EN BANC
[G.R. No. L-1782. February 2, 1948. ]
FIDEL B. FORTUNATO, Petitioner, v. THE DIRECTOR OF PRISONS, Respondent.
Fidel B. Fortuno in his own behalf.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Ramon L. Avanceña for Respondent.
SYLLABUS
1. HABEAS CORPUS; PAROLE; VIOLATION OF CONDITION NOT TO COMMIT ANY CRIME; CONVICTION AFTER RECOMMITMENT BUT BEFORE FILING OF PETITION FOR HABEAS CORPUS. — The petitioner broke the condition of his parole that he would not commit any crime, since he was prosecuted for and finally convicted of the series of estafa committed by him during the period of his parole. Petitioner’s contention that the recommitment order was premature, because it came down before his convictions, is now rather academic, even assuming that final conviction is necessary in order to constitute a violation of the condition in dispute.
2. ID.; ERROR IN COUNTING CERTAIN CONVICTION FOR HABITUAL DELINQUENCY PURPOSES, NOT TO BE CORRECTED IN. — An alleged error in counting a conviction for illegal possession of counterfeit bills for habitual delinquency purposes, cannot be corrected in a proceeding for habeas corpus, for "it was rather an error of judgment and not an undue exercise of judicial power which vitiates and nullifies the proceeding."cralaw virtua1aw library
3. ID.; ERROR AS TO FINDING OF HABITUAL DELINQUENCY, NOT TO BE COUNTED IN. — An alleged error of the lower court in finding the petitioner an habitual delinquent because the information did not contain any allegation to that effect, is merely a defect of procedure and cannot be corrected in habeas corpus proceedings.
4. ID.; SPECIAL ALLOWANCE FOR LOYALTY, NOT GIVEN TO PRISONERS WHO HAVE NOT ESCAPED. — The special allowance for loyalty authorized by articles 98 and 158 of the Revised Penal Code refers to those convicts who, having evaded service of their sentences by leaving the penal institution, give themselves up within two days and not to those who have not escaped.
2. ID.; ERROR IN COUNTING CERTAIN CONVICTION FOR HABITUAL DELINQUENCY PURPOSES, NOT TO BE CORRECTED IN. — An alleged error in counting a conviction for illegal possession of counterfeit bills for habitual delinquency purposes, cannot be corrected in a proceeding for habeas corpus, for "it was rather an error of judgment and not an undue exercise of judicial power which vitiates and nullifies the proceeding."cralaw virtua1aw library
3. ID.; ERROR AS TO FINDING OF HABITUAL DELINQUENCY, NOT TO BE COUNTED IN. — An alleged error of the lower court in finding the petitioner an habitual delinquent because the information did not contain any allegation to that effect, is merely a defect of procedure and cannot be corrected in habeas corpus proceedings.
4. ID.; SPECIAL ALLOWANCE FOR LOYALTY, NOT GIVEN TO PRISONERS WHO HAVE NOT ESCAPED. — The special allowance for loyalty authorized by articles 98 and 158 of the Revised Penal Code refers to those convicts who, having evaded service of their sentences by leaving the penal institution, give themselves up within two days and not to those who have not escaped.
D E C I S I O N
PARAS, J.:
This is a petition for the writ of habeas corpus in which the petitioner, a prisoner whose aggregate penalty is more than twenty years of imprisonment counted from October 8, 1941, seeks his immediate release.
The first ground is that the recommitment order issued by the Board of Indeterminate Sentence on October 4, 1941, directing the confinement of the petitioner for the unexpired portion of his maximum sentence in case No. 9587 of the Court of First Instance of Rizal (2 years, 4 months and 22 days), was illegal and otherwise premature, because (1) petitioner’s one-day trip to Santa Rosa, Laguna, merely to get money from his relatives, did not constitute a violation of the condition of his parole that he was to live in Manila and not to change his residence during the period of his parole without the prior permission of the board, and (2) the mere filing against the petitioner of several complaints for estafa, without final judgment of conviction, did not constitute a violation of another condition of his parole that he was not to commit any crime and was to conduct himself in an orderly manner. Petitioner’s position is untenable. Without deciding whether or not his visit to Santa Rosa without first securing the consent of the board was a violation of one of the conditions of his parole, it may safely be held that he broke the other condition; namely, that he would not commit any crime, since the petitioner was prosecuted for and finally convicted of the series of estafa committed by him during the period of his parole. Petitioner’s contention that the recommitment order was premature, because it came down before his convictions, is now rather academic, even assuming that final conviction is necessary in order to constitute a violation of the condition in dispute.
