This is an appeal by the  defendant  from  the sentence imposed  upon him by the Hon.  Judge Adolph Wislizenus.

On or about November 4, 1903, Richard Poggi, a Constabulary lieutenant,  arrived  in  the barrio of  Guibuangan, pueblo of Barili,  on the coast of the Island of Cebu, and took up  his quarters in the  barracks of  the  constabulary detachment, the corporal of which was Felix Cuison.   Poggi then ordered the latter, who was under  his commarid, to go to the house of Anastasia Marinas, an orphan girl about 14 years  of age, and bring her to the barracks with her aunt, Valeriana Escarpe; but these women, on being informed by Cuison, who acted as interpreter, of Lieutenant  Poggi's desire that Valeriana Escarpe should leave  her niece, Marifias, in the said barracks, in exchange for a certain sum of money which  he  offered her,  immediately rejected his proposal  and  left the barracks.   They went back home, where they  related to Facundo Balangao, Valeriana's  husband, what had happened, and then left the house to go to the mountains to  get some corn.

That night Felix Cuison, by order of Lieutenant Poggi, who had doubtless learned of the departure of the  said woman  and her  niece for the  mountains, went to  their house, accompanied by several armed Constabulary soldiers, and arrested  the said  girl's uncle,  Valeriana Escarpe's husband, the afore-mentioned Facundo Balangao, and  took him to the barracks.  Before their arrival at their destination, when they  were passing  the  house of Crispina Marinas, adjacent to the house of the prisoner, he charged her to take care of the house, because, he said, Corporal Cuison was taking him along in order that he might act as a guide in the search for the girl Anastasia.  As soon as  Balangao arrived at the barracks, Lieutenant Poggi, through Corporal Felix Cuison, who  acted as interpreter, delivered  the prisoner  to  the  private  Valentin  Fortuna, who was awakened by Poggi for the  purpose, with orders to take the said Balangao to the cemetery and there kill him with the weapon with which the said Fortuna was provided;  the  latter, complying with  the orders  of his superior, took the unfortunate Balangao to the  cemetery and there shot him twice from behind, inflicting upon him two wounds in the neck and back, after which he reported the facts  to Lieutenant Poggi,  who said to him:  "All right."

Some hours afterwards, the defendant Cuison with several constabulary privates, among them Valentin Fortuna, went by order of Lieutenant Poggi to the  place where the body of the deceased lay, and commanded the soldiers to spread out in skirmish line and discharge their firearms into the air; then the defendant, with the private Fortuna, went to the house of Epimaco Sosa to  ask him for a dagger to place beside  the body of a man whom they had shot, thereby to give the appearance that the deceased had been carrying a dagger.  These facts were related by Corporal Cuison in  his testimony  and were corroborated by Valentin Fortuna.

Thereupon, the provincial fiscal, on September 30, 1910, six  years  and eleven months after the  commission of the crime, filed an information in the Court of First Instance of Cebu, charging Felix Cuison and Valentin Fortuna with the crime of murder.  This case was prosecuted against Felix Cuison alone, and the court, on  December 28, 1910,  sentenced  the defendant, as principal, to  the penalty of seventeen years four months and one day of cadena  temporal to  indemnify the heirs of the  deceased  in  the  sum  of Pl,000, without subsidiary imprisonment in case of insolvency, and to pay the costs.  From this judgment counsel for the defendant appealed.

There is attached to the record in this case the judgment pronounced against Valentin Fortuna, with respect to whom it was held in the beginning thereof,  page 2, that no substantial grounds  appeared  to warrant his  prosecution for the crima. of homicide, and he  was therefore sentenced to the penalty of two years of prision correccional and to pay the costs.

The present case deals  with  a  horrible murder  committed by an agent of the authority in obedience to an order given by his superior, who was actuated by unchaste and unlawful designs.

From the  facts related, duly proved at the trial, it appears that Facundo Balangao, a former resident  of the pueblo of Barili,  was killed on the night of November 4, 1903,  by two  shots fired at him from a revolver by the constabulary  private, Valentin Fortuna,  at a moment when the deceased  had  his back turned toward the latter, in the vicinity of the cemetery of the said pueblo where he had been  conducted in compliance with a command given by Lieutenant Poggi.  The  post-mortem examination  of the body of the deceased by a curandero, conducted by order of the municipal president, disclosed that it bore two wounds, one in the nape of the neck and the other in the back.   Inasmuch as these two wounds were inflicted with a firearm while the victim was defenseless,  with his back  turned toward his slayer, and without warning; and as the custodian of the deceased, in firing the  shots at the latter from  behind  without giving  him any notice  whatsoever, employed  ways and means which  directly insured the commission of the act without risk to the person of the aggressor, such  as might have arisen from any defense that the assaulted  party  might  otherwise have  made, the crime committed is properly classified  as murder, pursuant to the  provisions of article 403 of the Penal Code, since it was perpetrated with alevosia.

Although the complaint was directed against Felix Cuison, a corporal,  and Valentin Fortuna, a  private of the constabulary,  from the very beginning of  the  case  there has  been  strong circumstantial evidence that this heinous crime was committed  at the command and by the direct order of  a lieutenant of  the said  organization,  Richard Poggi, who, although he remained in this  country,  or at least in this city, until November 24, 1910 (pp. 102 to 105 of the record), was not brought into court to be examined at the trial.

