CARLOS LOFIDO Y GALANG, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES AND THE COURT OF APPEALS, RESPONDENTS.

The petitioner has instituted this proceeding
to question the validity of the judgment rendered against him by the
Court of First Instance of Manila in criminal case No. 53106, which the
Court of Appeals modified on appeal by increasing his principal penalty
of two months and one day to four months and one day, sustaining his
additional penalty of three years, six months and twenty-one days, for
being a habitual delinquent. He contends that the two courts exceeded
their respective jurisdictions in imposing the additional penalty upon
him, on the ground that they were not authorized to do so, he not being
a habitual delinquent in the legal sense.

He bases his contention exclusively on the alleged
insufficiency of the allegations of the information upon which he was
charged, that he is a habitual delinquent, and invokes this court’s
interpretation of subsection 5 of article 62 of the Revised Penal Code
and of the laws from which the same provision was taken, in the cases
of People vs. Venus (35 Off. Gaz., 927), and People vs. Tapel (35 Off. Gaz., 612). The allegation of the information referred to by him literally reads as follows:

“That the said accused is an habitual delinquent,
he having already been convicted three (3) times of the crime of theft,
by virtue of final judgments of competent courts, the date of his last
conviction being February 1936, and his last release March 24, 1936,
and the dates of the previous two convictions being March 3 and 5,
1934, respectively.”

There is no analogy between the petitioner’s case and that of the
accused in the cases invoked by him because he did not plead guilty as
they did, and, of course, the courts that tried the latter’s respective
cases could not take into consideration more facts than those alleged
in the informations presented against them. This court found that the
allegations of facts relative to their habitual delinquency, contained
in the informations in question, were insufficient because they failed
to set forth the reasons for considering said accused as recidivists
and habitual delinquents, it not appearing as it did not appear
therein, when they were convicted of the crimes imputed to them and
when they committed such crimes. Neither did the informations in
question mention when they had been released after service of sentence.
There was the possibility that the crimes, of which they were convicted
prior to their last crime, were committed at the same time or on the
same date, and that such convictions took place also on the same date
or on dates so close to each other as not to give rise to recidivism as
an aggravating circumstance and as an inherent or special qualifying
circumstance of habitual delinquency (People vs. De Jesus y Javier, 35 Off. Gaz., 205). For this reason this court held that in all charges for robbery, theft, estafa
or falsification, wherein it is desired to make an averment of habitual
delinquency, the fiscal must also allege in his information the dates
of -the commission of the previous crimes of the accused, the dates of
his convictions thereof and those of his release for service of
sentence, so that when he pleads guilty and the court convicts him,
finding him a habitual delinquent, and he later interposes an appeal to
impugn the judgment declaring him as such, the question may be decided
by this court by taking into account the facts alleged in the
information, which shall then be considered admitted by the accused by
virtue of his confession or admission of guilt, and not in mere
conclusions of fact.

The petitioner, in not pleading guilty as Venus and Tapel had done
in their respective cases, demanded trial which was naturally granted
him. At the trial, the prosecuting attorney proved that his former
convictions of theft took place on March S and 5, 1934, and that the
theft previous to the last one committed by him on September 4, 1936,
took place on February 1,1936. Considering as only one conviction the
petitioner’s two convictions of March 3 and 5, 1934, for each of which
he was sentenced to two months and one day, or four months and two days
for both, which is the most favorable thing that may be conceded to
him, it clearly appears that he was already a recidivist for the second
time when he committed his second crime on February 1,1936, and that
almost two years already elapsed from the time he had been convicted
and released. It is likewise clear that when the last charges were
preferred against him, he was already a recidivist for the third time,
because from February 1, 1936, the date of the final judgment rendered
against him, to September 4, 1936, the date of the commission of his
last crime, more than sufficient time had already elapsed for service
of the sentence imposed upon him. Consequently, the petitioner’s claim
that the Court of Appeals, as well as the Court of First Instance which
sentenced him, exceeded its jurisdiction in declaring him a habitual
delinquent for the third time, is untenable. He was a habitual
delinquent at the time of his last conviction, even without taking into
account the erroneous opinion and conclusion of the Court of Appeals
that the confinement of the petitioner in the Philippine Training
School for Boys on July 16, 1931, warrants the conclusion that he was a
recidivist, he not being so by reason thereof. Such conclusion is in
conflict with the unequivocal provisions of article 80 of the Revised
Penal Code prohibiting the pronouncing of judgment of conviction in
case of minors, except under the circumstances provided for in the next
to the last paragraph thereof, which does not seem to be the case
herein because the records do not so state, and it is well settled that
without final judgment there can be no recidivism (art. 14, subsec. 9).

Having arrived at this conclusion, and it appearing that the
penalties imposed by the Court of Appeals upon the petitioner are in
accordance with law, the appealed judgment of the Court of Appeals is
hereby affirmed, with the costs de oficio, in view of the fact that the petitioner is at present confined in prison and is indigent. So ordered.

Villa-Real, Abad Santos, Imperial, Laurel, and Concepcion, JJ., concur.