2 - Fortuno vs. Director of PRisons, 80 PHil 178
2 - Fortuno vs. Director of PRisons, 80 PHil 178
2 - Fortuno vs. Director of PRisons, 80 PHil 178
THE DIRECTOR OF This is a petition for the writ of habeas corpus in which
PRISONS, respondent. the petitioner, a prisoner whose aggregate penalty is
more than twenty years of imprisonment counted from
1.HABEAS CORPUS; PAROLE; VIOLATION OF CONDITION
October 8, 1941, seeks his immediate release.
NOT TO COMMIT ANY CRIME; CONVICTION AFTER
RECOMMITMENT BUT BEFORE FILING OF PETITION FOR The first ground is that the recommitment order issued
HABEAS CORPUS.—The petitioner broke the condition by the Board of Indeterminate Sentence on October 4,
of his parole that he would not commit any crime, since 1941, directing the confinement of the petitioner for
he was prosecuted for and finally convicted of the series the unexpired portion of his maximum sentence in case
of estafa committed by him during the period of his No. 9587 of the Court of First Instance of Rizal (2 years,
parole. Petitioner's contention that the recommitment 4 months and 22 days), was illegal and otherwise
order was premature, because it came down before his premature, because (1) petitioner's one-day trip to
convictions, is now rather academic, even assuming that Santa Rosa, Laguna, merely to get money from his
final conviction is necessary in order to constitute a relatives, did not constitute a violation of the condition
violation of the condition in dispute. of his parole that he was to live in Manila and not to
change his residence during the period of his parole
2.ID.; ERROR IN COUNTING CERTAIN CONVICTION FOR
without the prior permission of the board, and (2) the
HABITUAL DELINQUENCY PURPOSES, NOT TO BE
mere filing against the petitioner of several complaints
CORRECTED IN.—An alleged error in counting a
for estafa, without final judgment of conviction, did not
conviction for illegal possession of counterfeit bills for
constitute a violation of another condition of his parole
habitual delinquency purposes, cannot be corrected in a
that he was not to commit any crime and was to
proceeding for habeas corpus, for "it was rather an
conduct himself in an orderly manner. Petitioner's
error of judgment and not an undue exercise of judicial
position is untenable. Without deciding whether or not
power which vitiates and nullifies the proceeding."
his visit to Santa Rosa without first securing the consent
3.ID.; ERROR AS TO FINDING OF HABITUAL of the board was a violation of one of the conditions of
DELINQUENCY, NOT TO BE COUNTED IN.—An alleged his parole, it may safely be held that he broke the other
error of the lower court in finding the petitioner an condition; namely, that he would not commit any crime,
habitual delinquent because the information did not since the petitioner was prosecuted for and finally
contain any allegation to that effect, is merely a defect convicted of the series of estafa, committed by him
of procedure and cannot be corrected in habeas corpus during the period of his parole. Petitioner's contention
proceedings. that the recommitment order was premature, because
it came down before his convictions, is now rather
4.ID.; SPECIAL ALLOWANCE FOR LOYALTY, NOT GIVEN academic, even assuming that final conviction is
TO PRISONERS WHO HAVE NOT ESCAPED.—The special necessary in order to constitute a violation of the
allowance for loyalty authorized by articles 98 and 158 condition in dispute.
of the Revised Penal Code refers to those convicts who,
having evaded service of their sentences by leaving the The second ground is that the additional penalty of 10
penal institution, give themselves up within two days years of imprisonment imposed upon the petitioner in
and not to those who have not escaped. CA—G. R. No. 79, was illegal and in excess of the
jurisdiction of the court, because his conviction for
ORIGINAL action in the Supreme Court. Habeas corpus. illegal possession of counterfeit bills should not be
The facts are stated in the opinion of the court. counted for habitual delinquency purposes, since said
conviction is not for robbery, theft, estafa, or
Fidel B. Fortuno in his own behalf. falsification. In other words, petitioner's contention is
First Assistant Solicitor General Roberto A. Gianzon and that his previous conviction for illegal possession of
Solicitor Ramon L. Avanceña for respondent. counterfeit bills was wrongly included. Such mistake,
even if true, cannot be corrected in a proceeding for
PARÁS, J.: habeas corpus, for there is virtually no difference
between the alleged error and that pointed out in
Paguntalan vs. Director of Prisons, 57 Phil., 140,
wherein it was held that the error of counting as I concur in the result.
