G.R. No. 1547. April 12, 1904

February 13, 1903, Andrew Petterson filed a complaint in the Court
of First Instance of the city of Manila, charging Santiago Manique,
Mateo Tamba, Mariano Manique, Ciriaco Reynoso, Domingo Reyes, Clemente
Apolinario, and Severo Lacson with the crime of brigandage, in that on
or about the 1st of September, 1902, the accused willfully and
feloniously conspired together and formed a band of thieves for the
purpose of stealing carabaos, horses, or other personal property in
Manila, Philippine Islands, by force and violence, and during a period
of more than five months went out upon the highways and wandered over
the country, armed with deadly weapons, for the purpose
of committing crimes against property, and did take and carry away
horses and other personal property, contrary to the statute in the case
made and provided.

From the evidence taken at the trial it appears that the witness
Fred J. Severence, a member of the police of this city, stated under
oath that upon complaint of the said Petterson, superintendent of the
Pasay Cemetery, he arrested the accused, and had discovered in
consequence of an investigation made by him that some of them had
stolen a mare belonging to the said Petterson, which animal was kept by
him at a place in Malate; that one night Severo Lacson told him that if
he, the witness, would go with him to a certain house, he would point
out the place where the stolen mare was to be found; that he did so,
accompanied by a member of the native police, but as the accused was
going through the door of the house he picked up a bolo with which he
attacked the native policeman, wounding him in the head; that thereupon
the witness fired his revolver and killed Lacson. The policeman,
seriously wounded, was taken to the hospital.

A.N. Petterson testified under oath that he had known the accused
for more than one year, they being employed in the cemetery under him;
that on the 14th of November, 1902, the witness lost a mare, worth one
hundred and fifty pesos, the animal having been left outside the fence
some 50 feet away from the stable, with a halter and a new rope with
which she was tied up; that since he commenced to hold the position as
superintendent of the cemetery, some five months ago, he has been
losing food, utensils, tools, and other things, but was unable to find
out by whom they were taken, although he offered a reward of $5 to
anyone who would give him information as to who were the thieves; that
after the disappearance of his mare he offered a reward of $25 to
anyone who would bring her to him alive, or 10 pesos if she were dead;
that about the beginning of January, 1903, a woman from Malate, who was
helping the witness’s wife during her illness, told him that the mare
was alive, and that some of his men had her hidden away; that when he
commenced to look for the mare the foreman of the men under him told
the witness that he did not care if he were killed, as there were
plenty of. men who would revenge him by making away with the witness.

Mariano Manique, also under oath, testified that he was 17 years of
age and an employee of the cemetery; that Severo Lacson stole Mr.
Petterson’s mare; that Santiago Manique and Mateo Tamba knew about it
and proposed to sell the animal and divide the proceeds of the sale
among themselves; that Lacson had stolen two other horses during the
preceding year, and had them at a place called Legiro, near his house;
that the witness did not know whether Ciriaco, Domingo, and Clemente
knew about that theft, but that it was known to his father, Santiago
Manique, and to Mateo Tamba. Agapito Novenario in turn testified under
oath that he was a member of the police, and was
at the police station when Tamba, Lacson, Santiago, Mariano, and
Manique were arrested; that Tamba stated that when he was out behind
the race track one day he saw the mare running along, and that then
Severo Lacson invited him and Mariano and Santiago to catch her; that
as the mare was sick Lacson kept herewith a view to curing her and
selling her afterwards; that they all knew the mare was the property of
the complaining witness.

The facts established by the testimony of these witnesses do not
constitute the crime of brigandage, defined and punished in Act No.
518, for it does not appear therefrom that the defendants, to the
number of three or more, armed with deadly weapons, had formed a band
and conspired together for the purpose of engaging in brigandage, that
is to say, the stealing of animals by force and violence, and other
crimes against property, to that end going out upon the highways and
wandering over the country for the purpose of committing such
depredations. It does not appear that the theft of Petterson’s mare,
which was loose in a field, was committed by a band of armed men or by
means of force, intimidation, and violence.

The offense committed may be that of theft, denned and punished in
articles 517 and 518 of the Penal Code, but not the crime of
brigandage. The crime of theft can not be considered as necessarily
included in the crime of brigandage, and as the complaint does not
charge the accused with the former crime, it is our opinion that the
judgment of the court below must be reversed, and the defendants
Santiago Manique and Mateo Tamba acquitted, with the costs de oficio.
We make no decision with respect to Mariano Manique, Ciriaco Reynoso,
Domingo Reyes, and Clemente Apolinario, as the case was dismissed with
respect to them and they were discharged. This acquittal will not be a
bar to a prosecution upon a proper complaint or information for theft
of the mare. The case will be remanded to the trial court with a
certified copy of this opinion and of the judgment, which in due time
will be entered in accordance therewith.

So ordered.

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

Johnson, J., did not sit in this case.