According to the judgment  of the court below, brought to this court in consultation, it appears that

"It has been shown in this case that the  accused, Leocadio Salgado, suddenly attacked Gonzalo Lamaira on the night of the 25th of June,  1907, at a place called Palumpuy, town of Mariveles, Province  of Bataan, -while the latter, accompanied by his father, Saturnino Lamaira, was passing through  an uninhabited place on their way to inspect their  fields, to which their attention had  been attracted  by the  barking of dogs during the  night; that the accused struck Gonzalo Lamaira with his bolo, first on the back of the head, then  on the  neck, and finally on the arm;  that the wounds inflicted  were such that the victim died immediately; that,  after wounding Gonzalo Lamaira, and on seeing that his  father,  Saturnino, intended to defend  him,  the accused attacked him  also  and,  as Saturnino started to run to his house, pursued him thereto ; that, on reaching his house, Saturnino secured a bolo and challenged Salgado to come up, but the former's  wife, Eduvigis Lastrado, and daughter-in-law, Felisa Ambrosio, becoming aware of the  affray, and seeing from the window that Salgado was armed with a bolo, called for assistance, whereupon the accused ran away.  The day before the affair the accused had asked Gonzalo Lamaira for a black shirt, and subsequently for rice and cigarettes,  but  as Gonzalo could not  give the accused what he  had asked, the latter appeared to be  disappointed and left  without further ceremony.  The affray occurred within two  days after this  incident."

The court below considered that the deed was proven and defined the same as a crime of murder with treachery under article 403 of the Penal Code; the treachery was taken into consideration because the  accused hid himself in a place where he expected his victim would pass,  and, cautiously waylaying him, first struck him a mortal  blow with his bolo on the back of the head, and immediately after inflicted another cut on the neck, without allowing him time to defend himself. The court also took into account the aggravating circumstances of nocturnity and the commission of the crime in an uninhabited place; therefore, as there was no mitigating circumstance to compensate them, the accused, Leocadio  Salgado, was sentenced to death in the manner provided by the law, to indemnify the family of the deceased in the sum of P500, and to pay the costs.

As related by the father of the deceased, the deed occurred as follows: Father and son were both in their house and heard the barking of dogs as if something were taking place in their field close by; they went down to see.what the matter was, and finding nothing unusual, they were returning to their home when the son, who was walking behind his father, at a distance of 6 feet, exclaimed "father;" the latter looked around and saw a man, who was standing to the left of his son with a bolo in his right hand, strike the boy on the back of the head; at that moment his son was nearer to him than to the other man.  Undoubtedly the crime was committed treacherously, and its qualification as murder is in accordance with the law.

As to the aggravating circumstance of the crime having been committed in an uninhabited place,  also taken into consideration by  the court below,  the record discloses by the testimony of the father of the deceased, that the house that stood nearest to the place of the occurrence was at a distance of 10 brazas  (20 Spanish  yards), but that the owners thereof did not live there.  On said night there were only the two men  who rendered assistance,  and another person  who lived in another house about 30 brazas away; and on being questioned as to  the distance between his house and the place where his son was  attacked, he said that it was approximately 30 varas.  Under such conditions the aggravating circumstance of the commission of crime in an uninhabited place  can not be taken into; consideration.  An  uninhabited place is one where there are no houses at all, a considerable distance from town, or where the houses are scattered at a great distance from each other.  (Judgment in cassation, January 9, 1884)

It is true that the crime was committed at night.  In accordance with the judgment in cassation rendered on the 21st of June, 1890

"The circumstance of nocturnity and  an uninhabited place does not absolutely imply treachery, nor is it, as a general rule, inherent in the latter, inasmuch as there arc crimes wherein the former circumstance is present and which  are not treacherous, so there are many others in which the first circumstance is not present; therefore, they are entirely compatible the one with the other, and should be given the legal value that they respectively possess, except in the case of some particular crime wherein nocturnity constitutes the most salient feature  of  or means whereby the crime is treacherously committed."

In a case similar to the present one two persons who were in charge of a vineyard were awakened by the barking of dogs, and upon going to the place where the dogs indicated that something was occurring, they were fired upon.  Their assailant was a man with whom they had had  some trouble  and  who was hiding close by in the shrubbery.  In the judgment in cassation of the 29th of December, 1884, it was held that:

"Nocturnity must be considered by courts in accordance with the express provisions of the Penal Code and with the nature and circumstances of the crime.  Therefore, in the present case, which was committed  at night,  it was a peculiar manner or form to insure its execution, rather than  a special circumstance, and constitutes a circumstance absolutely  inseparable from the treachery  which has already been fully considered as qualifying the crime of murder."

By virtue thereof, the accused Leocadio Salgado is hereby sentenced to the penalty of imprisonment for life, and to suffer the accessory penalties of article 54 of the Penal Code, the judgment appealed from being reversed in that regard.  Otherwise with respect to the indemnity and payment of the costs  of the first instance it  is affirmed, and with those of the second instance also against the accused. So ordered.

Torres, Mapa, Carson, Willard, and Tracey, JJ., concur.