THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. BASILIO REGUERA (ALIAS TENIENTE ASM) AND ALEJANDRO ASUATEGUI (ALIAS TENIENTE NANDO), DEFENDANTS AND APPELLANTS.

The appellants in this case were found
guilty of robbery with double homicide and sentenced by the Court of
First Instance of the Province of Iloilo each to cadena perpetua,
to pay jointly and severally to the heirs of the deceased Josefa
Pasaporte the sum of P1,000, to return to Porfirio Guangco, also
jointly and severally, the sum of P200 and the jewels robbed or their
value of P2,083.50, with the accessories provided by law, and the
payment of the costs.

The facts proved in the case are the following: At about 5 p. m. of the 22d day of July, 1919, the accused Basilio Reguera (alias Teniente Asir), and Alejandro Asuategui (alias
Teniente Nando), the first armed with a dagger and the second also with
a dagger and a bolo, assaulted the house of Josef a Pasaporte, situated
in Calle Pilar, poblacion of the municipality of Pototan,
Province of Iloilo, and upon gaining entrance, closed the doors, and
blandishing the weapons they carried, tied the inmates, the aged Josefa
Pasaporte and the young people Natalia Peronce (15 years old), her deaf
brother Sixto and two children, grandchildren of the first person
mentioned, who were Esteban and Corazon Guangco, the latter being 5
years old; and while they were thus tied and the accused Alejandro
Asuategui guarded them, the other accused Basilio Reguera, threatening
the old woman with death, asked her to give up P200 and as she answered
that she had no money, he opened wardrobes, several tampipis
and two boxes, Exhibits C and B of the prosecution, and took possession
of the jewels they found, such as rings, bracelets, chains, etc.,
gathering and placing them in the smaller box, which he wrapped with
the underwear which he wore upon entering the house and which he took
off and changed with a cundiman, that is, a red cloth. At dusk they lighted the lights, a small one in a bottle prepared ad hoc
and another bigger light in a lamp used by them as a lamp for outing.
At about 6 o’clock Porfirio Guangco, son-in-law of the old woman
Pasaporte, arrived, having been absent from the house with his wife
Sofia Perenas, daughter of said Pasaporte. Porfirio called his
mother-in-law, but instead of her one of the culprits looked out of the
window and asked him for money threatening to kill all in the house if
his order should be refused. At first he asked P1,000, and as Porfirib
answered that he did not have that sum he reduced it to P500, and as
Porfirio neither agreed to it, he reduced it to P200, and then Porfirio
answered that he would go and look for it. As soon as possible he
returned with the P 200, wrapped it in a handkerchief, and delivered it
to the accused Asir, throwing it to the window. After receiving the
money, Reguera told the occupants to light the way as they were going
down, warning them that they would kill the old woman and the children
should they hear shots. They went down from the house and upon reaching
the street they went on their way in the following order: In front was
the old woman Pasaporte, held by the shoulder by Basilio Reguera (alias
Asir), with one hand tied and the other loose and holding the child
Corazon; then followed Sixto, the deaf, who carried the lamp already
referred to, with one hand tied to that of Natalia Peronce who carried
in her arms the child Esteban; behind them came the other accused
Alejandro Asuategui (alias Nando) with a drawn dagger in his
right hand and the bolo in the left; on the rear about two arms’ length
away was Porfirio Guangco accompanied by Donato Parcon who also carried
another lamp. They had hardly gone some distance from the house when
they heard shots coming from the west thereof and then Asir, who was in
front, holding the old woman by the shoulder, stabbed her in the
abdomen and then the child Corazon in the right collar bone, the wound
passing into the breast. And Nando, who was on the rear, also stabbed
the child in the left part of the region of the groin. The culprits
then took flight. The old woman Josefa Pasaporte and the child Corazon
Guangco died on the same night that the event occurred as a result of
the wounds.

Upon examining the corpses of the deceased on the same night,
Doctor Arancillo found that Josefa Pasaporte had a cut of 1 1/2 to 2
centimeters long by 1/2 centimeter wide in the epigastric region,
caused by a cutting and pointed instrument, and necessarily mortal; and
that the child Corazon received four wounds, the first a cut of 2 1/2
centimeters long by 1/2 centimeter wide and 18 centimeters deep in the
right shoulder blade; the second which is a continuation of the
preceding, of 2 centimeters long and 1/2 centimeter wide on the
interior edge of the joint of the scapular and the collar bones, both
wounds having been caused with a single blow of a cutting instrument,
the first being the point of entrance and the second the outlet; the
third in the right hip, being an almost round wound 8 centimeters deep,
caused by a firearm, and the fourth in the left inguinal region, 10
centimeters deep, caused by a pointed and cutting instrument. The
first, second, and third wounds, were necessarily mortal, but the first
two given with a single blow were more deadly than the third.

