The appellant was  convicted in the Court of First Instance of Manila for  the  crime of robbery  and sentenced to three years, eight months and one day of prision correctional and to indemnify J. W.  Flannery in the sum of P25 and A. J. Wise in  the sum of 20 centavos, and to pay the costs.  He was also sentenced to an  additional penalty of three years for habitual delinquency.  No member of this court doubts that the  appellant was properly found guilty of the offense charged.  The only question to be considered relates to the penalty  to be assessed.

The facts  of this case bring the offense under the provisions of article 293  and article 294, paragraph  5, of the Revised Penal Code, the prescribed penalty being prision correctional to prision mayor in its medium degree, that is to say, from three years, eight months and one day to six years and ten  months.  But  the Attorney-General  calls attention  to  the aggravating circumstances  of nocturnity and recidivism and recommends that the penalty which the law prescribes in such a case  must  be in  its maximum degree, that is, from  six years, ten months and one day to ten years.  We concur in this view  and assess the original penalty  at six  years,  ten months and one day.

Coming now to the question of the additional penalty for habitual  delinquency applicable in  this  case, article 62, paragraph 5 (a), of the Revised Penal Code provides:

"En caso de ser convicto por tercera vez, el culpable sera castigado  con la pena  sefialada  por la ley  al delito de que fuese ultimamente convicto y con la pena adicional de pri- sion correccional en sus grados medio y maximo  *  *  *" that is to  say, from two years, four months and one day to six years.  The additional penalty imposed  by the  court below falls within said limits and is affirmed.

The Attorney-General,  however, argues that the  additional  penalty  for habitual delinquency should be in the maximum  degree,  that is, from four  years, nine months and eleven days to six years, his argument being that the principal  penalty having  been  imposed  in the maximum degree, the additional penalty must be  in the same degree. We do not concur in this view  of the  law.

In the case of People vs. Tanyaquin (alias Arcadio Rico), No. 37124, promulgated October 28, 1932,¹ we had occasion to consider article 62,  paragraph 5, of the Revised  Penal Code, and we indicated there our view that mitigating and aggravating circumstances, as defined in articles 13 and 14 of the Revised Penal Code, must be taken into consideration in determining the degree of the principal penalty and be given the definite effects prescribed in the Revised Penal Code.  But said mitigating and  aggravating circumstances do not determine the degree of the additional penalty to be imposed for habitual delinquency.  Additional penalties for habitual delinquency under article 62,  paragraph 5, are to be imposed according to the  sound discretion of the  court within the limits fixed by said article.

Mitigating and  aggravating circumstances being part of the circumstances of the whole case, must certainly be taken into consideration, but not in the sense that they determine by  force of law what the degree of the additional penalty shall be.  The additional penalty is determined by the rule of reasonableness, upon a just appreciation of all the facts and circumstances of the case.  To the criticism that such a discretion is uncontrolled and arbitrary, the answer is that it is' not and  need not be any more so than in case of other powers,  executive, legislative, and judicial, that must be left to the discretion of competent men who  have taken a solemn oath to perform their duty faithfully.

Habitual delinquency is not a crime in itself, capable of exact definition.  It is only a  factor in determining  a total penalty.  It is  impossible  to lay down  any  mechanical criteria for fixing  the additional penalty for habitual delinquency within the limits fixed by article 62, paragraph 5. All the facts and circumstances brought to light  at the trial should be taken into account; and if after the guilt of the accused is  established, the court wishes to have information as to the  antecedents of the accused or other personal facts not appearing in the record so that it may the better determine what is a just and  proper additional penalty, we  see no reason why the  court may not require such additional evidence to enable it to act more intelligently in determining the additional penalty.

The judgment of the court  below* is affirmed with costs de oficio.  So ordered.

Street, Villa-Real, Abad Santos, Hull, Vickers, and Imperial, JJ., concur.

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DISSENTING
AVANCEÑA C. J., with whom concurs VILLAMOR, J. :

I dissent for the reasons stated in my dissenting opinion in case No. 37124,¹ entitled "The People of the Philippine Islands vs. Arcadio Tanyaquin".

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¹ Page 426, ante.
¹ Page 430, ante.