G.R. No. 1535. April 11, 1904

May 21, 1903, an information was filed in the court of the justice
of the peace of Cebu by the provincial fiscal, charging Juan Ginete,
Honorio Cordero, Pedro Dabon, Ramon Rondina, Isidro Ceno, Miguel
Rosalina, Francisco Baja, and Nicolas Baja of the crime of brigandage,
in that they on and after the 12th of November, 1902, and more
specially in April, 1903, and until the 4th of May following, in the
town of Tuburan, of the Island of Cebu, organized a numerous band of
thieves, styled pulahanes, for the purpose of stealing carabaos and
other personal property, and that these persons, armed with deadly
weapons, under the leadership of the first three defendants, wandered
about the roads and fields, and on the 4th of May above referred to
attacked the town of Tuburan, in which assault the accused took part,
and that they furthermore feloniously and willfully protected and aided
the said band of thieves, giving them information concerning the
movements of the police, and furnishing them with provisions, arms,
ammunition, and clothing, contrary to the statute in the case made and
provided.

After the preliminary investigation the defendants were held for
trial in the Court of First Instance, in which court the judge, on
motion of the prosecuting attorney, dismissed the case as to Pedro
Dabon, Roman Rondina, Isidro Ceno. Miguel Rosalina, Francisco and
Nicolas Baja, and Honorio Cordero, who were discharged, the case being
continued solely with respect to Juan Ginete. From the transcript of
the evidence taken at the trial it appears that the witnesses Roberto
Caro, Potenciana Guillen, Clemente Maxilon, Carmelino Mapilit, and
Pedro Bajesa testified under oath that on the day following the 4th of
May, on which the town of Tuburan was attacked by the pulahanes,
the accused, Juan Ginete, was going about selling to the people pieces
of paper with crosses painted on them, at the price of 50 cents each;
that when distributing these papers he stated that when the pulahanes
came back to the town from the mountains they would kill all the people
who were not provided with these papers. The witnesses stated that they
did not know where Ginete was while the pulahanes were in the
town, or whether he went out into the mountains to communicate with
them, and that they did not know what was done with the money received
from the sale of the papers, as the day on which these papers were sold
there were no brigands in the town.

Natalio Pisalver, a member of the Constabulary, testified under oath
to the same effect, and further that he was in the barracks on the 4th
of May, when the pulahanes entered the town, but was unable to state
where the accused was at that time, or from whom he obtained the pieces
of paper which he sold; that after the fight took place between the
bandits and the Constabulary on that occasion they found a dead man,
and on his breast were some pieces of paper similar to those sold by
the accused, and which were exhibited to the witness by the prosecuting
attorney while testifying. The witness stated further that he did not
know who was the leader of the band, or whether the defendant was a
member of it or not, as he had never seen him with the brigands; that
he knew that the brigands were engaged in robbery, because on the day
of the attack
upon the town they stole a carabao from one of the inhabitants of
Tuburan, and that in the shed where the bandits lived rice, hogs,, and
carabao hides had been found; that one Roberto Caballero was a member
of the band of malefactors, and that in the course of the attack on the
town by the pulahanes
the police captured the wife of one Mintong, a leader of the band, and
that this woman was at the time a prisoner in the municipal building,

A piece of paper marked ” Exhibit A ” (record, p. 36) was introduced
as evidence for the prosecution at the trial, over the objection and
exception of the defense. Immediately thereafter Lieut. Mateo Luga, of
the Constabulary, testified that upon his arrival in Tuburan with his
troops he found that the band of pulahanes had fled, but that
on the road he found pieces of paper, with crosses upon them, some made
with pencil, others with blue ink, and others with red ink; that these
papers were similar to the one introduced in evidence by the
prosecuting attorney, and that they had been taken from some people who
had provided themselves with them, fearing that they might be killed
unless they had these papers.

Upon this evidence the court below convicted the defendant, Juan
Ginete, and condemned him to twenty years’ imprisonment at hard labor
and to the payment of the costs.

It does not appear from the evidence in this case that the
defendant, Juan Ginete, was a member of any band of armed malefactors,
engaged in robbery or other crimes against persons and property. The
complaint charges Juan Ginete with being one of the leaders of a
numerous band of thieves, styled pulahanes,
who on the 4th of May assaulted the town of Tuburan. This charge is not
supported by the evidence, nor is there any proof that the defendant
Ginete took part in the commission of that crime, that he was a member
of the band, or that he had any connection whatever with it. Neither
does the evidence show that Ginete, within the meaning of the law, is
guilty of giving aid and comfort to the members of that band.
Consequently he can not be convicted of the crime of brigandage. The
evidence apparently shows that the accused was engaged in selling
papers bearing a mark of a cross in colors, and that he collected for
each one of these papers the sum of 50 cents, Mexican currency, by
means of the threat that upon the return of the brigands to the town
all persons not provided with such papers would be killed. These facts
might constitute the crime of robbery, but this offense is not charged
in the complaint. The acts of the accused appear to be entirely
independent of those of the brigands who formed the band in question.

Consequently, this being a different case from that of the robbery
for which Anastasio Mangubat was convicted— the case upon which the
Attorney-General relies—we do not consider that the accused can be
convicted of robbery in this case, because the offense charged in the
information is not robbery, but, brigandage.

Therefore, for the reasons stated, it is our opinion that the
judgment of the court below must be reversed, and the defendant, Juan
Ginete, acquitted of the crime of which he is accused, with the costs
of both instances dc oficlo. The judge, as soon as an information for
the crime of robbery, consisting of the fraudulent sale of papers and
the exaction of 50 cents, Mexican currency, by threats and
intimidation, is filed against Juan Ginete, will act thereon in
accordance with the law. The case will be returned to
the trial court with a certified copy of this decision, and of the
judgment to be entered in accordance therewith for execution thereof.
So ordered.

Arellano, C.J., Mapa, Cooper, McDonough, and Johnson, JJ., concur.