Counsel for the accused in this instance, in assigning the errors
committed by the trial court, allege: (1) That the lower court erred in
finding the accused guilty as principals in the crime in question; and
(2) that the accused are entitled to the benefit of a reasonable doubt.

The perpetration of the robbery with double homicide, which is
prosecuted in this cause, is an indisputable fact. The only question
raised in the brief for the defense is whether the accused and
appellants were sufficiently identified.

A careful examination of the declarations of the prosecuting
witnesses, Natalia Peronse, Adriano Pasaporte, Cirilo Lapatin, and
Porfirio Guangco, shows beyond all reasonable doubt: (1) That the
accused Basilio Reguera (alias Asir), upon going up the house of Josef a Pasaporte, went to the kitchen and took the servant Sixto to the sala
where Josefa Pasaporte and her two grandchildren Gorazon Guangco and
Esteban Guangco were; that he opened the wardrobes and trunks, upset
the contents and took the jewels from the jewel boxes; that he demanded
F200 of Porfirio Guangco from the window of the house; that he ordered
Porfirio Guangco to light the lower part of the house where they had to
pass with their victims; that upon going down he took off his hemp
cloth and put on a red one and held the right shoulder of Josefa
Pasaporte with his left hand, while with his right hand he held a
dagger over her breast; that, upon hearing the first shot at about 20
steps from the house, he stabbed said Josefa Pasaporte and then the
child Corazon Guangco, whom the former carried in her arms; and (2)
that the other accused Alejandro Asuategui, upon going up the house,
stationed himself at the upper part of the stairs, closed the door
after the servant Natalia Peronse had ascended the stairs; took the
latter to the sala where Josef a Pasaporte with her two
grandchildren Corazon and Esteban and the servant Sixto were, and there
he tied the three adults with only one rope and carried them to the
open door of the room to the left which led to the room to the right
where he guarded them, while his companion opened the trunks and
wardrobes, upset their contents and took the jewels; that upon going
down he received from his companion the sinamay cloth, which
the latter had taken off, and he put it around his neck, and then
placed himself behind the servants Natalia Peronse and Sixto who were
tied, while he held his drawn bolo in his right hand which rested upon
the right shoulder at about the height of his head and held a dagger in
the left hand; and that upon hearing the first shot at 20 steps from
the house he fled, after first stabbing the girl Corazon Guangco in the
left inguinal region.

The Honorable Antonio Villareal, the judge who tried the case in
the first instance, analyzing the circumstances under which said
prosecuting witnesses observed the culprits, in order to determine
whether they were such as to enable them to perfectly recognize and
retain in their memory the physiognomies and general appearance of
these persons, to such extent that in indicating the accused during the
trial two months afterwards, they could not be mistaken as to the fact
that they were the same rascals whom they saw two months before, says
the following in the decision appealed from:

“The witness Natalia Peronse saw the accused very
near her in plain daylight, at 5 p. m., until night came, and by the
light of the lamp for outing purposes which they lighted in the house.
Natalia Peronse is young and appears to possess a perfect eyesight. She
was therefore in the best of condition, with respect to time and light,
in order to observe well the physiognomies of the accused and retain,
them in her memory. The constant threats of death under which that
witness was placed from the moment the rascals ascended the house until
they escaped must have produced a profound impression upon her. On this
point we read the following from Moore on Facts, Vol. II, page 891: ‘
“An impression may be so exciting emotionally as almost to leave a scar
upon the cerebral tissues,” says Professor James. So where a man and
his wife were dragged from their bed in the nighttime and cruelly
tortured by robbers partly masked, and they heard the voices of their
torturers, observed their figures, their movements, their eyes, the
color of their hair, and their relative size and manner, “every
peculiarity of each of them,” said the court, “must have been literally
burned into the memory” of their victims and enable the latter to
identify them subsequently with confidence.’ Furthermore Natalia
Peronse identified the accused the next day when they were arrested, in
this manner making the impression upon her memory of their physiognomy
more profound.

