The judgment in this cause, imposing the death penalty, has been  submitted to us  for  review.

Notwithstanding that the Moro Jakan Tucko was courting the Moro woman Dahu, the latter finally married the Moro Maalum.  After Maalum and Dahu had been married, Tucko,  who  was  living  in a  distant place,  removed his residence to the sitio of Guiti, settlement of Bacun, Island of Basilan, where the house of the said spouses was situated, near which he took up his abode. On the morning of June 9, 1910, while the woman Dahu  was in the field engaged in planting sweet potatoes, she was approached by Jakan Tucko who asked  her what she was doing,  to which Dahu replied  that she was  planting  camotes, or sweet potatoes, in order to have something to eat;  thereupon Tucko said to her: "Although you are planting camotes, you will not eat them, because pretty soon  there will be a heavy shower."

At a very late hour of the night of the same day, the 9th, while the spouses Maalum and  DaM, and the latter's brother, named Saali, were asleep in their house,  the husband suddenly awakened his wife, telling her that he had been wounded.  When Dahu and Saali awoke they saw that Maalum was seriously wounded in the stomach, and when he was asked how he had  been hurt he replied that he had been assaulted by  the Moro Tucko, who must have gained entrance to the house by passing through the door, which had  been closed  before they  went  to  sleep that  night. Maalum  died a few moments after he had  been wounded. These facts took place one month after the marriage of the said spouses,  and were disclosed by the testimony presented and by the confession of the perpetrator of the crime.

For the foregoing reasons, on August 6, 1910,  the assistant prosecuting attorney of the  Moro Province filed an information in the  Court of First Instance  of Zamboanga, charging Jakan Tucko with the crime of murder, and, this cause having been  instituted, the  court in view  of the evidence adduced,  rendered judgment,  on  November  1, 1910, sentencing the defendant to be  hanged, to the accessory penalties, to indemnify the heirs of the deceased in the sum  of Pl,000, and to pay the costs of the trial.  It was ordered  in the judgment that  the said death penalty should be executed  at the very place  where the crime was committed and on a date to be fixed after the  judgment should have been reviewed by the Supreme Court when all the other penalties  imposed should be carried out.

It is held that the foregoing facts,  which were perfectly proven  at the trial of this  cause, constitute in fact the serious crime of murder,  provided for and punished by article 403 of the Penal Code, inasmuch as the deceased Moro, Maalum, was, on the night of June 9, 1910, violently killed in his  house while he was asleep,  and the aggressor employed ways and means in the commission of the crime tending  directly and specially to insure  its consummation, without  his  having run any risk  from such defense the victim might offer in protecting himself, the crime therefore being committed  perfidiously, with absolute security on the part of the perpetrator, and with manifest treachery.

Notwithstanding that the defendant Jakan Tucko pleaded not guilty, yet  he stated  under oath in the  preliminary examination  before the judge of  the tribal ward court, F, T. Winters, that, on the night of the crime he  entered Maalum's house and with a bolo called a lahut assaulted the latter while he was asleep, inflicting a serious wound in the stomach; that in so doing he was actuated by revenge, for the reason that the deceased Haalum abducted and married Dahu, his betrothed,  and because a feud existed between his family and that of Maalum, on account of a brother of the deceased Mudhajilon, having a year  before killed  a cousin of the defendant's, named  Botong-botong.

Aside from this confession, made frankly and of his own will and accord by the accused before a competent authority during  the preliminary investigation, the trial record also offers other irrefutable proof, which  ii the statement made by the deceased in articulo mortis, before'the latter's wife and his brother-in-law,  Saali,  a few  moments before  he expired, while he was in a precarious condition, for, according to the testimony of these relatives, Maalum, a few moments  before  he died, said that his wound  had been inflicted by the defendant Jakan Tucko.

The statement, made by the deceased when he was in a serious  condition  and death seemed imminent, is legitimate and admissible as a ground for a judgment  of conviction, and with all the more reason when, as in the present case, such last statement in articulo mortis is shown to have been corroborated by  the  confession  of  the  assailant and by other circumstantial evidence which, united and combined, produce in the mind the perfect and full conviction of the accused's  guilt as  the sole  proved  perpetrator  by direct participation of the crime of murder under prosecution.

