1. CRIMINAL LAW AND PROCEDURE; COMPLEX CRIME OF ESTAFA THROUGH FALSIFICATION OF A PUBLIC DOCUMENT; COMPUTATION OF PENALTY NEXT LOWER TO THAT PRESCRIBED BY LAW. — The offense charged and admitted by appellant constitutes the complex crime of estafa through falsification of a public document, and comes under No. 4, Article 315, in connection with Article 171, of the Revised Penal Code, the penalty prescribed being, pursuant to Article 48 of the said code, that which is provided for the more serious offense to be applied in its maximum period. The penalty provided for the more serious offense — falsification of a public document by a public officer — is prision mayor and a fine not to exceed P5,000. Since appellant is entitled to the mitigating circumstances of voluntary surrender and plea of guilty, the penalty next lower to that provided by law should be imposed in accordance with Rule 5, Article 64, of the Revised Penal Code.

2. ID.; ID.; ID. — Though, as a general rule, when the penalties prescribed by law are constituted by only one or two periods of divisible penalties, the higher and the lower ones are formed by the same number of periods immediately following, this should not be done when, as in this case, the law prescribes the penalty in connection with another composed of three divisible periods, and the graduation should therefore be made in accordance with Rule 4 of Article 61 of the Revised Penal Code. In the instant case, the penalty provided by law is prision mayor which should be applied in its maximum period, because of the complex nature of the offense charged. There being two mitigating circumstances, the accused is entitled to the penalty next lower in degree. For the purpose of determining the penalty next lower, the penalty that should be considered as a starting point is the whole prision mayor, it being the penalty prescribed by law, and not prision mayor in its maximum period which is only the penalty actually applied because of an attending circumstance. The penalty next lower to prison mayor is prision correccional and this latter penalty should be applied in its maximum because of the circumstance above mentioned. In other words, as has been indicated in the Co Pao case, 58 Phil. 545, the penalty next lower in degree should be determined before imposing it in its maximum, and not the reverse as was done before.

3. ID.; ID.; ID.; INDETERMINATE SENTENCE LAW. — Applying the Indeterminate Sentence Law to the accused, the maximum of the penalty to be imposed upon him shall be the maximum period of prision correccional, that is, from 4 years, 2 months and 1 day to 6 years. The minimum of the indeterminate penalty shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Prision correccional is the penalty provided by law for the offense and the penalty next lower is arresto mayor which may be applied in any of its periods in the discretion of the court, taking into account not only the circumstances attending the crime but such other circumstances as are material for the determination of a penalty adequate to the peculiar situation of the accused.

Appellant, Laureano Gonzalez, was charged in the Court of First Instance of Manila with the crime of estafa through falsification of a public document. The information alleges that on or about the 9th of November 1940, appellant, as a laborer in the Department of Labor with the duty of running errands, with intent to defraud the Government of the Commonwealth, forged and falsified a public document, which is a reimbursement expense receipt, by preparing the said receipt and writing thereon the signature of Enrique Corpus, chief of the property section of the Department of Labor, making it appear that he officially incurred a transportation expense in the amount of sixty centavos (P0.60) which he claimed to have advanced from his personal funds, when, as a matter of fact he did not incur any such expense, and that Enrique Corpus never approved nor signed said receipt; that appellant thereafter wrote on the forged document his own signature and that of said Enrique Corpus and presented it to Gabriel Nazareno, cashier and disbursing officer, for payment and said cashier did pay; and that the accused misappropriated the amount for his own personal use.

Upon arraignment, defendant pleaded guilty and was sentenced by the trial court to an indeterminate penalty of 6 years and 1 day to 8 years and 1 day of prision mayor, to pay a fine of P100 and to indemnify the Government in the sum of sixty centavos (P0.60). From this judgment he appealed to this Court questioning the propriety of the penalty imposed upon him.