“Adriano Pasaporte has known the accused for more than six years; he has frequently been with them and has played monte
with them on various occasions, so that the details of their person
must be familiar to him and it would be sufficient for him to see them
by the light of a lamp used for outing purposes, to recognize them. The
same work already cited says on page 1365 the following as to this
point: The combination and arrangement of the human features and
lineaments are ordinarily so unique in each particular person, and the
peculiarities of individual expression, tone of voice, gesture, and
carriage, so marked and striking, that to a familiar acquaintance ox
friend there can be very little chance of mistaking personal identity.
Familiar intercourse produces that kind of knowledge which acts
instantaneously, by an immediate and single process of recognition. We
do not, at every meeting with an acquaintance, begin to compare
features, and reason on the question of identity, but we recognize the
whole object as a living unity. * * *”

“The identification
of the accused by Cirilo Lapatin and Porfirio Guangco, although not
made under the same circumstances as that by Natalia Peronse and
Adriano Pasaporte, are sufficient to establish their guilt, there being
no credible evidence to the effect that they were in another place.”

We have carefully examined the evidence before us and are convinced
that the findings of the trial judge are in accordance with the merits
of the cause. The prosecuting witnesses were submitted to a long and
detailed examination both by the fiscal and counsel for the defense as
well as by the trial judge, and in their declarations we find nothing
which would justify any alteration in the conclusions of fact contained
in the judgment appealed from.

Counsel for the accused presented the witness Epifanio Lucasi,
attempting to show that the accused were not the evildoers who
assaulted the house in question but others, because said witness saw
them and did not recognize them, although he knew the accused for a
long time and would recognize them although they might be in a somewhat
dark place. Nevertheless this witness, who positively states that he
closely observed the faces of the rascals, did not observe whether they
had hats on or not, a circumstance which puts much doubt upon the
veracity of his testimony. After giving the description of the. rascal
who went by the side of the deceased Josefa Pasaporte, which coincides
with that given by the prosecuting witnesses, he says that that man is
not the accused Basilio Reguera (alias Asir) for, according to
him, Asir is taller by one finger than that person whom he saw that
night (p. 134. s. n.). The testimony of this witness does not deserve
greater credit than those of the witnesses for the prosecution, who
unanimously affirm that the man to whom the witness Lucasi refers is
the same accused Basilio Reguera (alias Asir).

The accused Alejandro Asuategui declared that the witness Peronse
stated, when the accused were arrested the next day and presented to
her by Lieutenant Castaneda of the Constabulary, that they were not the
‘culprits. But this uncorroborated declaration of the accused Asuategui
cannot prevail over that of the witness Peronse, who repeatedly and
positively declared at the trial that the accused are the same rascals
who robbed the house of Josefa Pasaporte on the afternoon in question.
This i3 corroborated by the testimony of Lieutenant Castaneda, when he
says that he ordered the arrest of the two accused the same night of
the occurrence, because, according to the information he received, the
culprits were the persons known as Asir and Nando, the same persons
accused in this case. Said witness Peronse, noting certain distinctive
features of the accused, said to the court in the beginning of her
declaration:

“The person who killed my grandmother Josefa is
that man, Asir, who then had a mustache (indicating the accused Basilio
Reguera), and the person who tied us is that man who has smallpox
(indicating the accused Alejandro Asuategui)” (p. 17, s. n.).

This shows that the witness knew the accused perfectly well from
the afternoon in question and this knowledge enabled her to recognize
them when they were arrested the next day after the event. Josefa
Perenas also corroborates her when the former says that Peronse told
her that morning that those persons presented to her are those who
assaulted the house of Josefa Pasaporte (p. 72, s. n.).

The defense impeaches the credibility of the prosecuting witnesses
Pasaporte and Lapatin, alleging that the first had, nine months before
the event, certain personal disputes with the accused Reguera, and the
second, with the other accused Asuategui. It should be noted
nevertheless that Adriano Pasaporte denied that such incident with the
accused Reguera had happened, and there is no reasonable motive to
doubt her veracity; but supposing that such incident did happen, yet,
we believe that it is not enough to inspire this witness with a desire
of vengeance, above all because she testified not only against Reguera
but also against the other accused Asuategui, with whom no motive of
resentment is alleged. The same thing may be said of the witness Cirilo
Lapatin. The latter denies having known Asuategui before the event and
he could not therefore have had any resentment against him. This
witness was presented to identify the accused, and he testified against
the accused Asuategui and also against his coaccused Reguera, with
whom, according to the theory of the defense, he could not have any
personal resentment.

