People v Legaspi

G.R. NO. 136164-65, April 20, 2001.

Facts: The case follows where, the complainant Honorata Ong, while sleeping inside
her house with her daughters at 2:00 in the morning of February 11, 1997, was
awakened when the accused, Legaspi, entered the house. Armed with a knife, the
accused threatened and forced Honorata to have sex with him. Thereafter, the accused
asked for money. In fear, Honorata gave an amount of 500 pesos.
The information filed against the accused did not indicate the presence of
aggravating circumstance of dwelling and nighttime. Nevertheless, the court found the
accused guilty of rape aggravated by dwelling and nighttime, and of robbery aggravated
by dwelling; and thereupon, imposed upon him the supreme penalty of death for the
rape, and an indeterminate penalty of six months to nine years for the robbery
Issue: WON the court erred in its decision.
Held: Yes. It is to be noted that the appreciation by the trial court of the aggravating
circumstances of dwelling and nighttime, despite the non-allegation thereof in the
Information, resulted in the imposition of the supreme penalty of death upon accused.
Such aggravating circumstance must be alleged in the information, otherwise the
Court cannot appreciate it. The death sentence being irrevocable, we cannot allow the
decision to take away life to hinge on the inadvertence or keenness of the accused in
predicting what aggravating circumstance will be appreciated against him.
Parenthetically, the above rule is inapplicable for the crime of robbery committed
by accused-appellant, the same not involving the imposition of the death penalty. For
said crime, what remains applicable is the old rule that generic aggravating
circumstances if duly proven in the course of the trial could be taken into account by the
trial court in determining the proper imposable penalty, even if such circumstances were
not alleged in the Information.
PEOPLE v MARIO CAPALAC
G.R. No. L-38297 October 23, 1982
Facts: The case follows where on September 20, 1970, Jimmy Magasto stabbed
Moises Capalac. Magasto, in an attempt to escape, was confronted by brothers of
Moises namely; Jesus Capalac and Mario Capalac. Magasto raised his hands as a sign
of surrender, but they were not to be appeased. He was pistol-whipped by appellant
Mario Capalac. After he had fallen to the ground, Jesus Capalac stabbed Magasto on
the chest three or four times causing his death.
After trial duly held, Mario Capalac was convicted of murder. The lower court
found that the crime was committed with evident premeditation and treachery. The
lower court also held that appellant took advantage of his position as a police officer and
employed means or brought about circumstances which added ignominy to the natural
effects of his act. It sentenced him to suffer the death penalty.
Issue: WON the lower court erred in its decision
Held: Yes. Insofar as evident premeditation is concerned, the record contains no
evidence showing that the defendant had, prior to the moment of its execution, resolved
to commit the crime. it was emphasized that it should not be "premeditation" merely; it is
"evident" premeditation
It is also well to stress that they were prompted by their desire to avenge their
brother. They did what they felt they had to do to redress a grievance. It cannot be said,
therefore, that they deliberately employed means to add ignominy to the natural effects
of the act. It is quite apparent that all they were interested in was to assure that there be
retribution for what was done to their brother.
The mere fact that appellant Mario Capalac is a member of the police force
certainly did not of itself justify that the aggravating circumstance of advantage being
taken by the offender of his public position be considered as present. He acted like a
brother, instinctively reacting to what was undoubtedly a vicious assault on his kin that
could cause the death of a loved one.
People v. Gapasin,
G.R. No. 73489, 25 April 1994
Facts: The case follows where on October 6, 1979, while the victim Jerry Calpito was
walking home after attending a “pamisa”, he was shot by the appellant with an armalite.
When Calpito fell on the ground, appellant fired more shots at him causing his
immediate demise. Calpito sustained four-bullet wound according to Dr. Bernardo
Layugan and that the victim was in a standing position when he was shot by someone
positioned at his right.
The appellant contended that he was issued a mission order to investigate a
report regarding the presence of unidentified armed men and he was informed that
Jerry Calpito had an unlicensed firearm. The following day, the appellant planned that in
order to avoid disturbance in the “pamisa”, they would wait for the victim by positioning
themselves inside a yard. Consequently, as the victim passed, the appellant asked what
was bulging in his waist. However, the victim drew his firearm from the waist and fired
twice at appellant. He missed because appellant dropped to the ground simultaneously
firing his armalite.
Issue: WON aggravating circumstances be appreciated in this case.
