevitable in principles of strict justice in order to
prevent what would happen, were the latter rule to prevail, that the
author of a frustrated crime of robbery in an inhabited house,
involving an amount exceeding 500 pesetas, would, under the
same conditions, have to be punished with a penalty lighter than that
of a person directly responsible for a similar crime involving less
amount;

“Considering, therefore, that the penalty next
lower in degree than that prescribed for the consummated crime under
consideration being k in its medium period, the criminal court of Talavera, which sentenced the accused to the penalty of presidio, committed the alleged violations and error of law.”

The majority opinion reads:

“It is true that, according to the decision of June
13, 1872, the penalty next lower in degree, if the crime were more
serious, having been committed with arms, would be lighter. The
subsequent decisions, however, give rise to the same anomaly where the
prescribed penalty, instead of being the minimum, is the maximum of prision correccional in its medium period to prision mayor in its minimum period, that is, prision mayor
in its minimum period, for the reason that the crime was committed in
an uninhabited place and in band (art. 300, Revised Penal Code),
inasmuch as in such case the penalty next lower in degree, according to
said decisions, would be prision correccional in its minimum
period, and the same penalty, as the one next lower in degree, would be
imposed if the crime were lighter, not having been committed in an
uninhabited place and in band, if aggravating circumstances were
present without any mitigating circumstance, which anomaly would
consist in the punishment of the crime with the same penalty both when
it is more serious and when it is lighter.”

In my humble opinion, the alleged anomaly does not exist, because
article 800 of the Revised Penal Code, in prescribing the maximum
period of the penalty of prision correccional in its medium period to prision mayor
in its minimum period, takes into consideration uninhabited place and
band as special aggravating circumstances. The same penalty would be
imposed if aggravating circumstances were present, without any
mitigating circumstance, even when the crime had not been committed in
an uninhabited place and in band. In one as well as in the other case
the aggravation is made to consist in the presence of aggravating
circumstances, with the difference, however, that if ordinary
aggravating circumstances were furthermore present in the case of
robbery in an uninhabited place and in band, without any mitigating
circumstance, the maximum period of the penalty of prision correccional in its medium period to prision mayor in its minimum period, that is prision mayor
in its minimum period, would be imposed in its maximum period, which
penalty would be more severe in the more serious crime than that which
would be imposed in a lighter crime.

The interpretation given by the Supreme Court of Spain in the
decision just quoted is not contrary to the spirit underlying articles
166 and 168 of the Revised Penal Code. Said decision distinguishes
penalties constituted by only one or two periods of divisible
penalties, as that imposed in article 166 above-cited, from those
prescribed in connection with other penalties composed of three
divisible periods, as in article 299, paragraph 5, of the Revised Penal
Code, now under consideration. In the first case, in order to graduate
the penalty prescribed in subsection 1 of said article 166, rule 5 of
article 61 of the Revised Penal Code would have to be applied, by
imposing the penalty of prision mayor in its maximum period
upon a person guilty of the crime provided for in article 168 of said
Code, which is the penalty next lower in degree than reclusion temporal
in its minimum period. In the second case, rule 4 of said article 61
would have to be applied in order to graduate the penalty, as we have
done above. With the doctrine laid down by the Supreme Court of Spain
in the above-quoted decision, anomalies and injustices are avoided.

The minimum penalty which, in my humble opinion, should have been fixed in the case under consideration, should have been arresto mayor in its medium period, that is, two months and one day, which is the most equitable and just penalty.