On the morning of the 21st or 27th of January, 1904, the eve of the fiesta of the patron saint of the pueblo of Sogod, a town annexed to that of Catmon, in the Island of Cebu,  several members of the local police and volunteers of said municipality, by order of the municipal president,  Santiago Montecillo,  went toward the mountain that stands in the sitio of Tagaytay within  the  said territory, in order to capture a well-known pulajan bandit named Claudio Monsanto, who, according to reports received by the president, was that morning on  the  said mountain.  As a matter of fact he was then and there found and, after some resistance, was captured by them. At about 4 or 5  o'clock  in  the afternoon they reached the pueblo and took the prisoner, Monsanto, to the  president.  He was suffering from two wounds, one in the forehead near the right eyebrow, and the other in the back of the head, which had been inflicted by the said police in  capturing him, on account of the stubborn resistance that he offered with a bolo with which he was armed.   The prisoner was taken to the camarin used as the municipal building, and,  by order of the  president, was tied up with a rope and hung or suspended from one of the lateral beams that  supported the roof of the camarin, with his arms open and his feet raised about two spans from the ground; the policemen further tied the prisoner by the neck, waist, legs and feet to a post or supporting pillar of the camarin.  At about 8 o'clock in the evening of said day the prisoner Monsanto appearing to be greatly exhausted and in a dying condition, the policemen, by order of the president, untied him and cut the rope by which he was hung;  he at once fell to the ground; the president then ordered that he be tied by the hands and feet, that a  stick  be passed between  his legs and arms and that he be carried to the cemetery and there killed and buried, saying that it was better to kill  him there than to send him to Cebu, in order to avoid trouble and citations such as had occurred in other cases.  In obedience to the orders of the president the policemen took the deceased to the cemetery, almost dragging him along the ground, and upon arriving there, the policeman Lope Comendador killed him by shooting him in the back, the bullet passing out through the chest.  The body was immediately buried in the same place.

On the day following the events above related,the municipal president of Catmon, Santiago Montecillo, forwarded three communications, one to the  judge  of the Court of First Instance of Cebu, another to the provincial governor, and a third to the commanding officer of Constabulary, all of the same tenor and dated the 22d of January, 1904.  Said communication read as follows:

"SIR: Yesterday, the 21st instant, Sabas  Brigoli,  sergeant of the municipal police of Sogod, and Rafael Baladjay, captain of volunteers of said town, captured an individual named Claudio Monsanto,  at the sitio  of Tagaytay, barrio of Tabonoc,  within  the jurisdiction  of the said town of Sogod.  When they reached the aforesaid  place, Claudio' was in a  hut in  the forest; understanding that they were going to arrest him he  drew  his pinuti with the intent to resist the police and volunteers, for which reason they shot him with,a gun, and he was  mortally wounded. The above-named  Claudio Monsanto  is a real pulahan who, from trustworthy information received, while  roaming in the hills has killed eight men.  For the information of the  president and his council, the  said Claudio Monsanto was conducted to the town in a dying condition, and the president directed  that he be  at  once  taken  to  the cemetery near by,  and  there dispatched and  buried;  the pinuti used by  Claudio Monsanto is a  very sharp cutting weapon of considerable length, and is  deposited with the sergeant of the municipal police.  I have the honor to report the foregoing for your information.

"Very respectfully,

"SANTIAGO MONTECILLO,     
"Municipal President."

Thereupon the provincial fiscal of Cebu, on the 19th of July, 1906, filed a written complaint charging Santiago Montecillo and Geronimo Pepito with the crime of murder, upon which 'these  proceedings were  instituted. The court below entered judgment on the 7th of February, 1907, sentencing Santiago Montecillo, as  author by instigation, of the crime of homicide, to the penalty of twelve years and one day of reclusion temporal, to suffer the accessory penalties, to pay an indemnity of P1,000 to the heirs of the deceased Claudio  Monsanto, and to pay the costs of the proceedings.  From this judgment the convicted man has appealed to this court. The case  against Geronimo Pepito was dismissed at the request of the fiscal.  (Fol. 41 of the record.)

From the facts above stated and duly proven in this case, it appears in a manner that  leaves no room for doubt, that the crime of murder, defined and punished by article 403 of the Penal Code, has been committed, for the reason that in the violent death of Glaudio Monsanto, carried out by certain agents of the authorities of  the municipality of Catmon, by order of Santiago Montecillo, the municipal president, there is present the qualifying circumstance of treachery, inasmuch as the deceased was tied by the hands and feet after having been cruelly  illtreated, and was shot in the back by the policeman Lope Comendador, while he was in such a position that it was impossible for him to defend himself or avoid the shot or escape from his aggressor; besides, the injured man had been already wounded in the morning,o and had been hung up and maltreated in such a manner that, when  he was mortally wounded by the  shot he was in  an  almost dying condition.

The accused pleaded not guilty, but, notwithstanding his denial and exculpatory allegations, among which is that, at  the time when the  deceased  Claudio  Monsanto was taken to the municipal building, the defendant was not there, and that the said Monsanto died as a result of having been hung up by order of the municipal secretary, Guillermo Bragat, and of Saturnino Brigoli; full proof of the guilt of the accused as the only responsible author by instigation of the murder in question, appears in the case, inasmuch as both the said Guillermo and Saturnino denied the imputation, and testified that when the witnesses  arrived at the municipal building, Monsanto was already bound and hung up  by order of President Montecillo who was there present and at which place they found him.