In United States vs. Castellon et al. (12 Phil. Rep., 160), the following principle was laid down:

"1. Evidence;  hearsay;  dying declarations. - Notwithstanding the fact that hearsay evidence is not admissible at a trial, the  statements made  by  an individual  who is seriously wounded, at a moment when he was dying, being convinced that  there  was no hope of  recovery, constitute per 8e at least  a  grave,  conclusive and decisive indication of the culpability of the persons designated  by the dying man, inasmuch as it must be assumed  that he, being in so precarious a condition,  spoke truthfully, and that he was not induced by a desire to tell a He and to injure an innocent person."

The defendant,  overwhelmed with spite and resentment, on account of Dahu marrying the deceased instead of him, she preferring the former and rejecting the latter's proposal to marry her, and for the purpose of carrying into effect the revenge that he had premeditated, removed his residence from the sitio of Cobengbeng, a distant point, to that of Guiu, not far from the house of the deceased; and on the morning of the day of the crime, while Dahu was engaged in planting camotes in a field nearby, she was accosted by the defendant, Tucko, who said to her: "Although you are planting camotes, you will  not eat  them,"  and when she asked him why, he replied saying: "Because pretty soon there  will be a heavy shower,"  by  which Dahu,  and her father-in-law when he had been  informed of the incident, understood that a homicide or murder was. meant.  These facts constitute circumstantial evidence, logically  derived from the conduct, acts and words of the  defendant and corroborate  the other evidence  herein  above mentioned, all of which, united and combined, demonstrate the defendant's guilt as the unquestionable aggressor of the deceased Maalum.

In the commission  of the murder the presence of the circumstance of known premeditation, as well as that of its having been  perpetrated in the dwelling of the deceased, must be considered  as mere aggravating  circumstances, and it is improper to give weight to the circumstance of nocturnity, on account of its  being included in  that  of treachery which classifies the crime.  No circumstance of wrongful entry was attendant, for it was not proved that the  aggressor entered the house through any other way than that intended as an entry, and he must have entered and gone out through the door of the house, which was afterwards found  open.   The  said two aggravating circumstances are counterbalanced in  their effects  by the special circumstance established in article 11 of the penal Code, in consideration of the race to which the defendant belongs, his barbarous and savage customs, and his absolute lack of education and culture.   This special circumstance is with greater reason  applicable to the Moros, as shown by the  explanations of  the code  committee,  which precede the Penal Code, among which are the following statements:

"It is absolutely impossible, in  accord with the principles of justice and  in harmony with  the necessary social guarantees,  to establish penalties applicable to  each separate particular case, considering the various grades of civilization and  culture of the different races, their moral and religious  education, and their  capacity  to support  all the weight  of a perfectly well-defined criminal  responsibility. *  *   *  This committee  has not hesitated a single moment, in the framing of this proposed legislation, in basing its provisions on the principle of equality before the law, however,  it has recognized the advisability that the courts of the Philippines wisely continue the practice uninterruptedly observed  by them of  applying lesser  penalties  than those prescribed  for the crimes  specified in the code,  by taking into account, when reason and justice demand, the conditions of the native race or those of its members in  all cases where a strict enforcement  of a penal provision might result in  an aggravation  far  from the intention  of the legislator."

With respect to  the  admissibility of  the  record  of the proceedings had by the judge of the tribal ward court, in the form of a preliminary investigation of the crime charged in this case, Exhibit A, it must be taken into account that this document was through mistake sent to the office of the prosecuting attorney pf the province, instead of being transmitted to the clerk of the Court of First Instance, for which reason the trial judge, thinking that the records of the office of the fiscal of the Moro Province,  in all matters relative to criminal cases, formed a  part of those of the Court of First Instance,  admitted the said  document, which contains the defendant's confession and other statements taken  in the aforementioned preliminary investigation, the record of which proceedings was afterwards exhibited at the trial as an integral part of the record of the case, and  overruled the objection made  by the  defense to the  admission  in evidence of the said Exhibit A.

For the foregoing reasons, and the first two errors  attributed to the judgment of the lower court by the defendant's  counsel  being refuted,  it is proper, in our opinion, to  reverse  the judgment reviewed, and  to  sentence the defendant,  Jakan  Tucko, as we do hereby, to the penalty of life imprisonment, to the accessories 2 and 3  of article 54 of the Penal Code, and, though he should obtain a remission of the principal penalty,  to those of absolute  perpetual disqualification and surveillance by the authorities  during the remainder of his life, should these  accessory  penalties be not remitted on the remission of the principal penalty, to indemnify the widow and heirs of the deceased in the sum of  Pl,000,  and  to pay the  costs of both instances.   So ordered.

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