The defense calls our attention in its brief to the discrepancy
which is noted between the declarations of the witnesses Peronse,
Lapatin, and Pasaporte with respect to the language or dialect which
Reguera used in demanding money of Porfirio Guangco. Peronse, in
stating that Reguera spoke in Spanish to Porfirio Guangco, does not
positively state that he spoke only in that language, and his testimony
does not exclude the possibility that part of the conversation between
Reguera and Porfirio Guangco might have been carried on in Visayan.
Lapatin says that the conversation was partly in Visayan and partly in
Spanish. And Pasaporte in declaring that Reguera spoke partly in
Spanish and partly in Visayan, far from contradicting any of the two
preceding witnesses, corroborates their statements.

The accused presented as a principal defense an alibi, attempting
to prove by means of their witnesses Pedro Sorianoso and Geronimo
Atadero that on the day in question from 5 o’clock in the afternoon, at
which time the attack was taking place, until 7 o’clock in the morning
of the next day, they, with other companions, the said Pedro Sorianoso,
Geronimo Atadero (alias Nomo), Fabian Torcuato, Arellano Solinap, one Cayetano, Federico Cordura, Basilio Misa, and Jacinto Pesadilla (alias Pitao), were playing monte
in the house of the person last named situated in Guinacas, a barrio of
the municipality of Pototan, about 3 kilometers from the poblacion of this municipality, where the crime occurred.

Although there is no evidence which directly contradicts the
testimony of the witnesses with respect to the alibi, this defense
alone does not outweigh the direct, positive, and conclusive testimony
of the prosecuting witnesses as to the identification of the accused,
as being the same persons who assaulted the house of Josefa Pasaporte,
robbed her of the jewels and on the occasion of the robbery killed her
and her granddaughter Corazon Guangco. But the record contains evidence
which divests the defense of alibi presented by the accused of all
value. Geronimo Atadero and Pedro Sorianoso, witnesses for the defense
on this point, who testified that the accused were at the house of
Jacinto Pesadilla with Federico Cordura and others playing monte
from 5 p. m. of the day in question until 7 a. m of the following day,
were contradicted in rebuttal by Pesadilla and Cordura themselves,
witnesses for the prosecution, who, corroborating themselves mutually,
assure the court that the accused arrived at the gambling place, the
house of Pesadilla, when the night was already well advanced, about 10
p. m. more or less of the same day, that is. two hours more or less
after the attack which, according to the witnesses for the prosecution,
ended at about 8 p. m. The trial judge believed these two witnesses for
the prosecution, and was so convinced that the witnesses for the
defense did not state the truth that, upon the termination of the
trial, he ordered the prosecuting attorney to investigate the witnesses
for the defense who testified as to the alibi, for the purpose of
prosecuting them for perjury.

Finally, the attorneys for the accused contend that it is hard to
believe that the latter should have committed the offense imputed to
them: (1) Because of the extraordinary hour and manner of the
occurrence of the attack; (2) because if the accused had been the
authors of the robbery instead of going to a gambling house after the
event, they would have escaped in order to conceal their crime; and (3)
because as they enjoyed a good reputation in their barrios they had no
need of committing robbery. To the first the answer should be that
similar cases of robbery in the outlying portions of a poblacion
occur with unfortunate frequency in this country, a fact which
indicates that there is nothing unbelievable in the present case. The
accused entered the assaulted house peacefully, and once inside drew
their weapons, maltreated the inmates and closed the door, succeeding
in this manner in excluding all help on the part of the neighbors. To
the second contention it suffices to answer that the fact that the
accused went to the house of Pesadilla to gamble after the commission
of the offense, far from being unbelievable, is the most natural thing
they could have done under the circumstances, for, by going to gamble
as usual where they were known gamblers, they attempted to drive from
them the suspicion that they might have been the authors of the attack.
The third contention of the defense is refuted by the evidence for the
prosecution which shows, without any doubt, that the accused are the
authors of the crime. Besides, it appears by the declaration of the
witnesses for the defense, Atadero and Sorianoso, that the accused are
well-known gamblers, and the history of crime furnishes many cases of
crimes against property and against persona committed as a result of
gambling.

In view of what has been said there is therefore no doubt that the
accused are the authors of the robbery committed in the house of Josef
a Pasaporte and of the killing of the latter and of her granddaughter
Corazon Guangco committed on the occasion of the robbery, the accused
therefore being guilty of the complex crime of robbery with double
homicide, in accordance with the doctrine established by this court in
the case of U. S. vs. Tiongco (37 Phil., 951).

