G.R. No. L-66859 - People of the Philippines vs. German G. Lee, Jr., et al.

Manila

SECOND DIVISION

G.R. No. L-66859 September 12, 1984

PEOPLE OF THE PHILIPPINES,petitioner,
vs.
GERMAN G. LEE, JR., Branch 35, Regional Trial Court of Negros Oriental, and ROMAN AMIL,respondents.

The Solicitor General for petitioner.

Briones-Icao-Bato for private respondent.

AQUINO,J.:

This case is about the correctness of the sentence rendered by Judge German G. Lee, Jr., who imposed on Roman Amil, 57,a straight penalty of six years and one day of prision mayorfor homicide. He applied the rule inPeople vs. Nang Kay,88 Phil. 515,. involving a conviction for illegal possession of firearms which is punished by imprisonment for not less than five years and not more than ten years.

Nang Kay was sentenced to five years and one day since an indeterminate sentence would be unfavorable to him. It would lengthen his prison sentence.

But the instant case is not a prosecution under a special law. It is a homicide case. The application of the Indeterminate Sentence Law is mandatory if the imprisonment would exceed one year. It would be favorable to the accused (People vs. Alvarez, 101 Phil. 516). Fiscal Servilliano Elvinia, Jr. objected to the straight penalty.

Judge Lee found that the homicide was attended by the two generic mitigating circumstances provocation and voluntary surrender to the authorities. There was no aggravating circumstance. Hence, the penalty ofreclusion temporalmust be lowered by one degree or toprision mayor.ℒαwρhi৷Themaximumof the indeterminate sentence should be taken fromprision mayorminimum.

By applying the Indeterminate Sentence Law, the penalty has to be reduced by one degree or toprision correccionalfrom which theminimumsentence has to be taken.

The certiorari resorted to by Fiscal Elvinia is proper because his purpose is to correct a manifest error of the trial court amounting to excess of jurisdiction and tofavor the accusedThe proceeding did not place the accused in double jeopardy.

WHEREFORE,the petition is granted. The judgment of the trial court is modified. The accused is hereby sentenced to imprisonment of three (3) years ofprision correccionalmedium as minimum to seven (7) years ofprision mayoras maximum. No costs.

SO ORDERED.

Makasiar (Chairman), Escolin, Gutierrez, Jr.*and Cuevas, JJ., concur.

Concepcion, Jr. and Guerrero, JJ., are on leave.

Footnotes

Separate Opinions

ABAD SANTOS,J.,dissenting

The respondent judge should have applied the Indeterminate Sentence Law.

The penalty for homicide isreclusion temporalPresent two mitigating circumstances with no aggravating circumstance, the penalty is reduced toprision mayorin itsfull extent.The maximum of the indeterminate sentence should be taken fromprision mayorin itsfull extent,that is, anywhere from 6 years and 1 day to 12 years in the same manner that the minimum of the indeterminate sentence should be taken fromprision correccionalin itsfull extent.

It is not for this Court to impose a sentence on the accused, Roman Amil. What this Court should do is to direct the respondent judge to impose an indeterminate sentence on Amil within the allowable range. It should be noted that in the imposition of an indeterminate penalty a certain degree of discretion is reposed on the judge and he should not be deprived of this power.