Held: Yes. Evident premeditation was indubitably proven by the evidence showing that
the execution of the criminal case was preceded by cool thought and reflection.
Appellant's resolution to carry out the criminal intent during the space of time sufficient
to arrive at a clear judgment was shown.
The trial court properly appreciated taking advantage of public position as an
aggravating circumstance. Appellant, a member of the Philippine Constabulary,
committed the crime with an armalite which was issued to him when he received the
mission order.
People v. Tiongson,
G.R. No. L-35123-24, 25, July 1984
Facts: At about 5:30 o'clock in the afternoon of October 26, 1971, the accused Rudy
Tiongson escaped from the Municipal Jail of Bulalacao, Oriental Mindoro, together with
George de la Cruz and Rolando Santiago, where they were detained under the charge
of Attempted Homicide. While in the act of escaping, the said Rudy Tiongson killed Pat.
Zosimo Gelera, a member of the police force of Bulalacao, Oriental Mindoro, who was
guarding the said accused, and PC Constable Aurelio Canela of the PC Detachment
stationed in Bulalacao, Oriental Mindoro, who went in pursuit of them.
Upon arraignment, the accused pleaded guilty to two information stating that the
commission of the offense was qualified by the circumstance of treachery, and
aggravated by the circumstances of evident premeditation, in contempt of or with ingult
to the public authorities, nocturnity, committed in an uninhabited place and with abuse
of superior strength.
Issue: WON the aggravating circumstances mentioned in the information be
appreciated.
Held: No. it does not appear how and in what position the victim was when he was killed
so that it cannot be said for certain that the accused had adopted a mode or means of
attack tending directly to insure or facilitate the commission of the offense without risk to
himself arising from the defense or retaliation which the victim might put up. The
circumstances qualifying or aggravating the act of killing a human being must be proved
in an evident and incontestable manner, mere presumptions or deductions from
hypothetical facts not being sufficient to consider them justified.
Evident premeditation must be ruled out in view of the absence of sufficient proof
that a plan to kill the victims existed, the execution of which was preceded by deliberate
thought and reflection
The aggravating circumstance that the crimes were committed in contempt of or
with insult to the public authorities cannot also be appreciated since Pat. Gelera and PC
Constable Canela were the very ones against whom the crime were committed.
Finally, the aggravating circumstance of abuse of superior strength must also be
ruled out since there is no direct evidence that the accused employed superior strength
in the killing of Pat. Gelera. The accused was then a detainee and was unarmed while
Pat. Gelera had his service pistol with him.
People v. Magdueño,
G.R. No. L-68699, 22, September 1986
Facts: The case follows where On October 15, 1980, past 8:00 o'clock in the morning,
as soon as the late Fiscal Fernando M. Dilig had placed himself at the driver's seat
inside his jeep parked near his house at the corner Roxas and D. Mendoza Streets,
Puerto Princesa City, all of a sudden, two successive gunshots burst into the air,
inflicting two fatal wounds that instantaneously caused his death. The witnesses clearly
identified the accused as the one who shot Fiscal Fernando.
The lower court convicted the accused of murder with aggravating circumstance
of treachery, evident premeditation that the crime was committed in consideration of a
price, reward or promise; and that the crime was committed in contempt of or with insult
to public authorities.
Issue: WON the lower court erred in appreciating the aggravating circumstances.
Held: No. Treachery in the commission of the crime is clearly established by the record.
The appellant fired two successive shots at the defenseless Fiscal Dilig while the latter
was still seated in his jeep. According to the autopsy, on the victim; both wounds were
fatal and that "death will definitely occur."
The evidence showing that the appellant was a contract or hired killer especially
contacted in Manila to do a job in Puerto Princesa is strengthened by testimony.
Magdueno was a leader of the Sputnik Gang. Magdueño was nicknamed "Mande" and
served as an attendant in the prison hospital and that Magdueño was known as a
TIRADOR or killer while in prison
However, the aggravating circumstance of commission of a crime with insult to
public authority does not seem to be borne by the records. For this aggravating
circumstance to be considered it must not only be shown that the crime was not
committed in the presence of the public authority but also that the crime was not
committed against the public authority himself. In the instant case Fiscal Dilig, the public
authority involved in the crime, was the victim. Hence, the lower court, erred in including
commission of the crime with insult to public authority as an aggravating circumstance.
People v. Tac-an
G.R. Nos. 76338-89, 26 February 1990.