The second ground is that the additional penalty of 10 years of imprisonment imposed upon the petitioner in CA — G. R. No. 79, was illegal and in excess of the jurisdiction of the court, because his conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency purposes, since said conviction is not for robbery, theft, estafa or falsification. In other words, petitioner’s contention is that his previous conviction for illegal possession of counterfeit bills was wrongly included. Such mistake, even if true, cannot be corrected in a proceeding for habeas corpus, for there is virtually no difference between the alleged error and that pointed out in Paguntalan v. Director of Prisons, 57 Phil., 140, wherein it was held that the error of counting as separate convictions various convictions which should be counted as one due to the proximity of the commission of the crimes, should "have been corrected by appeal, for it was rather an error of judgment and not an undue exercise of judicial power which vitiates and nullifies the proceeding."cralaw virtua1aw library
Petitioner also argues that the information in CA — G. R. No. 79 did not contain any allegation that he was an habitual delinquent, though it was alleged therein that he was a recidivist. Apart from the absence of proof on the point, and from the legal presumptions that the court acted lawfully in the exercise of its jurisdiction and performed its duty regularly (section 69, pars. m and n, Rule 123), the alleged defect may be likened to that referred to in Domingo y Reyes v. Director of Prisons, 44 Off. Gaz., 2201, wherein we said that "the allegation, if true, that the judgment of conviction was rendered without a plea of guilty properly entered by the accused to the lesser offense of homicide, is merely a defect of procedure, not of jurisdiction, though it may have the effect of voiding the judgment," and "cannot be reviewed in habeas corpus proceedings wherein the only issue is whether or not the petitioner is entitled to release."cralaw virtua1aw library
The third ground is that the petitioner is entitled to a special allowance of one-fifth of his aggregate penalty on account of his failure to escape from his place of confinement during the war. Our ruling on this feature of the case has to be adverse to the petitioner, inasmuch as we have already held that "the special allowance for loyalty authorized by articles 98 and 158 of the Revised Penal Code refers to those convicts who, having evaded service of their sentence by leaving the penal institution, give themselves up within two days," and not to those who have not escaped. (Artigas Losada v. Acenas, 44 Off. Gaz., 2694.)
It appearing that the petitioner has not yet served his total term of imprisonment, as the periods sought by him to be deducted are not allowable, the petition will be, as the same is hereby, denied without costs. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
FERIA, J.:
The first ground is that the recommitment order issued by the Board of Indeterminate Sentence on October 4, 1941, directing the confinement of the petitioner for the unexpired portion of his maximum sentence in case No. 9587 of the Court of First Instance of Rizal (2 years, 4 months and 22 days), was illegal and otherwise premature, because (1) petitioner’s one-day trip to Santa Rosa, Laguna, merely to get money from his relatives, did not constitute a violation of the condition of his parole that he was to live in Manila and not to change his residence during the period of his parole without the prior permission of the board, and (2) the mere filing against the petitioner of several complaints for estafa, without final judgment of conviction, did not constitute a violation of another condition of his parole that he was not to commit any crime and was to conduct himself in an orderly manner. Petitioner’s position is untenable. Without deciding whether or not his visit to Santa Rosa without first securing the consent of the board was a violation of one of the conditions of his parole, it may safely be held that he broke the other condition; namely, that he would not commit any crime, since the petitioner was prosecuted for and finally convicted of the series of estafa committed by him during the period of his parole. Petitioner’s contention that the recommitment order was premature, because it came down before his convictions, is now rather academic, even assuming that final conviction is necessary in order to constitute a violation of the condition in dispute.
