G.R. No. 1401. January 27, 1904

The accused are charged with the crime of brigandage. The Court of
First Instance sentenced Esteban Bare and Donato Rodriguez to the
death penalty, Vicente Armiso to that of life imprisonment (cadena
perpetua), and Fulgencio Enano and Bernardo Olbis to twenty
years of imprisonment. The cause has been brought to this court for
review of the judgment with respect to the first two defendants, and
on appeal as to the latter three. The other defendants, twenty-seven
in number, were either acquitted by the court below or failed to
appeal from its judgment, which, as to them, has accordingly become
final.

The guilt of Bare and Rodriguez and of the other three appellants
is fully proved in the record. We agree with the findings of the
lower court as to the responsibility of these defendants, and with
its classification of the crime prosecuted. The penalties imposed
upon Esteban Bare, Vicente Armiso, Fulgencio Enano, and Bernardo
Olbis are, in our opinion, also in accordance with law; but we do not
concur in the imposition of the penalty of death on Donato Rodriguez.

The latter defendant was not permanently affiliated with the band
of brigands. His connection with it was, it may be said, only
momentary and transient. He neither entered the town of Surigao in
their company, nor did he leave it with them when they retreated
after sacking the Constabulary barracks therein located,

Eduardo de los Santos, the so-called commander of the band,
testifies that Donato Rodriguez arrived at the barracks during the
course of the attack. He further-states that he is unable to say
whether or not Rodriguez was armed, because he did not observe him
particularly in this respect. Vicente Atillo, another of the band’s
leaders, testifies that Donato Rodriguez was not with them when they
entered Surigao, but that he joined them in the barracks, where
Adriano Concepcion gave him a revolver, and that he separated from
the party at the barracks. This witness also testifies that Rodriguez
took no part in the occurrences at the barracks beyond the fact of
receiving the revolver from Adriano Concepcion. That Rodriguez left
the band while it was still at the barracks and took no part in the
assault in conclusively established. During the progress of the
assault, Rodriguez was in another place attempting to induce Agaton
Dehaso, a Constabulary soldier, to surrender a revolver with which he
was armed, telling him that the captain of the Constabulary,
the captain of the port, and the provincial inspector had already been
killed by the brigands. After this moment no one saw Rodriguez with
the band. On the contrary, it appears that on the night following the
attack on the barracks he presented himself to the local authorities.

There is a great difference between the degree of guilt of this
defendant and that of Esteban Bare, also condemned by the court below
to the death penalty. It is fully proven that the latter took a
direct and very important part not only in attacking and sacking the
barracks but also in the murder of Captain Clark.

The fact that Donato Rodriguez was a member of the municipal
police of Surigao, the consideration of which chiefly induced the
court below to impose upon him the death penalty, should indeed be
regarded as a circumstance in a high degree tending to aggravate the
offense, but not to such an extent as to make it equal to that of
Esteban Bare, who was guilty of the two grave crimes above mentioned.

The damaging facts with reference to Donato Rodriguez are very
similar to those with respect to Vicente Armiso, who was condemned by
the trial judge to life imprisonment. Although it is true the former
was a municipal policeman, the latter likewise was a member of the
Constabulary. Furthermore he participated in the assault upon his own
barracks, firing in the course of the attack three shots at the
provincial warden, Mr. Tracy, who endeavored to go to the assistance
of those in the barracks. Donato Rodriguez was guilty of none of
these acts. We see no reason for imposing upon him a heavier penalty
that that imposed upon Vicente Armiso, which we consider to be wholly
adequate.

Act No. 518, which defines and punishes the crime of brigandage,
in designating the penalty to which the de fendants should be
condemned, makes no mention of “imprisonment in chains”
(cadena), but simply of “imprisonment” (prision).
Consequently the penalty of cadena perpetua imposed upon the
defendant Armiso should be understood as life imprisonment.

For the reasons stated we affirm the judgment of the Court of
First Instance with respect to Esteban Bare, Vicente Armiso,
Fulgencio Enano, and Bernardo Olbis. The penalty of cadena
perpetua imposed upon Armiso is changed to life imprisonment.
The judgment is reversed with respect to Donato Rodriguez, whom we
condemn to life imprisonment, imposing upon all the said defendants
the costs of this instance. So ordered.

Arellano, C. J., Torres, Cooper, Willard, McDonough, and
Johnson, JJ., concur.