THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. CARLOS DE LA PEÑA Y LACSAMANA, DEFENDANT AND APPELLANT.

Carlos
de la Peña y Lacsamana was prosecuted and convicted later of the crime
of theft, first, in the municipal court of the City of Manila, and
afterwards in the Court of First Instance of said city, for having
taken away, without the consent of the owner and with intent of gain,
on July 12, 1938, ten pairs of socks valued at P4.50 belonging to the
Toyo Bazar. The penalties imposed upon him by said courts were four
months and one day of arresto mayor, as the principal
penalty, and ten years and one day, as additional penalty, for being a
habitual delinquent. He appealed from the judgments which imposed said
penalties upon him, alleging that four months and one day of arresto mayor
is an excessive penalty for his crime on the ground that it exceeds
that prescribed by law; and that the additional penalty of ten years
and one day is cruel and unusual, taking into consideration the little
value of the articles stolen by him.

The appellant contends that he should have been sentenced at most to the minimum period of arresto mayor, that is, from one month and one day to two months, without the additional penalty of ten years and one day of prision mayor, the latter penalty being unusual and cruel.

The reason alleged by the appellant in support of his first proposition
is that he voluntarily pleaded guilty upon being tried in the Court of
First Instance of Manila. The records, however, show that in the
municipal court, where the case was first tried, since the
determination of the same devolved upon said court by reason of the
nature of the crime charged therein and also by reason of the penalty
that should be imposed for the commission thereof, he neither admitted
any thing nor acknowledged having committed any crime at all. Hence the
necessity for the prosecution to present its evidence. The rule laid
down in this jurisdiction is that, in order that the mitigating
circumstance of voluntary confession of guilt may be taken into
consideration as such, it is necessary that it be made in open court,
at the first opportunity, that is, before the. competent court that is
to try the case of the person making such confession. Confessions made
under the circumstances of the appellant do not constitute, in the eyes
of the law, a mitigating circumstance for the reasons stated in the
cases of People vs. Hermino (36 Off. Gaz., 2216); People vs. Bawasanta (36 Off. Gaz., 2237); and People vs. Sy Chay (37 Off. Gaz., 3206).

On the other hand, the penalty prescribed by law (arts. 308 and 309,
subsec. 6, of the Revised Penal Code) for the crime committed by the
appellant, is that of arresto mayor in its minimum and medium
periods, that is, from one month and one day to four months, the
maximum period of which is from three months and one day to four
months. Inasmuch as the information filed against the appellant alleged
facts clearly showing that he is a recidivist for the fifth time during
the last ten years, he necessarily incurs the maximum of said penalty.
This is so because the only mitigating circumstance that might
compensate said aggravating circumstance, which is that of plea of
guilty, cannot be taken into consideration for the reasons already
stated. However, this court is not unaware of the fact that the lower
court imposed one day more than the penalty that should be imposed upon
the appellant. As has just been stated a few lines before, the maximum
period of the penalty that should be imposed upon the appellant may not
exceed four months. Therefore, the error committed should be corrected.

With respect to the second proposition, that is, whether or not the additional penalty of ten years and one day of prision mayor
imposed upon the appellant is unusual and cruel, it should be stated
that the question raised has already been decided more than once, this
court having then held very clearly that the additional penalties
imposed for habitual delinquency by virtue of the provisions of article
62 of the Revised Penal Code, are neither cruel nor unusual (People vs. Madrano, 53 Phil., 860; People vs.
Montera, 55 Phil., 933). Consequently, there is no necessity of again
passing upon the same question, the reasons stated in the above-cited
cases being sufficient to decide said question in the negative.

Wherefore, the appealed judgment is modified in the sense of
eliminating one day from the principal penalty imposed upon the
appellant, so that the same is understood to be four months of arresto mayor. In all other respects, said judgment is affirmed, with the costs to the appellant. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Laurel, JJ., concur.