The subject matter of this case  is robbery in a dwelling with force upon things, but without violence against persons. The force consisted in break down the wall of the kitchen so that one  of the  malefactors  could get into  the shop while the others were outside.   It  was Juan  Morada who entered the shop to get, as he did,  coin  amounting to P20 and various articles such as  cans of salmon and sardines, rice, penknives, a razor a comb, all together worth P31.80 and not recovered, excepting some worth P1.17.   The owner of the shop, the Chinese Iyong, awoke and caught up a stick, but as he did so some things  fell and  made a noise, so Morada fl The Chinese called to his aid Estanislao Cabiguin, but  the  latter was a watching what, was happening and succeeded in seeing Morada  and the other defendants, the former in  the act of robbery and all afterwards fleeing.  They all carried sticks.   This took  place in the early  morning December 24, 1911.

The next day a penknife, a can of sardines,  and  another of salmon were found in the possession of Librado  Sugcay, who voluntarily confessed  to municipal police sergeant of Mambajao, the scene of  the occurrence, and through him the other  defendants were soon discovered.

Evidence  of alibi  having  been  rejected  and proof  of conviction being well established, the Court of First Instance of Misamis  classified the simple robbery,  but found against  all the defendants the generic aggravating circumstances  of nocturnity  and  a gang, and  moreover against Juan Morada, Isidoro Babano, and Librado Sugcay that of previous conviction, and against Gil Revilla that of vagrancy, sentencing the firs to  seven years  of presidio  mayor,  and  the latter to six years one day of the same penalty and all four  to the accessories of article 5 restitution of the articles  not recovered  or indemnity for their value payment of a proportional  part of the costs.

Isidoro  Babano and Gil Revilla appealed from this judgment,  while Morada  and Sugcay submitted  to it.   Later, Babano withdrew his appeal to this court.

With reference to the facts, no error is alleged that can alter the conclusion the trial court.

As for  the law,  the present appeal  is only maintained by Gil Revilla, has been sentenced to six years and one day of presidio mayor, as of  robbery with force upon  things penalized  in paragraph 3 of article of the Penal  Code.  This  paragraph 3 provides that when the malefactors are armed, but the value of the things stolen does not exceed 1,250   pesetas, as  in the  present case, there shall be imposed the penalty lower than that imposed in  paragraph  1, which is presidio mayor  medium degree to cadena temporal in its minimum degree.  Presidio correctional in  its medium degree being next lower than  presidio mayor in its minimum degree, according to rule 4 of article 75, it appears that court imposed the penalty in its maximum degree, because  of the twenty third and fifteenth  aggravating circumstances  that is, because the par convicted was a vagabond  and had  committed the crime at night and in a gang, holding this last circumstance to be merely a generic aggravating one.

It did not think applicable article 509 which penalizes qualified robbery because,  according to  its  interpretation, the robbery is  qualified when committed in an uninhabited  place and in a gang,  these two  qualifications concurring, which  does  not happen in the present case, for it does not appear that the house wherein the robbery was perpetrated was located in an uninhabited place.

It is true that, under the Penal  Code of the Philippines, robbery  with upon things, in order to be qualified, must be committed in an uninhabited place and in a gang; while robbery with violence against persons m committed in an uninhabited place or in a  gang.  The Penal Code Spain says for both cases:  "In an uninhabited place and in a gang."  The generic aggravating circumstance is expressed in the same way: "To commit the  crime at night or in an uninhabited place and in a gang," but not so the  Philippine Code, which says: "To commit it at night or in an uninhabited place or in a gang."  But notwithstanding that wording of the Penal Code Spain, in a judgment of November  6, 1880,  the supreme court laid  down the principle that if the acts of committing the crime by night or in an uninhabited place and in a  gang  constitute aggravating circumstance cannot be  doubted that the three phrases  which this  clause  grammatical contains refer to three different cases with the same legal force, to wit either the nighttime  or an uninhabited place or a gang  was selected for committing the crime.  It is quite unreasonable that in robbery with force things it be necessary, in order to be qualified, that it be committed in uninhabited place and in a gang together, and that  for robbery with violence  against persons  it be sufficient that it  be committed in an uninhabited place or  in  a gang separately.

In the present case this interpretation tending to establish a precedent practically of no  importance,  on the  supposition that article 509 prov that the penalty should be imposed  in  its maximum degree for qualified robbery, since the  maximum degree  (six years and one day)  has been imposed  upon the appellant Gil Revilla,  although as guilty  of  simple robbery with three aggravating  circumstances  nocturnity, gang, and vagrancy.

What this court thinks  improper is that he be punished, according to the opinion of the prosecution in this instance, with ten years  of  presidio mayor under No.  5 of article 503,  in connection with articles 504 and 505 because  it is evidently not a question of robbery with violence against persons to which No. 5 of article  503 refers.

The judgment appealed from is affirmed, with the costs of this  instance against the appellant Gil  Revilla, except the proportional part of the c corresponding to Isidoro A. Babano, according to  the  provision of this of September 12, 1912.

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