Feliciano Bredejo, the appellant in this cause, is charged with having killed Cornelio Pilapil by inflicting upon him two wounds in his back, with a dagger, at a  moment when the  latter, who was entirely  unwarned, was climbing the stairs  of Ambrosio  Medina's house.   As  a  result  of the wounds, which were 3 to 4 inches in depth, the victim fell lifeless to the ground.

At 5 o'clock one afternoon Juan Niunay and Feliciano Bredejo engaged in an altercation over a wager on a cockfight;  Bredejo denied that the  bet had been  made  and refused to pay; Niunay became  quiet, and each went his way.  At 7 o'clock that evening  Bredejo returned to Niunay's store,  near the cockpit,  and again brought  .up the matter of the wager.   Evaristo Tudtud was present at the time and confirmed the fact that the bet had been made; thereupon  Bredejo, hearing  this, turned against  Tudtud and struck at  him with a dagger, which  he  was  able to avoid, but Bredejo immediately made another thrust at him which, owing to Tudtud's speedy  flight, did him no injury, and only tore  his shirt.  Bredejo ran after  Tudtud,  but could not overtake him; he then returned to the place from which he had  started  and assaulted Niunay who at first defended himself with a cane, with which he succeeded in hitting Bredejo on the nose, but,  as the latter  renewed the assault Niunay also took to flight  and was pursued by Bredejo for about 30 brazas before he gave  up the chase and again returned to the place of  the attack.

At this juncture, Cornelio Pilapil, who had been sleeping in  Ambrosio  Medina's  store,  was awakened  and  being advised of what was taking place, got up and, taking a light, started to climb to the upper floor of Medina's house; just then Bredejo rushed up excitedly  and at the moment when Pilapil was placing his  foot on the first step of the stair, Bredejo struck him in  the back  with a dagger and,  "as the defendant was zurdo  (left handed), when the first blow was struck, and as Pilapil was about to fall, the defendant gave him another blow with the dagger in the  same place; it was at this moment that he fell face downwards."  (Trial record,  p.  19.)  Thereupon  the defendant dared Medina to come down and ascended the steps,  but on  reaching the last step of the stairs, as Medina and  those  living in the house had climbed up into the loft, Bredejo descended, shouting that he would kill all of them, especially Niunay's family.  Such are the facts.

The fact that the defendant is zurdo, or left-handed, and that  Pilapil was not a resident  of Medina's  house, apparently explains the phrase found in the decision  of the lower court, to wit, that the  deceased was "a stranger and, besides, deaf  (sordo)"  (record, p.  4)  circumstances, however, which can have no weight in passing judgment upon the  criminal  acts,  as a  whole.  Although the evidence clearly shows that Bredejo violated  another's domicile, the private residence of Medina, where Pilapil  was enjoying the confidence and abandon one  naturally feels in the place he has chosen to rest and whither, moreover, he had gone to escape that criminal's fury,  yet the criminal law requires, in order to consider this circumstance as an aggravating one,  that  the crime  should  have been  committed in the offended party's  dwelling,  and Medina does not figure in this cause  as an offended party, nor does it in any manner appear that Medina's house was the dwelling of the offended party, Pilapil.

The crime perpetrated by  the appellant was duly  classified by the trial  judge as consummated murder, owing to the circumstance  of treachery attending its commission and in regard. to which no question has been raised.

The penalty for the crime  of murder is cadena temporal from its maximum degree to  death.  (Penal Code, art. 403, par. 2.)  As this punishment is divided  into three distinct parts, which  are  cadena temporal,  cadena perpetua, and death, each of which  form  a  separate grade  (id., art. 97), the minimum  penalty should  be imposed only when a mitigating circumstance alone  is present,  but if there concur both aggravating and mitigating circumstances they should be reasonably balanced in fixing the penalty  (id., art. 81).

In  the sentence imposed,  only one extenuating circumstance was considered in conjunction with that of article 11, to wit, non-habitual drunkenness,  together  with that of race,  the penalty  was imposed  in  its medium degree, while it should, in such a  case,  have been applied in the minimum degree.

However, in the opinion of this court, the penalty is properly applied,  for the reason that, in considering the  commission of the crime, account should have been taken of the fact of its being perpetrated at night, a circumstance which, according to the proofs, was not inherent in that of treachery; and as that aggravating circumstance should be considered separately, it is to be offset by the aforesaid extenuating one  and the penalty  must  be applied in the medium degree.

Therefore, the judgment  appealed from is affirmed,  with the costs of this instance against the appellant.

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