CRIMINAL LAW AND PROCEDURE; WHEN VOLUNTARY CONFESSION OF GUILT SHOULD NOT BE TAKEN INTO ACCOUNT; AGGRAVATING CIRCUMSTANCE OF RECIDIVISM. — The defense does not deny the guilt of the accused, but maintains that the principal penalty should be applied in is minimum period on the ground that the accused voluntarily pleaded guilty. The mitigating circumstance involved cannot be taken into consideration in view of the fact that the accused did not plead guilty in the municipal court where the case was originally tried (People v. Hermino, 36 Off. Gaz., 2216; People v. Rawasanta, 36 Off. Gaz., 2237; People v. Cariaga, G. R. No. 46245, Oct. 18, 1938). In the commission of the offense, the aggravating circumstance of recidivism alleged in the information and admitted by the accused should be taken into account and, since no mitigating circumstance was present therein, the penalty of arresto mayor in its medium period to prision correctional in its minimum period, prescribed in article 309, No. 4, of the Revised Penal Codes should be imposed in is maximum period. With respect to the additional penalty, that imposed by the court is in accordance with article 62, No. 5 (a), of the Revised Penal Code, this being the third conviction of the accused.

.Marcelino Jose y Payumo was charged in the municipal court of the City of Manila with having committed the crime of theft of a bicycle valued at P90, belonging to Pedro Manlupa, he being a habitual delinquent for having been convicted twice of the same offense by virtue of judgments rendered by competent courts, and was found guilty of said crime and sentenced to four months and one day of arresto mayor plus the additional penalty of two years, four months and one day of prision correccional, for being a habitual delinquent. He appealed from the judgment 90 rendered and in the Court of First Instance he pleaded "not guilty" upon arraignment. When the case was called for trial, he withdrew his plea of "not guilty" and substituted it with that of "guilty", thereby causing the court to sentence him to the same penalty, and in addition thereto, to indemnify the offended party in the sum of P90, with the corresponding subsidiary imprisonment in case of insolvency, and the costs. The accused again appealed from the latter judgment.

The defense does not deny the guilt of the accused, but maintains that the principal penalty should be applied in its minimum period on the ground that the accused voluntarily pleaded guilty. The mitigating circumstance invoked cannot be taken into consideration in vie v of the fact that the accused did not plead guilty in the municipal court where the case was originally tried (People v. Hermino, 36 Off. Gaz., 2216; People v. Bawasanta, 36 Off. Gaz., 2237; People v. Cariaga, G. R. No. 46245, Oct. 18, 1938). In the commission of the offense, the aggravating circumstance of recidivism alleged in the information and admitted by the accused should be taken into account and, since no mitigating circumstance was present therein. the penalty of arresto mayor in its medium period to prision correccional in its minimum period, prescribed in article 309, No. 4, of the Revised Penal Code, should be imposed in its maximum period. With respect to the additional penalty, that imposed by the court is in accordance with article 62, No. 5 (a), of the Revised Penal Code, this being the third conviction of the accused.

It being understood that the penalty to be served by the accused is that of six months and one day of prision correccional, plus the accessory penalties prescribed by the Revised Penal Code, the appealed judgment is affirmed in all other respects, with the costs of this instance to the Accused-Appellant. So ordered.

Avanceña, C.J., Villa Real, Diaz, Laurel, Concepcion, and Moran, JJ., concur.