Facts: The victim, Francis Ernest Escano, and the accused Renato Tac-an were close
friends as they were both members of Bronx gang. When Francis withdrew from the
gang, his friendship with Renato became sour and resulted to quarrels.
On December 14, 1984, while attending a class, the Francis and Renato had a
quarrel. Renato slipped out of the room and went home to get a gun. Upon arriving,
Renato fired at Francis, hitting a notebook. Renato fired a second time, this time hitting
the blackboard in front of the class. At third time, hitting the wall. The fourth shot hit
Francis on the head and fell face down. Upon realizing that Francis is still alive, Renato
shot the chest of Francis causing his instantaneous death.

Issue: WON there are presence of aggravating circumstance of treachery, evident

Held: In treachery, Yes. At the time of the attack, the deceased was not aware of any
impending assault neither did he have any means to defend himself. The attack was so
sudden and so unexpected. the accused consciously conceived that mode of attack.
The accused fired at Francis again and again and did not give him a chance to defend
himself. Lastly, the deceased was not armed. He was totally defenseless.
On evident premeditation, No. It was barely fifteen (15) minutes had elapsed
from the time Renato left his English III class and the time he returned with a gun.
On contempt of or with insult to the public authorities, No. While under Art. 152,
teacher or professor of a public or recognized private school is deemed to be a "person
in authority," such teacher or professor is so deemed only for purposes of application of
Articles 148. It is not regarded as a “public authority within the meaning of paragraph 2
of Article 14.
People v. Diaz
G.R. No. L-24002, 21 January,1974.

Facts: The case follows where on Sept. 4, 1963 while Remegia Carasos and Anita
Pacaira were gathering camotes, Francisco Diaz appeared embraced Remegia from
behind and against her will and held her breast. Anita came to aid and struck Diaz with
a bolo on the head.
The two girls hastened to the house of their grandfather, Quintin Tadia and
reported the lascivious act of Diaz. The following day, while Tadia, together with his
granddaughters, was on their way to file a complaint, Diaz and his younger brother
Gerardo appeared when Tadia was ascending the hill. The Gerardo shot Tadia with a
locally made shotgun called “bardog”. Consequently, Diaz stabbed Tadia repeatedly
stabbed him in different parts of his body causing his death.

Issue: WON treachery and evident premeditation should qualify the killing as murder.

Held: Yes. There was treachery because the brothers made a deliberate surprise or
unexpected assault on Tadia. They literally ambushed him. They waited for him on the
cliff, a high ground which rendered it difficult for him to flee or maneuver in his defense.
The appellants resorted to means of execution which directly and specially insured the
killing without any risk to themselves arising from any defense which the victim could
have made. Actually, he was not able to make any defense, unarmed and attacked
unaware as he was. The treacherous mode of attack is incontrovertible.
Evident premeditation should likewise qualify. It should be recalled that the
embracing incident on the afternoon of September 4, 1963. It may reasonably be
assumed that Francisco Diaz became aware that same afternoon that Tadia, who was
his neighbor, was going to lodge a complaint against him. That would explain why early
in the morning of the next day, he and his brother were already in the hill or cliff waiting
for Tadia. There was a sufficient interval of time, more than one-half day, within which
appellant Francisco Diaz had full opportunity for meditation and reflection and to allow
his conscience to overcome the resolution of his will.
People v. Arizobal
G.R. No. 135051-52, 14 December 2000