The facts proved at the trial beyond all reasonable doubt
constitute the complex crime of robbery with double homicide defined
and penalized in article 503, case No. 1 of the Penal Code. In the
commission of the crime there should be considered as aggravating
circumstance of the robbery that of the accused having entered the
dwelling house of the deceased Josefa Pasaporte and, as to the killing
of the latter, the disregard of her age and sex and as to that of the
child Corazon, 5 years of age, that of alevosia, as the crime
was committed when the old woman had her hand tied and with the other
carried the child, and because the latter was a child of tender age.
(U. S. vs. Baul, 39 Phil., 846; decision of the supreme court of Spain, dated March 1, 1881.)

The trial court correctly found the presence of said aggravating
circumstances, and after compensating them with the special mitigating
circumstance provided for in article 11 of the Penal Code, as amended
by Act No. 2142, imposed upon the accused the penalty in its medium
degree, in accordance with rule 2 of article 80 of the Penal Code, that
is, cadena perpetua.

The Attorney-General argues in his brief that the mitigating
circumstance (art. 11 of the Penal Code) of lack of instruction cannot
be considered, as a general rule, in crimes against property, and much
less in this case, in which the accused are barrio lieutenants, and
therefore, the penalty which should be imposed upon them should be the
maximum, which in this case is death, prescribed in article 503 of the
Penal Code, instead of cadena perpetua which the judgment appealed from imposes upon them.

In the case of U. S. vs. Maqui (27 Phil., 97), this court established the following doctrine:

“It is true that this court has quite uniformly
held that convicts of the crimes of theft and robbery are not entitled
to the benefits of the provisions of article 11 of the Penal Code prior
to its amendment by Act No. 2142, this on the theory that under the
provisions of the article prior to its amendment the ground upon which
the courts were authorized in their discretion to mitigate the
penalties prescribed by the code was ‘the circumstance of the offender
being a native, mestizo, or Chinese.’ As to crimes of this nature we
declined to hold that the mere fact that one is a native of the
Philippine Islands, a mestizo or a Chinese would justify a claim that
upon conviction of crimes such as theft or robbery he should be treated
more leniently than the members of any other race or people, no sound
presumption arising from the mere racial affiliation of the convict
that he was less able to appreciate the criminal character of such
offenses or to resist the temptation to commit them than are they.

“Under the provisions of the article as amended by Act No. 2142, the
ground upon which the courts are authorized to mitigate the prescribed
penalties is not the racial affiliation of the convict, but ‘the degree
of instruction and education of the offender;’ and while mere ignorance
or lack of education will not always be sufficient to justify the
mitigation of the prescribed penalties for crimes such as theft and
robbery, there can be no doubt that cases may and will arise wherein
under all the ‘circumstances attending’ the commission of these
offenses the exercise of a sound discretion will justify a more lenient
treatment of an ignorant and semicivilized offender, than that which
should be accorded one who has had the advantage of such a degree of
instruction and education as would justify the court in believing that
he was capable of fully and properly understanding and appreciating the
criminal character of the offense committed by him.

“We
conclude, therefore, that under the provisions of article 11 as amended
by Act No. 2142, the courts may and should, even in cases of theft and
robbery, take into consideration the lack of instruction and education
of the offender where it appears that, under all the circumstances
attending the commission of the offense, he should not be held to the
strict degree of responsibility prescribed in the code for the ordinary
offender.”

The doctrine announced in this decision was followed in the following cases: U. S. vs. Tan Corteso (32 Phil., 104); U. S. vs. Landasan (35 Phil., 359); and U. S. vs. Maido (36 Phil., 847).

In the case of U. S. vs. Solaria (33 Phil., 582), this same court, applying the benefits of article 11 of the Penal Code, said:

“Having in mind their manifest ignorance and lack
of instruction, and having in mind also the fact that they do not
appear to have taken a leading part in the organization of the band or
the commission of the crime and seem rather to have been the ignorant
tools of the leaders of the band, the penalty as to them should be
reduced to life imprisonment ( cadena perpetua) under the provisions of article 11 of the Penal Code as amended.”

And in the case of U. S. vs. Antonio (31 Phil., 205), this court said:

“On account of deficient instruction and lack of education on the
defendant’s part, the special circumstance established by article 11 of
the Code, as amended by Act No. 2142, must be applied in his favor; but
even holding the concurrence of this special circumstance to offset one
or several of the aggravating circumstances mentioned, from the nature
of the penalty fixed in said article 503, No. 1, of the Penal Code, the
final and extreme penalty fixed by the law must still be imposed upon
the offender in view of the large number of aggravating circumstances,
the greater portion of which are interrelated and lack other mitigating
circumstances to offset them. (Penal Code, art. 80, Rule 4.)”

