These defendants were  charged with the crime of robo en cuadrill a, alleged to have been committed as follows:

"On or about the night of December 28, 1910, the said accused and other parties unknown, all armed with  bolos, did maliciously and criminally proceed to the paddy fields of Braulio Carbonel  and  after employing violence  upon the watchman, Prudencia Carpio, and  tying up his  arms did seize with intent of gain some 10 uyones of Ilocano paddy, worth about P100. 

"The deed was committed in the municipality of Cuyapo, Province of Nueva Ecija, P. I., in violation of law."

Immediately after the prosecuting attorney had  closed the presentation of his proof, the attorney for the defendants Timoteo  Romero and Esteban Caramat, presented a motion  in the lower  court asking that the cause of action against them be dismissed and that they be discharged from the custody of the law,  for the reason that the proof presented by the prosecuting attorney was insufficient to show that they were guilty of the crime  charged.   (See  record. page 81.)
   
  After a consideration  of this motion by the Honorable George N. Hurd, the same was granted with  reference to the defendant Esteban Caramat and denied as to the defendant Timoteo Romero.  The lower court found that the evidence was insufficient to support the charges against the defendant Esteban  Caramat  and dismissed 'the  complaint against him and discharged him  from the custody of the law.   The trial  of  the cause then proceeded against the other defendants.

At the close of the trial the Honorable George N. Hurd, judge, found that the evidence showed, beyond  a reasonable doubt, that the defendants, Timoteo Romero, Anastacio Balut, and Mariano Antonio, were guilty of the crime charged in the complaint and sentenced them to be imprisoned for a period  of six years ten months and one day of presidio mayor, and  to jointly and  severally indemnify  the  said Braulio  Carbonel in the sum of P50 and to pay the costs.

The lower, court found that there existed in  the commission  of  the  crime  the aggravating  circumstance  of  nocturnity. 

From that sentence the defendant Timoteo  Romero appealed and made several assignments  of error, in this court, as follows: 

"1. In overruling the motion for dismissal with respect to the defendant Timoteo Romero for lack of  evidence. 

"2. In finding the appellant guilty of the crime of robo en cuudrilla as a principal and direct  participant. 

"3. In finding that the crime charged was committed with the circumstances qualifying criminal responsibility of cuadrilla and nocturnity, with sentence to the penalty of six years ten months and one  day of arresto mayor, and the accessories specified in the judgment appealed from."

With reference to the  first  assignment of error, to wit, that the lower court committed an error in refusing to dismiss the complaint against the defendant at the close of the testimony of the prosecution, it may be said that it was not an error for the lower court to refuse to deny said motion. The  lower court evidently believed and was convinced, at the time of the presentation of said motion, that a prima facie case  had been presented, sufficient at least to show that the defendant and appellant was guilty of the crime charged.   The lower court, in view of the evidence admitted, had a right  to deny  said motion.   In the  case  of United States vs. Abaroa (3  Phil. Rep., 116), this court expressed its disapproval of the practice of dismissing a criminal case on motion  of the attorney for  the accused,  when the fiscal announced that he had no more testimony'to offer.  The court said  that this practice should not be allowed, for the following reasons:

(1)  If this court should not agree with the conclusion reached by the court below, it would be authorized to reverse the judgment  (sentence) and  enter judgment  (sentence) convicting  the accused upon the facts proved by the prosecution,  thus  depriving the accused of making  a  defense below, if he  had  a defense; and

(2)  If this court, on disapproval of the judgment of the court below,  should order a new trial, the result would be that the prosecution would be obliged to place the defendant on trial twice, when  all the evidence could have been obtained in one trial, and the defendant would have the benefit of delay and the possible death or disappearance  of  witnesses for  the prosecution.

The court  announced the doctrine, in that case that the better practice is to  require  the defendant to  make  his defense, if he desires to offer  evidence in his own behalf, and not to dismiss the case on motion, until both  parties have presented their  evidence.

It will be remembered, however, at the time of the decision of U. S. vs. Abaroa {supra)   (December  29, 1903), that the prosecuting attorney, in case he did not agree with the conclusions of the lower court,  had a right to appeal to the Supreme Court from  the decision of the lower court. It having  been decided in  the case  of U.S.  vs. Kepner (1 Phil. Rep., 397; 195 U. S., 100; 11 Phil. Rep., 669), that the prosecuting attorney can not appeal from a decision of the lower court when that decision is based upon the merits of the case, there seems now  to be no reason for putting the defendant to the necessity of presenting his proof, if, at the time of the  close of the proof of the prosecution, there is not sufficient evidence to convince the lower court that the defendant is guilty, beyond a reasonable doubt, of the crime charged in the complaint  Whether or not the evidence presented by the prosecuting attorney, at the time he rests his cause, is Sufficient to convince the court that the defendant is guilty, beyond a reasonable  doubt, of the crime  charged, rests entirely  within  the  sound discretion and judgment of the lower court.  Whether he committed an error in denying the motion to dismiss, for insufficiency of proof, can only be determined upon appeal, and then not because  he committed  an error, as such, but because the evidence adduced during the trial of the cause  was not sufficient to  show that the defendant was guilty  of the crimd charged.
   