Facts: The case follows where on March 24, 1994, while the victim, Laurencio Gimenez,
together with his family were sleeping in their house, were awakened and confronted by
the accused-appellant in this case. The accused barged into their house and ransacked
an amount of 8,000. Before leaving, Laurencio was ordered to go with them.
Immediately thereafter, Laurencio was shot to death. The same circumstance occurred
to Jimmy Gimenez on that same night where after the same intruders ransacked their
household, killed Jimmy Gimenez before leaving.
The lower court convicted the accused of special complex crime of robber with
homicide and was aggravated by a band, with treachery, and by dwelling.
Issue: WON the lower court erred in the appreciation of aggravating circumstances.
Held: The trial court is correct in appreciating dwelling as an aggravating
circumstance. In the case at bar, the robbers demonstrated an impudent disregard of
the inviolability of the victims' abode when they forced their way in, looted their houses,
intimidated and coerced their inhabitants into submission, disabled Laurencio and
Jimmy by tying their hands before dragging them out of the house to be killed.
In treachery, yes. The accused stand charged with, tried and convicted of
robbery with homicide. This special complex crime is primarily classified in this
jurisdiction as a crime against property, and not against persons, homicide being merely
an incident of robbery with the latter being the main purpose and object of the criminals.
As such, treachery cannot be validly appreciated.
While it appears that at least five (5) malefactors took part in the commission of
the crime, the evidence on record does not disclose that "more than three" persons
were armed, and robbery in "band" means "more than three armed malefactors united
in the commission of robbery." Nowhere in the records can we gather that more than
three (3) of the robbers were armed. Hence, "band" cannnot be aggravating where no
proof is adduced that at least four (4) of the five (5) perpetrators involved in this case
were armed.
People v. Daniel
G.R. No. L-40330, 20, November 1978
Facts: The case had its outset where on Sept. 20, 1965, while the victim, Margarita
Paleng, was on his way to her boarding house, the accused, Amado Daniel, followed
her. Despite the victim’s effort to avoid the accused, the latter was still able to reach her.
Upon reaching her boarding house, the accused pulled a knife and threatened the
victim. Thereupon, the accused held her hair with his left hand and forced her to lie
down in bed and immediately thereafter, succeeded in having carnal knowledge with the
victim.
The lower court convicted the accused of rape with aggravating circumstance of
dwelling.
Issue: WON the aggravating circumstance of dwelling be appreciated.
Held: Yes. Although Margarita was merely renting a bedspace in a boarding house, her
room constituted for all intents and purposes a "dwelling" as the term is used in Article
14(3), Revised Penal Code. It is not necessary, under the law, that the victim owns the
place where he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the place is
his home the sanctity of which the law seeks to protect and uphold.
People v. Apduhan
G.R. No. L-19491, 30 August, 1968
Facts: The case follows where on the evening of May 23, 1961, the accused in this
case together with other 5 persons, while armed with unlicensed firearms and other
deadly weapons, entered the dwelling house of Honorato Miano and Antonia Miano,
which was also the dwelling house of their children, the spouses Geronimo Miano and
Herminigilda de Miano. Therein, the accused hack and shoot Geronimo Miano and
another person by the name of Norberto Aton causing their death. Thereafter,
ransacked an amount of 322 pesos.
The lower court convicted the accused with four aggravating circumstances
namely (1) band; (2) dwelling; (3) nighttime; and (4) abuse of superior strength.

Issue: WON the lower court erred in the appreciation of aggravating circumstances.

Held: No. In the circumstance of abuse of superiority is withdrawn since the offense of
robbery with homicide was committed by a band, the element of cuadrilla necessarily
absorbs the circumstance of abuse of superior strength. The element of band is
appreciated when the offense is committed by more than three armed malefactors
regardless of the comparative strength of the victim or victims.
Dwelling is aggravating in robbery with violence or intimidation of persons. The
rationale behind this pronouncement is that this class of robbery could be committed
without the necessity of transgressing the sanctity of the home. Morada is inherent only
in crimes which could be committed in no other place than in the house of another, such
as trespass and robbery in an inhabited house.
Nocturnity is aggravating when it is purposely and deliberately sought by the
accused to facilitate the commission of the crime or to prevent their being recognized or
to insure unmolested escape. In the case at bar, the accused took advantage of the
nighttime in the perpetration of the offense as they waited until it was dark before they
came out of their hiding place to consummate their criminal designs.
People v. Mandolado
G.R. No. L-51304-05, 28, June 1983

Facts: The accused are trainees of the AFP who are passengers of a bus bound for
Midsayap, North Cotabato. Upon arriving at the terminal, they got acquainted and
decided to drink ESQ rum. An hour later, accused Mandolado got drunk, grabbed
his .30 caliber machine gun and started firing. The accused ran away and boarded a
jeep driven by the victim, Herminigildo Tenorio. Upon learning that the jeep was bound
for Cotabato City, the accused got angry, "cocked" his gun and ordered the driver to
stop. Thereupon, accused Mandolado fired his .30 caliber machine gun at and hit the
occupants of the jeep. Accused Ortillano likewise, fired his armalite, not at the
occupants of said jeep but downwards hitting the ground. Thereafter, the accused ran
away from the scene and boarded another vehicle.
The lower court convicted the accused with aggravating circumstances of
treachery, evident premeditation, and the use of superior strength.