Notwithstanding the fact that the information on which this cause is based  was  also directed  against Valentin Fortuna, the court, by order of October 25, 1910, in proceeding against Felix Cuison,  found that  there were  no grounds for ordering the arrest  of  the said Fortuna, yet pages 90 to 92 of the record show that he was considered a defendant, his arrest having been ordered  (p. 12), and the judgment is attached to folios 106 to 108 of the record. This judgment does not appear to have been rendered in any  other cause,  for  none was  prosecuted  against him separately (p. 35).  Therein he  was found to be a  principal in the crime of homicide perpetrated  upon the said Facundo Balangao, and was merely sentenced to two years of prision correccional and to pay the costs  of the  trial, from which judgment it does not appear that he appealed and therefore he must now be serving the sentence imposed upon him.

With  respect to the liability of the defendant  Felix Cuison,  it must first be determined what participation  he had in the commission of the said crime.

Lieutenant Poggi employed the corporal, Felix Cuison, to get the girl, Anastasia  Marinas,  and  her aunt,  Valeriana Escarpe, into the Constabulary  barracks, where Poggi was, and  the  said corporal acted as interpreter to make the woman and the girl understand the lieutenant's desire that Anastasia Marinas remain with him as his querida or paramour.  It was also Cuison who, accompanied by several privates,  at the lieutenant's order, arrested Facundo Balangao, the unfortunate  husband of Escarpe, aunt  of  the young girl Marinas, and took  him to the barracks to be then turned over to Valentin Fortuna who, obeying  orders from the same  lieutenant, proceeded to kill the  prisoner in or near the  cemetery of the  said pueblo, by  shooting him.  These acts performed by Felix Cuison, in obedience to orders  from his lieutenant, do not constitute real participation or complicity in the crime under prosecution.

It was not Cuison, but  Lieutenant Poggi who gave  orders to Private Fortuna, and delivered to him the person  of  the deceased  in order that he might murder him.  The mere fact of Cuison's having acted  as interpreter in  order to make Fortuna understand the intention and criminal command of  the  lieutenant  who decided upon and wantonly directed the death of a peaceable citizen,  does not constitute participation by the defendant in  the commission of the crime.

The record  does not  show that the defendant Cuison performed any act in any way tending to the perpetration of the crime,  nor any of those defined  in  the three paragraphs of article  13, nor that specified in article  14, of the Penal Code, as it  was not shown that Cuison took a direct part in  the crime  or compelled any  other person to commit it, or  that he cooperated in its consummation  by some act without which it would not have been committed, or that he lent such cooperation by means  of acts  prior or simultaneous to its perpetration; and it can  not be held that the act of interpreting, in obedience  to orders  of his superior, the latter's criminal determination, so  that  it  might be understood  by the actual  perpetrator of the crime, constituted cooperation in the commission thereof.  Therefore it  is not  just  to consider the defendant either a principal or an accomplice in the said crime.

But we do find criminal liability in the acts performed by Corporal Cuison, even though  he obeyed orders from his lieutenant,  Poggi; such liability consists in his having intervened subsequently to the commission of the crime, by furnishing the means to make it appear that the deceased was armed and that it was necessary to kill him on account of his resistance  to the  constabulary men, who, to lend color to  such pretended resistance, discharged their firearms into  the  air, under the direction of  Cuison, at the place where the corpse was lying;  and also consists in his having tried to find  a dagger to place beside the deceased. Such acts must be characterized as concealment,  and since they are not only wrong  but also unlawful, the defendant is not exempt from  liability, even though he acted  in obedience to a command from his superior, because such command  was illegal and  in conflict with law and justice. Therefore it can not be alleged that obedience  was  due, or that it exempts the defendant from criminal liability.

The defendant Cuison knew that the man  whose body was lying near the  cemetery had been violently killed by the constabulary private Fortuna, through an illegal order given by Lieutenant  Poggi, and that it was not  true that the deceased was an armed outlaw whose resistance to the constabulary caused  a  fight  which necessitated the discharge of firearms at that place.   Therefore, the defendant, by performing acts  tending to make it appear that something else had occurred, and to  prevent the discovery of a heinous crime, is guilty of  concealment, for he took part in the commission of said crime as an accessory  after the fact.   (Art. 15, Penal Code.)

In committing the crime, the defendant must be allowed the benefit  of the special mitigating circumstance provided in article 11 on account of his  being a native,  his scant education, and  his status as  a subordinate of Lieutenant Poggi, from whom he may have received orders to perform the unlawful acts.  There is  no aggravating circumstance to offset this mitigating circumstance, so the  penalty for an  accessory after the fact  in the crime of murder, two degrees lower than that prescribed  for  the consummated crime, pursuant to article 68  of the Penal  Code, must be imposed upon the defendant  in its  minimum degree, which is presidio correcional in  its maximum degree to presidio mayor in its medium degree.

For the foregoing reasons, which dispose of the errors assigned, we reverse the judgment and sentence Felix Cuison, as an accessory after the fact, to the penalty of four years two months and one day of presidio correccional, and in case of insolvency of the real principal or accomplice to indemnify the heirs and widow of  the deceased in the sum of P1,000 and in case  of his own insolvency, to the corresponding subsidiary imprisonment, which shall not exceed one year, and to the payment of the costs in  both instances. So ordered.

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