The case at bar  consists in  that late on the afternoon of a day in November, 1911, a fire occurred in a building situated in the center of commercial district of Cebu, on the corner of the main streets, Magallan and Manalili, with numerous  neighbors  in its  vicinity, a  fire  that, the opportune intervention of Valeriano Bejia, was  easily  extinguished occurred in the upper part of the building, in a place used as  a kitche sleeping mat, a  pillow and some empty rice  sacks were  found burning, appears on page  53 of the record.

The building is divided  into dwellings  composed of an upstairs  for li rooms and a lower floor for  shops, occupied by five Chinese: Sy Japco, Chiaoco, Yo Senging, Po Yngco and Po Chengco.  The two latter only occupy lower floors or shops, not the upstairs.  The building has only t rooms for kitchens, one kitchen for the  exclusive use of Sy Japco and another for Jao Chiaoco, Yo Senging and Po Chengco.  Po Yngco did not use  a kitchen.  The fire occurred in the common kitchen of Jao Chiaoco, Senging and Po Chengco.  This kitchen communicates  with the other for t exclusive use of Sy Japco by a door.

Valeriano Bejia, a boy 18 years old, servant and  cook for Sy Japco, was the first to  see the  fire.  He  went up into his master's kitchen thin the fire was there, but upon reaching there he saw that the fire was  in kitchen which  throughout the trial  has  been called Po Chengco's.  Upon getting  upstairs and going from his kitchen to the one next to it, where the articles mentioned were burning, Bejia saw a gray-haired  Chinaman leaving precipitately, and this gray-haired Chinaman could not be other, he says, than Po Chengco, for he was the only one with gray hair among the occupants of those rooms.

Bernabe Digamo, another witness for the prosecution, states that in that common kitchen for three tenants he worked as cook for the defendant and Apolonio Magallanes  as cook for Jao Chiaoco; that  they  had both finished their work that afternoon and he had poured water over the fireplace  to put out the fire, then going down into his master's shop, he  saw that the latter had gone out into  Calle Manalili  in the direct of his  kitchen  and had returned to the shop out of breath.  A little l the witness heard the police shooting to give the alarm of fire.

This witness is also a boy 17 years of  age.  His master, Po  Chengco, occupied the lower  part of  the dwelling of which Sy Japco occupied the upper part, and this dwelling  opened upon Calle Magallanes at the corne of Manalili, while the kitchen common to Po Chengco,  Lao Chiaoco and another Chinaman had its entrance on Calle Manalili. The provincial fisc agreed that "in order for the Chinaman Po Chengco to get up into the kitchen where the fire originated he had to pass along Calle Manalili, l the shop and going along Calle Manalili and thence ascending to his own kitchen."  The witness Digamo. further testified: That anybody could go into Po  Chengco's kitchen, for its door  was always  open; that this kitchen was  usually closed at  10  p.  m.; that  before  10 o'clock anybody who wanted to go up into the kitchen could do so. 

"Q. You stated that before the fire you saw the defendant go toward the kitchen, did you see the defendant go up the stairway  to, the kitchen? I  did not really see that the defendant Po Chengco ascended the stairway but I saw that he went toward the  kitchen; I was inside the shop. 

"Q. You never left  the  shop, you  were always  in  the shop before and after the fire? - A. I didn't leave, I left when they took me (arrested police). 

"Q. Not having left the shop, how could you see that your master Po Chengco was going toward the kitchen? -  A. Because he turned toward Calle Manalili and our kitchen is there. 

"Q. And then you kept him in sight from the shop? - A. Yes, sir; I kept in sight and saw the defendant turn the corner of Manalili. 

"Q. Then you knew that the fire was going to occur? -  A. No. 

"Q. As you were in the shop on the night of the fire, didn't you notice whence your master came when he entered the shop, as you say? - A. No. 

"Q. Then you merely supposed that he came from the kitchen? - A.  Yes, s because when I said that my master left our shop going toward the kitchen it was  because he turned into  Calle  Manalili where we have our  kitchen just as when he returned he came from the same street."