Issue: WON the appreciation of aggravating circumstances by the lower court is proper.

Held: Yes. It is quite clear and explicit that when appellants alighted from the jeep, the
accused Mandolado immediately fired his .30 caliber machine gun at the occupants of
the jeep and both of them died instantaneously on the spot, and from this sudden
means or manner of attack, it can reasonably be concluded that it tended directly to
insure its execution without risk to the appellant-assailant and also deprive the victims of
any chance or opportunity to defend themselves.
We also rule that the particular means employed by the accused was deliberately
sought and not a mere accidental circumstance resorted to on the spur of the moment
on the basis of the evidence that the appellant had previously and repeatedly fired
his .30 caliber machine gun at the bus terminal in Midsayap and that appellants waited
for some time riding on board the jeep driven by Tenorio before they ordered the jeep to
stop, alight therefrom and then shoot the occupants therein.

People v. Garcia
G.R. No. L-30449, 31 October 1979

Facts: The case follows where on 3:00 o'clock in the morning of Oct. 19, 1968, Corazon
Dioquino learned that her brother Apolonio was having a drinking spree with his
gangmates and proceeded to fetch him. On her way, Corazon saw her brother fleeing a
group of about seven persons, including the two accused, Antonio Garcia and Reynaldo
Arviso who were carrying a long sharp instrument. Corazon saw the group catch up with
her brother and maltreat him. Immediately afterwards, the group scampered away in
different directions and Antonio was seen sitting astride the prostrate figure of Apolonio,
stabbing the latter in the back with his long knife.
The court convicted the accused of murder with aggravating circumstances of
nighttime; superior strength; and treachery.

Issue: WON the lower court erred in appreciating the attending aggravating
circumstances.
Held: In treachery, Yes. In this case,,the correct qualifying circumstance is not
treachery, but abuse of superiority. Here we are confronted with a helpless victim killed
by assailants superior to him in arms and in numbers. But the attack was not sudden
nor unexpected, and the element of surprise was lacking. The victim could have made a
defense; hence, the assault involved some risk to the assailants. There being no
showing when the intent to kill was formed, it cannot be said that treachery has been
proven.
In nighttime, yes. There are two tests for nocturnity as an aggravating
circumstance: the objective test, under which nocturnity is aggravating because it
facilitates the commission of the offense; and the subjective test, under which nocturnity
is aggravating because it was purposely sought by the offender. These two tests should
be applied in the alternative. The criminal assault on the victim at 3:00 a.m. was invited
by nocturnal cover, which handicapped the view of eyewitnesses and encouraged
impunity by persuading the malefactors that it would be difficult to determine their
Identity because of the darkness and the relative scarcity of people in the streets. There
circumstances combine to pass the objective test, hence, aggravating.

People v. Rodas
G.R. No. 175881, 28 August 2007

Facts: On about 8:00 in the evening of Aug. 9, 1996 the victim, Titin Asenda, was
standing within the vicinity where a benefit dance was being held. Suddenly, the
accused surrounded the victim and without a word, one of the accused Charlito Rodas,
stabbed the him. Armando Rodas then clubbed Titing with a chako hitting him at the left
side of the nape causing him to fall. Thereafter, Jose Rodas, Sr. handed to Jose Rodas,
Jr. a bolo which the latter used in hacking Titing. Titing died on the spot.
The lower court convicted the accused with aggravating circumstances of
treachery and nighttime.

Issue: WON the lower court erred in appreciating the aggravating circumstances.
Held: Of treachery, no. In this case, the victim was completely unaware that he was
going to be attacked. He was not forewarned of any danger to himself as there was no
altercation or disagreement between the accused and the victim. The suddenness of
the attack, the number of the accused and their use of weapons against the unarmed
victim prevent the possibility of any defense or retaliation by the victim. The fact that the
victim was already sprawled on the ground and still Jose Jr. hacked him with a bolo
clearly constitutes treachery.
Of nighttime, yes. This circumstance is considered aggravating only when it
facilitated the commission of the crime, or was especially sought or taken advantage of
by the accused for the purpose of impunity. The essence of this aggravating
circumstance is the obscuridad afforded by, and not merely the chronological onset of,
nighttime. Although the offense was committed at night, nocturnity does not become a
modifying factor when the place is adequately lighted and, thus, could no longer insure
the offender’s immunity from identification or capture. In the instant case, the
prosecution failed to show that nighttime facilitated the commission of the crime, or was
especially sought or taken advantage of by the accused for the purpose of impunity.
The crime scene was sufficiently lighted by a Petromax which led to the identification of
all the accused.

