FIRST
DIVISION
THE
PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.
R.
No. 45367
February
10, 1937
-versus-
FAUSTINO
SANTIAGO
SIM,
Defendant-Appellant.
D
E C I S I
O N
DIAZ,
J:
The question raised in
the appeal of the defendant Faustino Santiago Sim is whether or not he
may be considered a habitual delinquent in view of his voluntary
confession
of guilt made during the trial, for the reason that it was alleged in
the
Information filed against him that on September 2, 1936, he committed a
third crime against property [Estafa of P50], after having been
convicted
of, and sentenced for two crimes, one of theft and the other of estafa
on October 11, 1935, and November 1st of said year, respectively,
whereupon,
he was sentenced to several months of arresto menor which he served in
prison until January 8, 1936.
The allegation
contained
in the Information to the effect that the appellant is a habitual
delinquent
simply reads:
"That the said
accused
is a habitual delinquent under the provisions of the Revised Penal
Code,
he having been previously convicted by final judgments rendered by
competent
courts, as follows:
"October 11, 1935 —
Theft — M. C. D. H. — 40247 — Released Jan. 8, 1936.
"November 1, 1935 —
Estafa — M. C. D. H. — 40877 — Released Jan. 8, 1936."
As may be noted, the foregoing
allegation does not state when the appellant committed the two crimes
of
theft and estafa of which he was previously convicted. He might have
committed
them on the same day or so shortly one after the other that when he was
tried for the latter crime, assuming that it was of said crime that he
was convicted on November 1, 1935, nothing warranted, as there is
nothing
now to warrant his being a recidivist in the strict sense of the law.
The Information which
gave rise to this case has the same defect and the same omission as
that
found and emphasized by this Court in the cases of People vs. Santiago
[55 Phil., 266], People vs. Venus [63 Phil., 435], People vs. Tapel [63
Phil., 464], and several others, to wit: the lack of a concrete
allegation as to the dates of the commission of the crimes alleged to
have
been committed by the appellant claimed to be a habitual delinquent.
Informations
of the nature of the one under consideration, alleging habitual
delinquency,
as provided in Article 62, Subsection 5 of the Revised Penal Code, must
state not only the dates of the final judgments rendered against the
accused
and those of his release by reason of service of sentence or any other
cause, but also the dates of the commission of his previous crimes, in
order to avoid doubts as to whether or not he is a recidivist once or
oftener;
because he is not a recidivist who, at the time of his trial for one
crime,
has not been previously convicted by final judgment of another crime
embraced
in the same title of the Revised Penal Code [Article 14, Subsection 9].
All indications show that when the appellant was sentenced for the
crime
of which he was convicted on November 1, 1935, he was not a recidivist
for the first time. Had he been so, the lower court would have
necessarily
taken into consideration said circumstance and instead of imposing upon
him the penalty of two months and one day, which is the minimum period
of the penalty prescribed for his offense, taking into account the fact
that the amount embezzled was only P15, it would have imposed upon him
the penalty of four months and twenty-one days of arresto mayor
[Article
315, 4th case, Revised Penal Code].
Consequently, only
one recidivism should be taken into consideration against the appellant
which circumstance is certainly offset by his voluntary confession of
guilt
prior to the presentation of any evidence against him [Article 13,
Subsection
7, Revised Penal Code].
In view of the
foregoing,
and taking into consideration the fact that the amount embezzled by the
appellant does not exceed P200, the penalty which the lower court
should
have imposed upon him is the medium period of arresto mayor in
its
medium and maximum periods, or at least three months and eleven days.
Modified as
above-stated
by entirely eliminating therefrom the additional penalty of two years,
four months and one day of prision correccional, which is
improper
not being in accordance with law, the appealed judgment is affirmed in
all other respects, without special pronouncement as to costs. So
ordered.
Avanceña,
C.J.,
Villa-Real, Abad Santos, Imperial, Laurel and Concepcion, JJ.,
concur.
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