Between 6  and 7 a.m. on the 12th  of August,  1906, Teofilo  Algurra, a priest of  the Independent Philippine Church, accompanied by Marcelo Santos, his acolyte, whose real name is Santos Bracamonte, and by Vicente Hanaysay, called at  the church  of the barrio of Bayawan,  in the municipality of Tolon, Opientai Negros, belonging  to the Roman  Catholic Church, for the purpose  of celebrating mass and performing a marriage ceremony.   As Liberata Austero and Nazaria Antique, who apparently were going to the church or chapel to pray, objected to Santos Bracamonte ringing the bell as  he intended to do, and to Father Algurra celebrating said religious rites, the latter then  threatened  the  woman  Liberata with the revolver which he  said  he carried in  his  waist,  and  told the opponents that if they persisted in their opposition they would have to face the muzzle of his gun.   Furthermore, Father  Algurra, notwithstanding the  statement of  Liberata Austero that he could not celebrate mass in the church because it belonged to another denomination, ordered the acolyte, under threats, to open the church, and  Braeamonte, according to the  information,  in  complying with the order threatened Pedro Gloria and Francisco Austero, who were there present,  with a dagger, which  fact they reported to the municipal president.

An information having been presented by the provincial fiscal of Oriental Negros charging Teofilo Algurra, Vicente Hanaysay, and Marcelo Santos, alias Santos ltracamonte, with the crime of threats of death, and proceedings having been instituted, the judge in his final judgment of the'18th of February, 1907, amended in part by /mother of the 20th of said month, sentenced Teofilo  Algurra to the penalty of four months of arresto mayor, and to pay a fine of twelve hundred and  fifty pesetas, and, in case of insolvency, to suffer subsidiary imprisonment which should not exceed one month and ten  days, crediting him with sixty-two days, half of the prision preventiva (temporary detention)  already served, there remaining, in case of insolvency, the penalty of three months and eight days of arresto mayor;  Marcelo Santos was sentenced to  two months of arresto mayor and to pay a fine of 355 pesetas, and, in case of insolvency, to suffer the corresponding subsidiary imprisonment, crediting him with ninety-one days; each of the above to pay one-third of the costs; Vicente Hanaysay  was acquitted and the remaining one-third of the costs was declared de oficio.  From the above sentence only Teofilo Algurra appealed.

From the alleged facts, as stated above, even if they are admitted as proven, it can not be inferred  that the crime of threats, defined and punished under article 494 of the Penal Code, was committed because the case contains no conclusive evidence that the accused Algurra carried in his waist the revolver with which he made the threat as stated by the offended women; no person saw that the accused, either before or after the altercation with Liberata Austero, upon entering the chapel of the barrio in order to celebrate the religious rites, carried a  revolver or any other weapon.

It has not been shown that Algurra threatened Liberata Austero and Nazaria Antique or any  member  of their families with an injury to their persons, honor or property by any act which would constitute a crime, or that he threatened them in earnest with the apparent intent to carry the threat into effect.

The accused Algurra undoubtedly took offense at the opposition of Liberata Austero to his entering the church or chapel, particularly  when she said that she did not want any pare-pare  (a mock-priest)  within the church. Trouble then arose between then and it is not to be wondered that, in a moment of excitement, Algurra may have uttered threats, making mention to the women trying to prevent his entrance to the church, of a revolver which, as a matter of fact, he did not carry.  Such conduct merely constitutes an offense provided  for in article 589, No. 3, of the Penal  Code which reads:

"The following shall be punished with penalties of from one to five days of arrest, or a fine of from 15 to 125 pesetas :

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"3. Those who shall threaten  another, by words and in the heat of anger, with an injury  that would  constitute a crime, and who  by  their  subsequent actions show that they persisted in the  intention which they gave utterance to  in their threat; provided that, in view of the circumstances of the deed, it should not be included in Book  II of this code."

Considering, therefore, that the deed proven in this case has none of the characteristics of the crimes included  in articles 494 and 495 of the Penal Code, since it only constitutes a. misdemeanor, for  which the accused, the only one appealing from the judgment of the court below  is liable, it is our opinion that the said judgment should  be reversed,  and  that the accused Teofilo  Algurra,  being guilty only of uttering threats,  should be sentenced to ten days of arresto menor, provided, however, that this penalty shall be offset by one-half of the prision preventiva (temporary detention) suffered by the accused, and to pay one-third of the costs of the first instance, and  all the costs in this second instance.  So ordered.

Arellano, C. J., Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.