People v. Damaso
G.R. No. L-30116, 20, November 1978

Facts: On about 9 o'clock in the evening of November 21, 1959, the accused entered
the home of Donata and Victoriano and threatened them. Donata was then ordered to
open an "aparador" from which the two men took valuables. While, Donata and
Victoriano could hear the movements and voices of some three to four other persons
beneath the house. The two men brought Catalina Sabado down from the house and
then asked where they could find Susana Sabado, Donata's another daughter.
Thereafter, Donata heard the men opening the door to Susana's store. After several
minutes, feeling that the intruders had left, Donata untied the hands of Victoriano and
asked him to go to the store to see if her daughters were there. When the two women
could not be found. The following morning, the two women were found in a sugar
plantation.
The lower court convicted the accused with aggravating circumstances of armed
band, treachery and uninhabited place
Issue: WON the trial court erred in its appreciation of the aggravating circumstances.
Held: No. The aggravating circumstance of band exists whenever more than three
armed malefactors act together in the commission of an offense. at least three of the
accused-appellants, namely Eugenio, Alviar, and Gregorio, were armed during the
commission of the crime. He doubts, however, whether accused Damaso carried any
weapon and whether the "two stones" carried by accused Espejo fall under the category
of "arms." But even granting that Espejo's stones do not constitute arms, the
prosecution presented the following evidence to show that Damaso was also armed
and, as such, there were more than three of the accused who were armed.
In treachery, no. The fact that the bodies of Catalina and Susana were found
dead with their arms tied behind their backs as well as the admission of Gregorio in his
confession that he killed the sisters while their arms were held by Eugenio and Damaso
concludes that the killing of the two women was done under treacherous circumstances.
In the uninhibitedness, no. Considering that the killing was done during nighttime
and the sugarcane in the field was tall enough to obstruct the view of neighbors and
passersby, there was no reasonable possibility for the victims to receive any assistance.
That the accused deliberately sought the solitude of the place is clearly shown by the
fact that they brought the victims to the sugarcane field although they could have
disposed of them right in the house of Donata Rebolledo where they were found.

People v. Baldera
G.R. No. L-2390, 24 April 1950

Facts: The case follows where at about 4 a.m. on December 23, 1947, a bus loaded
with passenger was held up by six armed men identified as the accused. As a result,
several passengers, among them Jose Cabrera, Jose Pastor and Francisco Mendoza,
were wounded. After the firing had ceased, appellant got on the bus and, threatening
the passengers with his gun, took money from the passengers. Appellant then alighted
and ordered the bus to proceed, whereupon the driver headed to report the incident to
the authorities. The wounded were taken to the hospital, where Jose Cabrera died from
his wounds on the following day. Jose Pastor, who was wounded, was cured, while
Francisco Mendoza's gunshot wound in the right shoulder healed.
The lower court convicted the accused with aggravating circumstance of a band
and recidivism. One of the accused, Pedro Baldera seeks for review.
Issue: WON the lower court erred in the appreciation of aggravating circumstances.
Held: In the commission in a band, no. The fact that more than three armed men in the
group that held up the bus is established by the uncontradicted testimony of one of the
government witnesses. And the point is really not material because in the crime of
robbery with homicide it is not essential that the robbery be in band, although that
circumstance may be taken into account as an aggravation in the imposition of the
penalty.
In recidivism, yes. His previous conviction for theft, it appearing that crime was
committed on or about December 30, 1947 while the offense now charged took place
seven days before that date.
People v. Melendrez
G.R. No. 39913, 19 December 1933

Facts: The case follows where on June 15, 1933, the accused forcibly broke open the
door of the store belonging to and occupied by Tin Bun Boc. Once inside, took, stole
and carried away therefrom the following personal properties of the said Tin Buc Boc
amounting to P76.68 Ph. Currency.
The accused Ricardo Melendrez y Nieto is a habitual delinquent, he having been
previously convicted by final judgment of competent courts twice of the crime of theft.
Whereupon, the accused is found guilty of the offense.

Issue: WON the aggravating circumstance of recidivism should take account.