Brigido Marcial  was a servant in  the  employment of Eduardo Rotaeche, a representative  in Bulan, Province of Sorsogon, of the firm of  Lizarraga Brothers.  One night at 10 o'clock, acting in accordance with a previous arrangement made with the defendant, Fulgencio Gernale, he took advantage of an occasion when his master absented himself from the dining room to attend to an urgent matter which was to detain him for some time outside of his room, and entered the latter, extracted from the pocket of Rotaeche's trousers the key to the safe kept in an office located on the ground floor, and admitted Gernale into the office.  The defendant, with, key furnished him by Marcial, opened the safe and they  both extracted therefrom P1,038 in coin and banknotes  and a  bill  of exchange for the sum of 1,200, equivalent  all  together to 11,415 pesetas, the unit of va the provisions of the Penal Code.

Marcial was prosecuted in a separate case in which, as he testified, he w convicted.

The complaint in the present case is  limited to Gernale and expressly ch him with the crime of robbery.

The defendant's  responsibility,  as a point of fact, was held to have  b established  by the trial court, and no error of fact or  of law has  bee proven against such finding.

The evidence adduced by the prosecution was corroborated by the discovery, made  oy the fiscal himself, of a sum of money which  had been hidden  in a fence by the defendant,  and  by the latter's voluntary deli to the justice of the peace, of another part of the money which had been given  to Gernale,  according to his testimony, by Brigido Marcial.

The Court  of First Instance of Sorsogon classified the crime as" one  of robbery without weapons, committed in an inhabited house with force again things, by the guilty parties  using false keys; and  the value of the articles stolen exceeding 1,250 pesetas, the defendant was sentenced, pursuant to article  508 of  the Penal Code, to two  years four months arid one  day of presidio correccional,  to  restore, jointly with Brigido Marcial 356  pesos and 61  centavos, the value  of  the unrecovered remainder of the stolen property.

The Attorney-General, in this instance, understands that the crime commit not one of robbery, but of theft, as neither  was force employed against things,  nor were false keys used, and requests that, in accordance with paragraph No. 1 of article 518 of the Penal Code, the defendant be sentenced to four years nine months and ten days of presidio correccional

The crime that is the subject of the complaint, is robbery, and that punished in  the judgment appealed  from is  also robbery.  This classification concords  with the  dictates of the  law and the well-settled principles founded on interpretations of the Penal Code.   According to the provision of article 516 of this  code, false keys are: "2. True keys stolen from the owner."  "Robbery is committed with force against things by making  use false keys."   (Art.  508, subart. 3.)  Brigido Marcial stole from his master's room the true keys  with which the safe was opened.  "In order that true may be held to  be false keys," says  a decision of the  supreme court of Spain of March  18, 1896, "it is necessary that they should have been  st from their owner; if they were legitimately delivered to the defendant, the  crime is theft and not robbery."

As the value of the stolen property exceeded 1,250 pesetas and the robber was perpetrated without weapons,  the defendant should be punished in accordance with case  No. 2  of  article 508 of the Penal Code by the penalty immediately inferior to that provided for case No. 1 of the same article, which is presidio mayor in its medium and maximum degrees and cadena temporal  in  its  minimum degree.   The penalty immediately infer is the medium and maximum degree of that of presidio correctional and the minimum of that of presidio mayor, pursuant to rule 4 of article 75, in conformity  with  which  the  penalty was applied  in  the judgment appealed from,  but  not  in the  corresponding degree,  inasmuch as the minimum of the  minimum of the penalty is  two years  four months and one  day,  in  the absence of any extenuating  circumstance.   When the crime is  attended by no aggravating or extenuating circumstance, the pen must be applied in the medium degree, which would be from four years two months and one day to six years; but when there  is an aggravating circumstance, like nocturnity in this case, the penalty is  from six year day to  eight years.

The judgment appealed from is, therefore, affirmed; provided, however, that the penalty imposed shall be six years and one day,  with the costs of  this instance against the appellant.

Torres,  Mapa,  Johnson,  Carson,  Moreland, and  Trent, JJ., concur.