The court made an ocular inspection of the place of the occurrence, drew sketch thereof, and in its decision gave the result of that search.  It says:

"Opening upon said Calle Manalili is a stairway without a door, whereby possible to ascend from the street and immediately to enter the back kit that of the Chinaman  Sy Japco.   In order to  get from Sy Japco's kitch to that of the  other Chinaman it is necessary to go through a door that can  be fastened  by  a bar, but this door was open  on the day in question; so it is evident that it was very  easy for anybody to enter S Japco's kitchen  from Calle Manalili and leave without being observed."

The Court of First Instance of Cebu classified the crime as frustrated and sentenced the defendant  to  eight years and one day of prision mayor, with the costs.  The Attorney-General, in this instance, classifies crime as consummated  arson  and asks that the  penalty be raised to sixteen years and one day of cadena temporal, the accessories of 56 and payment of the costs but since this penalty appears excessive in consideration of the insignificance of the damage done, he  suggests application of article 2, paragraph 2, of the Penal Code.

The grounds for the classification  as a frustrated crime Are:  (1) "Because real reason that the fire was not spread was the intervention of disinterested parties;" (2) "because  the  defendant believed that this fire,  started would be put out by the intervention of the passersby and other persons, on account of the time it  took place, but it  is no less true, that he others the frustration of  the  crime  begun by him" (p. 28).   The time took place was "at 5 p. m., the time of the  greatest crowds in the most frequented  portions  of  the  town"   (page  25) "*  *   *  and it is impossible to believe that a fire could have occurred in the whole house any part thereof because of the frequented place in which the house is situated and the crowded hour when the incident occurred, and so plain a evident is the fact that to the court it is impossible that  the  defend could  have intended to  burn the house, and this impossibility  is much corroborated by  the  fact established without  contradiction that the defendant's goods and articles in his  shop carried very little insurance he would have lost at least 2,000 pesos by  a fire,  and if it is further added that "the defendant had every opportunity to start a fire,  had he so wished, during the night without  being caught, it becomes  very evident that the defendant's intention  in the matter  was not really to burn th house and shop in question   *  *   *" (p. 26) "*  *   *   but to  arouse against  Sy  Japco the suspicion  and  charge of being an incendiary" (p 27).

The following conclusions are, put forward as the basis for the convicti the defendant:

(1)  "That when Po Chengco dealt directly with Senor Pedro  Cui,' said P Chengco estimated his rent  at only 25 pesos a month, as his  share for occupying his shop, while when Sy  Japco became agent for  Senor Cui, he charged Po  Chengco the  sum  of 45 pesos  a month, and because of this change  bad feeling and enmity existed  between the Chinaman Sy Japco and the  defendant Po  Chengco *   *   *"  (p. 25).

(2)  "That on  November  18,  19il, the defendant went to Sy Japco's kitchen, already described, and  entering by the door on Calle Manalili ascending the stairway to said kitchen, he placed therein some pillows a sleeping mats and a few other rags, soaked in kerosene,  and set fire to them,  then immediately descending the stairway, but without being discovered by a servant of Sy Japco's" (P. 25).

It  is possible  that  the  essential  errors  discovered  in the ground the  decision,  which are quoted  literally for greater correctness, are an inexact translation and confusion of the names.

The first error in the conclusions set forth consists  in taking as a pr that it was Sy Japco who substituted Po Chengco in the lease  of the who property.  It very  clearly  appears  that  it was Jao  Chiaoco.  He was asked (p.  36):  "Explain to the  court  how you came  to be the tenant Don Pedro  Cui instead of Po Chengco," He explains  it,  concluding  thus: *  *  and  up  to the present time  I continue to  deal only with Don Pe Cui for the whole house " (p. 37). 

"Q. When  you took the  place of Po Chengco how did you apportion the rent,, what did you have to pay and how much did you require from Po Chengco? - A. I required 140 pesos a month from Sy Japco. 

"Q. And from Po Chengco? - A. 45 pesos. 

"Q. And how much  did you have to pay to Don Pedro Cui? - A. 280 pesos.

