EN BANC G.R. No.

45089 September 17, 1936

THE PEOP E O! THE PH" "PP"NE "S AN#S, Plaintiff-Appellee, vs. #O$"NA#OR ! ORES % AG&" AR, Defendant-Appellant. Artemio M. Lobrin for appellant. Acting Solicitor-General Melencio for appellee. '" A(REA , J.)

This is an appeal taken by the accused Dominador Flores y Aguilar from the judgment of the Court of First Instance of anila finding him self!confessed and guilty of the crime of frustrated theft provided for and punished in article "#$, case %, in connection &ith article %#, of the 'evised (enal Code, and sentencing him to the principal penalty of eleven days of arresto menor and the additional penalty of t&o years, four months and one day of prision correccional for being a habitual delin)uent, &ith the accessory penalties of the la& and costs.chanroblesvirtuala&library chanrobles virtual la& library In support of his appeal, the appellant contends that the court a quo erred in sentencing him to the principal penalty of eleven days of arresto menor.chanroblesvirtuala&library chanrobles virtual la& library The penalty prescribed by article "#$, case %, of the 'evised (enal Code for the crime of consummated theft is arresto mayor to its full e*tent, if the value of the thing stolen is over (% but does not e*ceed (%#. As the crime of &hich the defendant!appellant pleaded guilty is frustrated theft, the penalty &hich should be imposed upon him is the one ne*t lo&er in degree to arresto mayor, &hich is arresto menor, in accordance &ith the provisions of article %#, in connection &ith articles +, and -# of said Code. Inasmuch as the aggravating circumstance of recidivism .art. ,/, subsec. $ of the 'evised (enal Code0,&hich is compensated by the mitigating circumstance of the plea of guilty .art. ,", subsec. -, of said Code0, &as present at the commission of the crime, said penalty of arresto should be imposed in its medium period, or from eleven to t&enty days of arresto menor, pursuant to rules , and / of article +/ of said Code. The principal penalty imposed by the trial court is, therefore, in accordance &ith la&.chanroblesvirtuala&library chanrobles virtual la& library The defendant!appellant does not assign as error the fact that he &as declared a habitual delin)uent and imposed the corresponding additional penalty by the trial court. 1aving pleaded guilty of the crime of frustrated theft &ith &hich he is charged in the information, and having admitted thereby only the facts alleged therein, &hich facts are insufficient to prove the e*istence of habitual delin)uency because neither the dates of the former convictions nor those of the commission of the crimes of &hich he &as convicted are specified in said information, the additional penalty prescribed for habitual delin)uency cannot be imposed upon him and, therefore, the court a quo committed an error of la& in declaring the

defendant!appellant a habitual delin)uent. .(eople vs.2antiago, %% (hil., 3++4 (eople vs. De la Cru5, 6. '. 7o. ""-8+, promulgated February -, ,$",, not reported4 (eople vs. 9entura, %+ (hil., ,4 (aguntalan vs. Director of (risons, %- (hil., ,/#4 (eople vs. orales, +, (hil., 3334 (eople vs. Artigas, 6. '. 7o. /"$#,, promulgated 7ovember 3-, ,$"% :+3 (hil., $-3;4 (eople vs. De la 'ama, 6. '. 7o. /"-//, promulgated 7ovember 3-, ,$"% :+3 (hil., $-3;4 (eople vs. 9enus, p. /"%,ante.0chanrobles virtual la& library <herefore, the appealed sentence is reversed in so far as it declares the accused a habitual delin)uent and imposes the corresponding additional penalty upon him, and it is affirmed in all other respects, &ith the costs of both instances to the appellant. 2o ordered.chanroblesvirtuala&library chanrobles virtual la& library Avancea !. ". Abad Santos #mperial Dia$ and Laurel "". concur.