The offense charged and admitted by appellant constitutes the complex crime of estafa through falsification of a public document, and comes under No. 4, Article 315, in connection with Article 171, of the Revised Penal Code, the penalty prescribed being, pursuant to Article 48 of the said code, that which is provided for the more serious offense to be applied in its maximum period. The penalty provided for the more serious offense — falsification of a public document by a public officer — is prision mayor and a fine not to exceed P5,000. Since appellant is entitled to the mitigating circumstances of voluntary surrender and plea of guilty, the penalty next lower to that provided by law should be imposed in accordance with Rule 5, Article 64, of the Revised Penal Code.

But what is the penalty next lower to prision mayor when the latter is to be applied in its maximum period? There are two prevailing theories on this matter: (1) that the penalty next lower in degree should be prision mayor in its medium period, and (2) that it should be prision correccional in its maximum period. The second theory was laid down by this Court in U. S. v. Fuentes, 4 Phil. 404, but it was later abandoned in People v. Co-Pao, 58 Phil. 545, and People v. Haloot, 37 Off. Gaz. 2901, wherein the first theory was adopted as a rule. By stare decisis this Court has been consistently following the first theory, but due to special circumstances brought to our attention we have assented to reopen the question and consider anew all the reasons advanced in favor of the one and the other theory.

There can be no doubt that the penalty next lower to another should begin where the latter ends, because, otherwise, if it were to skip over intermediate ones, it would be lower, but not the next lower, in degree. Thus if, for instance, the penalty provided by law is the maximum of prision mayor, the penalty next lower cannot be the maximum of prision correccional, because we would be jumping over the intermediate penalties of prision mayor, minimum and medium. According to Rule 4, Article 61, of the Revised Penal Code, when the penalty prescribed by law is constituted by three periods of a divisible penalty, the higher and the lower ones must be formed by the same number of periods immediately following. And, by analogy, when the penalty prescribed by law is constituted by only one or two periods of a divisible penalty, the higher and the lower ones are formed also by the same number of periods immediately following, according to Rule 5, Article 61, of the same code.

There is no difficulty in the application of the rule where the penalty provided by law is clearly one period of a divisible penalty. The difficulty arises when the law, upon fixing the penalty for a felony, prescribes one composed of three periods to be applied in only one of them by reason of attending circumstances. For instance, in a robbery case, when the offender does not carry arms and the value of the property taken does not exceed P250, the penalty should be prision correccional in its medium period to prision mayor in its minimum period to be applied in its minimum period, according to the penultimate paragraph of Article 299 of the Revised Penal Code. It may be said that the penalty provided by law in this instance is the medium period of prision correccional, a penalty that is complete for it has its three periods, and its limits cannot be exceeded whatever and however numerous the aggravating circumstances present in the crime may be. On the other hand, if we say that in this case the penalty next lower in degree to prision correccional in its medium period is prision correccional in its minimum period, the result would be that the penalty for the crime is heavier than the penalty provided for a more serious crime, such as robbery of property of the same value but committed with arms, because in this last crime the penalty to be applied according to the Indeterminate Sentence Law is arresto mayor in its medium period to prision correccional in its minimum period, which is lighter than prision correccional in its minimum period. Should this theory be allowed to prevail, other anomalies would happen, as, for instance, that the author of a frustrated crime of robbery in an inhabited house involving an amount not exceeding P250 would, under the same conditions, have to be punished with a penalty lighter than that of a person directly responsible for a similar offense involving a lesser amount. Again, prision mayor in its minimum period is a lighter penalty than prision mayor in its full extent, and yet the penalty next lower to the former is heavier than the penalty next lower to the latter. Prision mayor in its maximum degree is a graver penalty than prision mayor in its full extent, and yet the penalty next higher to the former is lighter than the penalty next higher to the latter.

Viada, commenting on this matter, says:jgc:chanrobles.com.ph

"Cual es la pena inmediatamente inferior en grado que debera aplicarse, con sujecion a los arts. 66 y 68, parrafo segundo del 86, al autor del delito frustrado, al complice del consumado y al mayor de quince años y al menor de diez y ocho autor del delito consumado de robo sin armas y por valor que no excede de 500 pesetas? En