The second ground is that the additional penalty of 10 years of imprisonment imposed upon the petitioner in CA — G. R. No. 79, was illegal and in excess of the jurisdiction of the court, because his conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency purposes, since said conviction is not for robbery, theft, estafa or falsification. In other words, petitioner’s contention is that his previous conviction for illegal possession of counterfeit bills was wrongly included. Such mistake, even if true, cannot be corrected in a proceeding for habeas corpus, for there is virtually no difference between the alleged error and that pointed out in Paguntalan v. Director of Prisons, 57 Phil., 140, wherein it was held that the error of counting as separate convictions various convictions which should be counted as one due to the proximity of the commission of the crimes, should "have been corrected by appeal, for it was rather an error of judgment and not an undue exercise of judicial power which vitiates and nullifies the proceeding."cralaw virtua1aw library
Petitioner also argues that the information in CA — G. R. No. 79 did not contain any allegation that he was an habitual delinquent, though it was alleged therein that he was a recidivist. Apart from the absence of proof on the point, and from the legal presumptions that the court acted lawfully in the exercise of its jurisdiction and performed its duty regularly (section 69, pars. m and n, Rule 123), the alleged defect may be likened to that referred to in Domingo y Reyes v. Director of Prisons, 44 Off. Gaz., 2201, wherein we said that "the allegation, if true, that the judgment of conviction was rendered without a plea of guilty properly entered by the accused to the lesser offense of homicide, is merely a defect of procedure, not of jurisdiction, though it may have the effect of voiding the judgment," and "cannot be reviewed in habeas corpus proceedings wherein the only issue is whether or not the petitioner is entitled to release."cralaw virtua1aw library
The third ground is that the petitioner is entitled to a special allowance of one-fifth of his aggregate penalty on account of his failure to escape from his place of confinement during the war. Our ruling on this feature of the case has to be adverse to the petitioner, inasmuch as we have already held that "the special allowance for loyalty authorized by articles 98 and 158 of the Revised Penal Code refers to those convicts who, having evaded service of their sentence by leaving the penal institution, give themselves up within two days," and not to those who have not escaped. (Artigas Losada v. Acenas, 44 Off. Gaz., 2694.)
It appearing that the petitioner has not yet served his total term of imprisonment, as the periods sought by him to be deducted are not allowable, the petition will be, as the same is hereby, denied without costs. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
FERIA, J.:
I concur in the result.
PERFECTO, J., dissenting:chanrob1es virtual 1aw library
Petitioner complains that the recommitment order issued on October 4, 1941, by the Board of Indeterminate Sentence, for the unexpired portion of petitioner’s sentence in case No. 9587 of the Court of First Instance of Rizal, was illegal and premature, upon two grounds: (1) That his one day trip to Santa Rosa, Laguna, merely to get money from his relatives, did not constitute a violation of the condition of his parole that he was to live in Manila and not to change his residence during the period of his parole without the prior permission of the board, and (2) That the mere filing against petitioner of several criminal complaints, without final judgment of conviction did not constitute a violation of the condition that he was not to commit any crime and was to conduct himself in an orderly manner.
Petitioner’s position is well taken. By making the trip to Santa Rosa, petitioner did not cease to live in Manila and did not change his residence. Residence in one place is not incompatible with visits to other places for purposes other than to establish therein another residence. The condition not to commit any crime and to conduct himself in an orderly manner is not violated by the mere fact that several criminal complaints have been filed. Before final judgment of conviction, the accused cannot be considered as having been guilty of any crime. He is protected by the constitutional presumption of innocence until the contrary is proved, and the proof is the final sentence of conviction. (Section 1 [17], Art. III of the Constitution.)