The responsibility of the accused Montecillo is clearly shown in the proceedings, not only by the three  reports or official communications informing the governor, the judge of the Court of First Instance, and the chief of Constabulary among other matters, of the fact that he ordered  the captured man, Monsanto, to be taken to the cemetery and there  dispatched and buried, but also from the testimony of eyewitnesses who heard the orders given by the accused.  Eulalio Montejo, Nicasio Brigoli, Simplicio Nuñeza,  Sinforoso  Simense,  and Ignacio Brigoli declared that they saw the deceased, Claudio Monsanto, bound and hanging inside the municipal building;  that they were  present and heard when the president,  Montecillo, ordered that the deceased be taken to the cemetery, and directed the conductors to there kill him and afterwards bury his body. They further declare that the place was full of people at the time, it being the eve of the fiesta of the  town.  These affirmations are confirmed by Mariano Montejo and Justo Umbao, who declare that the deceased was bound and hung up by order of President Montecillo, and that he was in  said position  when the parish priest, Father Eugenio Menchave, appeared at the municipal building to hear the confession of the deceased, having probably been invited to do so by the president himself, or by  some one  interested in preparing the deceased for death.  Afterwards, the accused ordered the rope cut by  which Monsanto  was hung up, whereupon the latter fell suddenly to the ground, and the president  then ordered him  taken  by  some  policemen  to the  cemetery to be  there killed and  buried.  According to  the witness Umbao, the accused  at  this  moment  said: "In order to avoid trouble and summons, as has happened on other occasions, it is better to kill him here than forward him to Cebu."

Eugenia Monsanto, daughter of the deceased, declares that, upon becoming aware that her father had been captured, she went with her mother to the municipal house to speak with the  accused, and begged President Montecillo to  release her father because he had committed no offense, but Montecillo refused to do so, saying that he would order him killed;  that protests were of no avail, and that whoever protested would join him in death. This declaration has been  cpnnrmed by Mariano Calvo who also testifies as to having seen the condition of the deceased and heard the president when he ordered him to be taken to and killed in the cemetery.  It further appears that another witness, Eustaquio Monterola, who was one of those who accompanied the deceased by  order of the president, asserts that Monsanto complained a great deal of thirst and  asked for water, after drinking which he said: "Tell my wife  and  my daughter to  work for their living  and to  look out  for themselves,"  and  that shortly after reaching  the cemetery,  Policeman  Comendador shot him in the back,  the bullet passing out through his chest, in consequence whereof he died instantly.

It follows therefore, from the facts above set  forth and other merits of the case, that the guilt of  the accused as the only author, by instigation, of the murder of Claudio Monsanto for which he is convicted, has been fully established.  For  the reasons stated in the  judgment appealed from, this crime can not be qualified as homicide because treachery and cruelty are both present in the commission thereof, and because neither the state  of disorder prevailing in the Island  of Cebu,  owing to  the  appearance of bandits called pulajans, nor the erroneous belief of the accused that, as municipal president, he could  order the death of Claudio Monsanto as being a pulajan and seriously  wounded, nor could the other  reasons therein set forth ever justify the crime ordered by the; accused,  and much less modify the nature of the crime in question.

In the decision of the case of the United States vs. Donoso et al. (3 Phil. Rep., 234), the following doctrine was established (p. 242):

"It is a legal principle universally recognized in all civilized countries that  the power to apply the laws in criminal cases, to judge and to carry the judgment into execution, pertains exclusively to the courts and the judges, and that no penalty can  be imposed for criminal acts except in accordance with the laws and by virtue of judgments rendered by competent courts  and judges.

"No matter how severe the laws of war may be, some investigation, if only the summary proceeding of a drumhead court-martial, is required before a delinquent can legally be made to suffer the death penalty.  Consequently the killing of Pedro Almasan can not  be justified as a lawful act."

Taking advantage of his authority as municipal president, the  accused, Montecillo, believed he had a right to constitute himself a judicial tribunal, judging, as he did, Claudip Monsanto, and sentencing him to death without due process of law and without giving him a hearing. He was entirely without authority of jurisdiction, and this he did after having caused the wounded man to be tortured and maltreated while he was absolutely helpless and defenseless.

In the commission of  the crime the presence of aggravating circumstances 6 and 11 of article 10 of the Penal Code  must be considered inasmuch as, for the deliberate purpose of increasing the  evil, the accused ordered the infliction of injury unnecessary for its execution,  which, owing to the existence of treachery as a qualifying circumstance is to be considered as an aggravation; furthermore, the guilty man took advantage of his public  office, and abusing his position as municipal president, was able to carry out his criminal intent to kill the deceased by means of his subordinates.  The manner in which the deceased was conducted  to the cemetery, in view of his condition at the time, is not sufficient in itself to constitute circumstance No. 12 of article 10 of  the Penal Code.  For the same  reason the mitigating circumstance established in article 11 of the code should be considered on account of the  race and deficient education of the  accused, which circumstance, being considered  as  having  great weight in the present case, compensates the effects  of the  two aggravating  circumstances mentioned  above.  For   this reason the penalty must be imposed upon the culprit in the  medium  degree, in accordance with the doctrine established in the decision rendered in the case of the United States vs. Bundal et.  al. (3 Phil. Rep., 89), which is of the  following tenor:

"In the application  of article 11 of the  Penal Code the courts may use it in their discretion to offset any  number of generic aggravating circumstances."

Therefore, it is our opinion that the crime herein should be qualified as murder, and the judgment appealed from being  hereby reversed, Santiago  Montecillo  is sentenced, as the author of the crime of murder, to the penalty of cadena perpetua, to suffer  the accessory penalties 2 and 3 of article 54 of the code, to indemnify the  widow and heirs of the deceased in the sum of P1,000, and to pay the  costs in both instances.  So ordered.

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