According to the actual state of the decisions of this court, it
results: (1) That the special mitigating circumstance of article 11 of
the Penal Code, as amended by Act No. 2142, that is, the lack of
instruction and education of the convict, may be and should be
considered, as a general rule, even in cases of robbery and theft, when
it appears that, under all the circumstances which surrounded the
commission of the crime, the strict degree of responsibility which the
Penal Code imposes upon common convicts should not be exacted of them;
and (2) that said special mitigating circumstance may be compensated
with one or some aggravating circumstances in order to reduce the
penalty prescribed by law, but it will not prevent the imposition upon
the convict of the penalty in its maximum degree when one or more
aggravating circumstances concur which are not susceptible of
compensation because of the lack of other mitigating circumstances.

We agree with the Attorney-General in that in the present case the
mitigating circumstance of lack of instruction and education should not
be considered because the accused were barrio lieutenants, a position
which implies that they are cognizant of their duties with respect to
the protection of persons and properties.

In the case of U. S. vs. Fortaleza (12 Phil., 472), thi court, among other things, said:

“Taking into consideration, the fact that under the
municipal system which was superseded by the system provided in this
Act, municipal councilors and their lieutenants placed in charge of
particular barrios were always recognized as agentes de la autoridad and
clothed with the necessary authority for the maintenance of order and
the protection of life and property; we think that the Commission, in
providing for the assignment of one or more councilors in charge of
each barrio or part of barrio, so that each barrio shall be under the
direction of one or more councilors, must be taken to have entrusted to
these councilors and their lieutenants a duty of maintaining order
within their respective barrios, substantially similar to that which
was imposed upon municipal councilors under the Spanish law existing at
the time of the promulgation of the Act No. 82, and thus to have
conferred upon, or confirmed to them the functions of agentes de la autoridad (agents
of authority) within their respective barrios, with the necessary
authority incident thereto for the maintenance of order and the
protection of life and property.”

That the robbery in question took place out of the juris diction of
the barrios of which the accused are lieutenants, does not divest them
of the knowledge that they acted in violation of their duties, for
which reason they cannot be considered as lacking in education and
instruction within the meaning of article 11 of the Penal Code, as
amended by Act No. 2142. But even considering in favor of the accused
the presence of said special mitigating circumstance of article 11,
equitatively weighing the moral importance of said special mitigating
circumstance and the aggravating circumstances of the commission of the
robbery in the dwelling place of the deceased Josefa Pasaporte, and of
the homicide upon her in disregard of her age and sex, and of the alevosia
present in the homicide committed against the child Corazon Guangco, we
do not believe that the first of said circumstances should have such
force as to completely destroy the effects of all the others; so that,
compensating it with one or two of the aggravating circumstances
mentioned, in view of the penalty imposed in No. 1, of article 503, of
the Penal Code, it is proper in any event to impose upon said accused
the maximum penalty fixed by law, in view of the number of aggravating
circumstances, one of which, that of alevosia, is no longer susceptible of being compensated because of the absence of other mitigating circumstances. (U. S. vs. Antonio, supra.)

Notwithstanding this conclusion arrived at by the court, the
sentence of death cannot be executed with respect to the accused
Alejandro Asuategui, in view of the fact that upon the reconsideration
of the case by the court in bane, it was not possible to secure, with
respect to said accused, the unanimity of votes of all the justices
present, a condition which Act No. 2726 requires for the imposition of
the death penalty.

By virtue of all that has been said, in accordance with section 2
of said Act No. 2726, the penalty immediately inferior to that of death
according to graduated scale No. 1 of article 91 of the Penal Code,
that is, cadena perpetua, should be imposed upon the accused
Alejandro Asuategui, the judgment appealed from being thus affirmed as
to hi n; and the same is reversed as to the other accused Basilio
Reguera (alias Asir), upon whom the maximum penalty prescribed
by article 503, case No. 1, of the Penal Code, that is, death, is
imposed, which shall be executed at the time and date which the trial
judge may fix in accordance with the provisions of Act No. 1577. So
ordered.

Mapa, C. J., Araullo, Street, and Malcolm, JJ., concur.

---

^[1] New trial was granted by resolution of September 27, 1921.