  Notwithstanding the decision of this court in the case of U. S. vs. Abaroa (supra), we see no reason now, after the doctrine announced in the Kepner case, for denying the right of the lower court to dismiss a case at the close of the presentation of the testimony by the  prosecuting attorney, if at that time there is not sufficient  evidence to make out a prima  facie case against the defendant   If,  however, the lower court, at that time, in the course of the trial, refuses to dismiss the defendant,  his  dismissal can not be made the basis of an appeal for the purpose of reversing the  sentence of  the lower court
 
  With reference to the second  assignment of error, to wit: That the lower court committed  an  error in finding the defendant guilty of the crime of robo en cuadrilla, it  will be noted  that two of the original defendants, Apolonio de  la Cruz and Felix Camacho, testified as witnesses  for the prosecution.  They each testified that on  or about the 28th of December, 1910, in the nighttime, eight or ten persons, each. of them with a carreton, armed with bolos, went to the field of Braulio Oarbonel, where the latter had a quantity of rice under the charge and care of  one Prudencio  Carpio,  and after manacling the latter and blindfolding him, took  and carried away a quantity of said rice, and later on, the same night, deposited the same in the granary of Timoteo Romero.
 
It will be noted also that during the trial of  the cause, Timoteo Romero testified in his own behalf.  He admitted the rice found in his granary soon after the 28th  of December, 1910, was the rice of Braulio Carbonel.  He testified, however, that at about midnight on a certain night in  December, 1910, his cousin, Anastacio  Balut, brought the rice to his house while he was sleeping and awoke him and asked permission to place the rice in his  granary.  This fact is denied in part by Anastacio Balut.  Anastacio Balut admits that he brought a part of the rice to the house of Timoteo Romero at about midnight of one of the nights of December,  1910.  He testified, however,  that the rice did not be- long to him,  but belonged to one  of the other defendants. He, Anastacio Balut, admits that he, together with eight or ten other persons, with carretones, armed with bolos, went to a certain place at nighttime and secured a quantity of rice, and  took the  same to the house  of  the  defendant, Timoteo Romero.   It will  also be remembered that Anastacio Balut is one of the defendants; that he was  sentenced by the lower court to  be  imprisoned  for a period of  six years ten months  and one  day of presidio mayor and that he did  not appeal.   We have then the positive declaration of two witnesses who had  been originally charged, jointly with the present defendants, that in the nighttime  on or about the 28th of December, 1910, they, together with Timoteo Romero and seven or eight other persons, went to the fields of Braulio Carbonel,  and  there by force and violence, being armed with bolos, took and carried away a quantity of rice and deposited the same in  the granary of the said Timoteo Romero.

For the  defense another  one of the defendants admitted that he, together with seven or eight others, armed  with bolos, went to a certain place, with carretones, and obtained a quantity  of rice and deposited the same in the granary of Timoteo Romero.  Timoteo Romero testified that the latter         witness, Anastacio Balut, was his cousin, and that he, Anastacio  Balut, brought a quantity of  rice to his house and asked permission to deposit the same in his granary, which permission was granted.  It thus appears that the declaration of Timoteo Romero, to the effect that his cousin, Anastacio Balut, brought the rice in question  to his house and secured permission to deposit the  same in his granary, is absolutely false.   Anastacio Balut swore positively that the rice did  not belong to him and denied  also  that  he had obtained permission from Timoteo Romero to deposit  the same  in  the latter's granary.

In view of these contradictory statements of Timoteo Romero and Anastacio Balut, we are driven to the conclusion that the declarations  of Apolonio de la Cruz and  Felix Camacho were in  accordance  with the facts and that  the declarations of these two witnesses show  beyond a  reasonable doubt, that the defendant, Timoteo Romero,  took a direct part in the  commission of the robbery described in the complaint presented in the  present cause, if he were not even the leader of said band of  robbers.

With reference to the third  assignment of error,  to wit: that the lower court committed  an error  in qualifying  the crime as that of robo en cuadrilla,  with the aggravating circumstance of  nocturnity, we are of the opinion,  after a careful  examination of the evidence,  that the crime  was properly qualified as that of robo en cuadrilla.   The evidence shows that it was committed at nighttime, in an uninhabited place.  It will be remembered that  Prudencio Carpio,  the person in charge of the rice stolen and who was manacled and blindfolded at that time, testified that he cried  out for help; that there were no persons living near the place where he  was guarding the rice; that some  fishermen who happened to be in the vicinity soon after the robbers left the place, heard his cries  and came to his assistance and unmanacled him.   We think that the  proof clearly shows that the place where the crime was committed was an uninhabited place.

The Attorney-General, the Honorable  Ignacio  Villamor, after a careful analysis of the evidence, makes the recommendation that the defendant and appellant should be sentenced to be imprisoned  in  the maximum degree of that provided for by paragraph 5 of article 503 in connection with  articles 504 and  505 of the Penal Code.  With this recommendation  we fully agree.  A man who organizes a band  for the purpose of robbing his neighbors of  the just fruits of their labors, should receive but little mercy at the hands of the courts.  Therefore, the sentence of the lower court  is hereby reversed, and it is hereby ordered that the defendant and appellant, Timoteo Romero, be sentenced to be imprisoned for a period of nine years of presidio mayor, with  the accessory  penalties of the law, to indemnify the said Braulio Carbonel in the sum of P70, the value of the rice stolen  and. not recovered,  and to  pay the costs.   So ordered.
   
Arellano,  C. J., Mapa, Carson, and Trent, JJ., concur.