"Q. Then, how much did your  shop  cost you? - A. 40 pesos. 

"Q. When did this substitution of yourself for Po Chengco in renting the take  place?- A.  In  the month of October (pp.  38  and 39). 

"Q. Did Po Chengco become offended at you rather than at Don  Pedro Cui? - A. I don't know whether he was offended with me. 

"Q. Then you  don't know whether Po Chengco was offended with anybody ?  - A. No, I don't"  (p. 43).

The second  error consists  in taking  as  a proven fact that the fire occurred  in Sy  Japco's kitchen.  It is  quite evident  in the case that occurred in the  kitchen of the three Chinamen, adjoining Sy Japco's.  T witness Bejia says; "I was in the shop of my master, Sy Japco, on the ni of the fire (p.  52); I was the first to  notice the fire; thinking that had occurred in the very kitchen of my master,  I went upstairs, and it appeared  that the fire started was  in Po Chengco's  kitchen; I was  th first to rush to the place and exerted  every effort to put out the fire 53); it was  I who put it out,  I alone, nobody came, although later the arrived  but the fire was already put out" (p. 54).

The third error consists in taking as a proven fact that the defendant w to the kitchen in which the  fire occurred by ascending the stairway to kitchen and placing therein  some pillows and sleeping mats soaked with kerosene and lighting them.

We have not found even the slightest proof that the defendant placed those objects, soaked them in kerosene  and lighted them, in said kitchen The witness for  the prosecution,  Digamo,  says: "When I  began  to wor for  my master  as  a cook these  objects were already there, they were placed on a broken  chair in the same kitchen; on the afternoon in quest they were there in the kitchen, they were not soaked in kerosene; after fire I did not again see them except in the  municipal hall and then the smelled of kerosene" (p. 66).   The other cook, Apolonio Magallanes, say same  and adds that said  articles  belong to Po Chengco's servants.

There is no other pertinent evidence in this case which must be examined appeal to decide the defendant's responsibility, except the statements o witnesses for the prosecution, Bejia and Digamo,  and those of the  defeat the defendant himself and Sy Siong, and that of the witness for the prosecution, Sy Japco.

The  statement of the  witness  Bernabe  Digamo cannot support any conclusion  regarding the guilt of the defendant. He states nothing with reference to the commission of the crime by the defendant.  This witness merely  says that he saw  the  latter leave the shop before  the fire, t the corner in the  direction of Calle Manalili, where the kitchen is loc return to the shop, while the fire  occurred a little later;  he did not all that he saw the defendant  go  up into the kitchen when he  went toward  Calle Manalili.   What he did  say is that his assertion  that t accused went  toward the kitchen is a mere inference  from the fact that the accused went toward Calle Manalili.  It cannot be inferred from this that he was in the kitchen and that  he there  placed articles soaked in kerosene and lighted them.

Aside  from the  fact  that this sole  affirmation cannot support any conclusion  of  the  commission of the crime, the defendant and  a witness testify  regarding the meaning of said fact. The defendant states, and witness Sy  Siong corroborates it, that if he  then  went  toward Calle Manalili it was to get from Sy  Japco's shop  some toys that  some people from  Bohol were buying in  his, and before the defendant had testified Japco  had  already made his statement, wherein he averred that the defendant had been  in his shop three  times on  the afternoon of the occurrence, and when asked by the  defense if "that toy which Po Chengco bought  on  the 18th in  his  shop, had been bought on credit," he replied that it had.

The statement of Valeriano Bejia cannot support any conclusion regarding guilt  of the accused.   In saying that when he rushed to  put out the f he  saw a  man with  gray hair  descend  the stairway,  the inference does not necessarily follow that that man had been in the kitchen, and l that  if he had been in the kitchen when the fire was  started it was he who had caused  it, and that the man with gray hair might be the accused and  nobody else.  Testimony of this  kind  is not sufficient to base a conviction upon.  .

The judgment appealed from is reversed and we freely acquit the accused, with the costs of both instances de oficio.

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