separate convictions various convictions which should
PERFECTO, J., dissenting:
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 Petitioner complains that the recommitment order
and nullifies the proceeding." issued on October 4, 1941, by the Board of
Indeterminate Sentence, for the unexpired portion of
Petitioner also argues that the information in CA—G. R. petitioner's sentence in case No. 9587 of the Court of
No. 79 did not contain any allegation that he was an First Instance of Rizal, was illegal and premature, upon
habitual delinquent, though it was alleged therein that two grounds: (1) That his one-day trip to Santa Rosa,
he was a recidivist. Apart from the absence of proof on Laguna, merely to get money from his relatives, did not
the point, and from the legal presumptions that the constitute a violation of the condition of his parole that
court acted lawfully in the exercise of its jurisdiction and he was to live in Manila and not to change his residence
performed its duty regularly (section 69, pars. m and n, during the period of his parole without the prior
Rule 123), the alleged defect may be likened to that permission of the board, and (2) That the mere filing
referred to in Domingo y Reyes vs. Director of Prisons, against petitioner of several criminal complaints,
44 Off. Gaz., 2201, wherein we said that "the allegation, without final judgment of conviction did not constitute
if true, that the judgment of conviction was rendered a violation of the condition that he was not to commit
without a plea of guilty properly entered by the accused any crime and was to conduct himself in an orderly
to the lesser offense of homicide, is merely a defect of manner.
procedure, not of jurisdiction, though it may have the
effect of voiding the judgment," and "cannot be Petitioner's position is well taken. By making the trip to
reviewed in habeas corpus proceedings wherein the Santa Rosa, petitioner did not cease to live in Manila
only issue is whether or not the petitioner is entitled to and did not change his residence. Residence in one
release." place is not incompatible with visits to other places for
purposes other than to establish therein another
The third ground is that the petitioner is entitled to a residence. The condition not to commit any crime and
special allowance of one-fifth of his aggregate penalty to conduct himself in an orderly manner is not violated
on account of his failure to escape from his place of by the mere fact that several criminal complaints have
confinement during the war. Our ruling on this feature been filed. Before final judgment of conviction, the
of the case has to be adverse to the petitioner, accused cannot be considered as having been guilty of
inasmuch as we have already held that "the special any crime. He is protected by the constitutional
allowance for loyalty authorized by articles 98 and 158 presumption of innocence until the contrary is proved,
of the Revised Penal Code refers to those convicts who, and the proof is the final sentence of conviction.
having evaded service of their sentence by leaving the (Section 1 [17], Art. III of the Constitution.)
penal institution, give themselves up within two days,"
and not to those who have not escaped. (Artigas Losada Petitioner attacks the legality of the additional penalty
vs. Acenas, 44 Off. Gaz., 2694.) of 10 years of imprisonment imposed upon him in CA—
G. R. No. 79, because his conviction for illegal
It appearing that the petitioner has not yet served his possession of counterfeit bills should not be counted for
total term of imprisonment, as the periods sought by habitual delinquency purposes, since said conviction is
him to be deducted are not allowable, the petition will not for robbery, theft, estafa or falsification. The
be, as the same is hereby, denied without costs. So complaint is well founded. Illegal possession of
ordered. counterfeit bills cannot be classified as robbery, theft,.
estafa or falsification. Petitioner is entitled to relief. We
Moran, C. J., Pablo, Bengzon, Briones, Padilla, and
disagree with the majority's position that the error
Tuason, JJ., concur.
cannot be corrected in a proceeding for habeas corpus.
FERIA, J.: It is not a case of a simple harmless mistake. It is a case
of manif est 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
" 'APPEARANCES:
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. " 'Assistant City Fiscal Guillermo Dacumos, for the
prosecution; and,
Another ground of petitioner is that the information in
CA—G. R. No. 79 did not contain any allegation that he " 'Attorney Celestino de Dios, for the defense.
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 "'Sr. de Dios:
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." "'El Agosto 26 yo he presentado una carta al Fiscal
This position appears to us to be untenable and absurd. diciendo que la acusación tenía entremanos * * *
Of course it is elemental that the issue in habeas corpus diciendo que con las pruebas no es de asesinato sino
proceedings is whether or not the detained or homicidio, y considerando la declaración espontánea de
imprisoned person is entitled to release, but this is only culpabilidad y la falta de instrucción del acusado y
the conclusion to be arrived at and it has to be based on sumisión a las autoridades, con estas circunstancias el
the result of the inquiry as to whether or not the acusado se declara culpable del delito de homicidio.
detention or imprisonment is legal or illegal. The right
"'Fiscal:
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
" 'I read over this case and I have no evidence to sustain
deprivation is based on a judgment, the validity of the
the murder charge and we are willing to agree to the
judgment becomes an issue essential in the habeas
plea of guilty of the accused, that is homicide.
corpus proceedings. When a prisoner is deprived of his
freedom by virtue of a void judgment he is entitled to "'Court:
be released on habeas corpus.