1. CRIMINAL LAW; MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER; FAILURE TO ESTABLISH IT BEFORE TRIAL COURT MUST BE SATISFACTORILY EXPLAINED. — A prayer in a criminal appeal that the case be remanded to the lower court to afford the defendant-appellee an opportunity to prove a mitigating circumstance of voluntary surrender will not be granted where there is nothing in the record to even suggest that appellant had voluntarily surrendered to the authorities and his counsel had not even tried to explain why he had failed to make such a move in the lower court, nor is there even an affidavit of appellant in support of his alleged voluntary surrender.

Accused of qualified theft of goods or effects valued P250, appellant Leandro Monte y Castro, upon arraignment, pleaded guilty to said charge, whereupon the Court of First Instance of Manila rendered judgment sentencing him to an indeterminate penalty ranging from four (4) years, two (2) months and one (1) day of prision correccional to eight (8) years and one (1) day of prision mayor, and to pay the costs. In due course, thereafter, Monte filed the corresponding notice of appeal. Appellant now alleges, that "sensing his guilt", he had "voluntarily and spontaneously surrendered to the . . . authorities", that his "voluntary confession of guilt before the Hon. Trial Court automatically suppressed his right to introduce evidence", and that said court had committed a "clear-cut error" in not considering in his favor the mitigating circumstance of voluntary surrender to the authorities, for which reason he prays that the case be remanded to the lower court to afford him an opportunity to prove said mitigating circumstance.

There is nothing, however, in the record to even suggest that appellant had voluntarily surrendered to the authorities. Although he was not assisted by counsel — he having expressly waived the right to have one — when his plea of guilty was entered and the decision appealed from rendered, the record shows, that his notice of appeal had been filed by his present counsel. Had appellant really surrendered to the authorities voluntarily, his counsel could have, and, in all probability, would have filed a motion, in the court of first instance, for an opportunity to establish said mitigating circumstance. Counsel has not even tried to explain why he had failed to make such move in the lower court. There is not even an affidavit of appellant in support of his alleged voluntary surrender. In the absence of such affidavit and of satisfactory explanation that appellant’s failure to seek, in the lower court, a chance to prove the circumstance adverted to above had been due to excusable neglect, the relief prayed for cannot be granted.

Considering, further, that, on the basis of the record, the decision appealed from is in accordance with the facts and the law, said decision must be, as it is hereby affirmed, with costs against the appellant. It is so ordered.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.