Petitioner attacks the legality of the additional penalty of 10 years of imprisonment imposed upon him in CA — G. R. No. 79, because his conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency purposes, since said conviction is not for robbery, theft, estafa or falsification. The complaint is well founded. Illegal possession of counterfeit bills cannot be classified as robbery, theft, estafa or falsification. Petitioner is entitled to relief. We disagree with the majority’s position that the error cannot be corrected in a proceeding for habeas corpus. It is not a case of a simple harmless mistake. It is a case of manifest illegality which this Court is duty bound to correct if true justice is to be administered. The case of Paguntalan (57 Phil., 140) is invoked in support of the theory that appeal is the proper remedy. The theory is unreasonable and no authority can make it reasonable. All authorities have to bow before the authority of reason. To give your back to reason is to defeat justice.
Another ground of petitioner is that the information in CA — G. R. No. 79 did not contain any allegation that he was a habitual delinquent. But this contention is dismissed by the majority upon the theory that the error or defect of procedure "though it may have the effect of voiding the judgment, cannot be reviewed in habeas corpus proceedings wherein the only issue is whether or not the petitioner is entitled to release." This position appears to us to be untenable and absurd. Of course it is elemental that the issue in habeas corpus proceedings is whether or not the detained or imprisoned person is entitled to release, but this is only the conclusion to be arrived at and it has to be based on the result of the inquiry as to whether or not the detention or imprisonment is legal or illegal. The right to be released is merely a conclusion, and should be gathered from a result of the question as to the legality or illegality of the deprivation of liberty. When this deprivation is based on a judgment, the validity of the judgment becomes an issue essential in the habeas corpus proceedings. When a prisoner is deprived of his freedom by virtue of a void judgment he is entitled to be released on habeas corpus.
In support of the majority position the decision in Domingo v. Director of Prisons, G. R. No. L-1229 is invoked. That it is erroneous we have already shown in our opinion in said case which we quote:jgc:chanrobles.com.ph
"On July 31, 1946, petitioner was charged with the crime of murder, allegedly committed on July 6, 1946.
"On August 20, 1946, the accused was arraigned. His attorney made the statement that he advised the prosecution of the fact that provocation came from the victim, and that the information ought to be amended. The information without the amendment was read, and the accused entered a plea of not guilty.
"The following is the transcript of the stenographic notes taken during the hearing on August 30, 1946;
"‘RESUMPTION OF THE PROCEEDINGS ON AUGUST 30, 1946, IN THE MORNING.
"‘APPEARANCES:jgc:chanrobles.com.ph
"‘Assistant City Fiscal Guillermo Dacumos, for the prosecution; and,
"‘Attorney Celestino de Dios, for the defense.
"‘Sr. de Dios:jgc:chanrobles.com.ph
"‘El Agosto 26 yo he presentado una carta al Fiscal diciendo que la acusacion tenia entremanos . . . diciendo que con las pruebas no es de asesinato sino homicidio, y considerando la declaracion espontanea de culpabilidad y la falta de instruccion del acusado y sumision a las autoridades, con estas circunstancias el acusado se declara culpable del delito de homicidio.
"‘Fiscal:jgc:chanrobles.com.ph
"‘I read over this case and I have no evidence to sustain the murder charge and we are willing to agree to the plea of guilty of the accused, that is homicide.
"‘Court:jgc:chanrobles.com.ph
"‘With the mitigating circumstance of plea of guilty and voluntary surrender . . .
Separate Opinions
PERFECTO, J., dissenting:chanrob1es virtual 1aw library
Petitioner complains that the recommitment order issued on October 4, 1941, by the Board of Indeterminate Sentence, for the unexpired portion of petitioner’s sentence in case No. 9587 of the Court of First Instance of Rizal, was illegal and premature, upon two grounds: (1) That his one day trip to Santa Rosa, Laguna, merely to get money from his relatives, did not constitute a violation of the condition of his parole that he was to live in Manila and not to change his residence during the period of his parole without the prior permission of the board, and (2) That the mere filing against petitioner of several criminal complaints, without final judgment of conviction did not constitute a violation of the condition that he was not to commit any crime and was to conduct himself in an orderly manner.
Petitioner’s position is well taken. By making the trip to Santa Rosa, petitioner did not cease to live in Manila and did not change his residence. Residence in one place is not incompatible with visits to other places for purposes other than to establish therein another residence. The condition not to commit any crime and to conduct himself in an orderly manner is not violated by the mere fact that several criminal complaints have been filed. Before final judgment of conviction, the accused cannot be considered as having been guilty of any crime. He is protected by the constitutional presumption of innocence until the contrary is proved, and the proof is the final sentence of conviction. (Section 1 [17], Art. III of the Constitution.)
Petitioner attacks the legality of the additional penalty of 10 years of imprisonment imposed upon him in CA — G. R. No. 79, because his conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency purposes, since said conviction is not for robbery, theft, estafa or falsification. The complaint is well founded. Illegal possession of counterfeit bills cannot be classified as robbery, theft, estafa or falsification. Petitioner is entitled to relief. We disagree with the majority’s position that the error cannot be corrected in a proceeding for habeas corpus. It is not a case of a simple harmless mistake. It is a case of manifest illegality which this Court is duty bound to correct if true justice is to be administered. The case of Paguntalan (57 Phil., 140) is invoked in support of the theory that appeal is the proper remedy. The theory is unreasonable and no authority can make it reasonable. All authorities have to bow before the authority of reason. To give your back to reason is to defeat justice.
Another ground of petitioner is that the information in CA — G. R. No. 79 did not contain any allegation that he was a habitual delinquent. But this contention is dismissed by the majority upon the theory that the error or defect of procedure "though it may have the effect of voiding the judgment, cannot be reviewed in habeas corpus proceedings wherein the only issue is whether or not the petitioner is entitled to release." This position appears to us to be untenable and absurd. Of course it is elemental that the issue in habeas corpus proceedings is whether or not the detained or imprisoned person is entitled to release, but this is only the conclusion to be arrived at and it has to be based on the result of the inquiry as to whether or not the detention or imprisonment is legal or illegal. The right to be released is merely a conclusion, and should be gathered from a result of the question as to the legality or illegality of the deprivation of liberty. When this deprivation is based on a judgment, the validity of the judgment becomes an issue essential in the habeas corpus proceedings. When a prisoner is deprived of his freedom by virtue of a void judgment he is entitled to be released on habeas corpus.
In support of the majority position the decision in Domingo v. Director of Prisons, G. R. No. L-1229 is invoked. That it is erroneous we have already shown in our opinion in said case which we quote:jgc:chanrobles.com.ph
"On July 31, 1946, petitioner was charged with the crime of murder, allegedly committed on July 6, 1946.
"On August 20, 1946, the accused was arraigned. His attorney made the statement that he advised the prosecution of the fact that provocation came from the victim, and that the information ought to be amended. The information without the amendment was read, and the accused entered a plea of not guilty.
"The following is the transcript of the stenographic notes taken during the hearing on August 30, 1946;
"‘RESUMPTION OF THE PROCEEDINGS ON AUGUST 30, 1946, IN THE MORNING.
"‘APPEARANCES:jgc:chanrobles.com.ph
"‘Assistant City Fiscal Guillermo Dacumos, for the prosecution; and,
"‘Attorney Celestino de Dios, for the defense.
"‘Sr. de Dios:jgc:chanrobles.com.ph
"‘El Agosto 26 yo he presentado una carta al Fiscal diciendo que la acusacion tenia entremanos . . . diciendo que con las pruebas no es de asesinato sino homicidio, y considerando la declaracion espontanea de culpabilidad y la falta de instruccion del acusado y sumision a las autoridades, con estas circunstancias el acusado se declara culpable del delito de homicidio.
"‘Fiscal:jgc:chanrobles.com.ph
"‘I read over this case and I have no evidence to sustain the murder charge and we are willing to agree to the plea of guilty of the accused, that is homicide.
"‘Court:jgc:chanrobles.com.ph
"‘With the mitigating circumstance of plea of guilty and voluntary surrender . . .
