The complaint filed in this case is as follows:

"The undersigned fiscal charges  Ciriaco Ibanez, Enrique Laylay, Raymundo Ibanez, Tomas  Machete, Maximino Politico, Rufo Rabino,  Valentin  Fonte,  Domingo  Contreras, Maximo Regencia, Aniceto Agbac and Bartolome Monterey, prisoners in the provincial jail, with the crime of bandolerismo con asesinato, committed as  follows:

"That on or about the  1st of the month of April, 1909, the said accused Ciriaco Ibanez, Enrique Laylay, Raymundo Ibanez, Tomas Machete, Maximino Politico, Rufo Rabino, Valentin Fonte, Domingo Contreras, Maximo Regencia, Aniceto Agbac and Bartolome Monterey conspired among themselves to form a band of robbers for the purpose of stealing carabaos, horses,  rice, or personal property of any description, and on the night of April 23, 1909, the said accused, armed with bolos, assaulted the barrio of CalatraVa of the municipality of Badajoz of the sub-province of Romblon, Province of Capiz, P. L, entered the  houses of the Chinaman Sianga, of the Chinaman Lu-Quinghong and of Maria Paulino, and by means of force and violence took possession of various jewels, money, cloths and other articles, to the value of three  thousand  pesos;  they then took the Chinaman Siafiga, bound, along with the articles stolen, aboard a small boat commonly called  'Pasaje,'  belonging to the said  accused who were waiting on the beach in front of said barrio of Calatrava, and the said  accused  intentionally and maliciously with premeditation and treachery threw  the said Chinaman Sianga into the sea, his whereabouts now being unknown: In violation of law."

After due trial the court below acquitted Rufo Rabino, with his proportional part of the costs de oficio, and after finding all the other defendants guilty of the  crime  as charged in the  complaint, the  following  sentences were imposed:

Aniceto  Agbac and Bartolome Monterey were condemned to be hanged; Ciriaco Ibanez, Raymundo  Ibanez,  Tomas Machete and Valentin Fonte each to twenty-five years' imprisonment; Domingo Contreras and Maximo  Regencia  to twenty years  each;  and Enrique Laylay  and Maximino Politico each to ten years' imprisonment, in Bilibid Prison, and each to pay one-eleventh of the costs.  They appealed.

During the pendency of this case, Raymundo Ibanez and Valentin Fonte withdrew their appeals and are now serving the sentences imposed upon them by the trial court.

The following errors have been assigned:

Counsel for Ciriaco Ibanez, who has filed a separate brief, alleges that the trial court committed the following errors:

1. In declaring that the facts found constitute the crime of bandolerismo, defined and punished  by Act  No. 578, [518] as amended by Act  No.  1121, and not  simply robbery in band.
   
   
2.  In finding that  the  cloth, clothes, and other  effects found in the  possession of his client were taken by the defendants from the  stores of Lu-Quinghong  and Teresa Paulino, wife of Siariga, on the night of the 23d of April, 1909.
   
   
3. In finding that Ciriaco Ibanez entered into a conspiracy with the other defendants to commit this robbery; and,
   
   
4. In finding that the testimony presented  established the guilt of Ciriaco Ibafiez beyond a reasonable  doubt.
   

Counsel for the other defendants alleges:

1. That the court erred in finding that the proofs presented established the guilt of these defendants of the crime of bandolerismo beyond a reasonable doubt; and,
   
   
2. That the court erred in finding that the proofs established beyond a reasonable doubt that the defendants committed the crime of murder.

On the 14th of April, 1909, Ciriaco Ibanez rented from one Felix Tome a certain embarcacion, or sail-boat, called the Pasaje, for the purpose of transporting to Romblon nipa, palma brava, bejuco, and other effects.  At that time Felix Tome  and Ciriaco Ibanez resided in Pinamalayan, Province of Mindoro, but the boat  was at anchor in the bay of Balete.  On the night of the  18th of April of that same year, Raymundo Ibanez and Tomas Machete presented themselves  to  Felix Tom§,  saying  that they had been  ordered by Ciriaco Ibanez to take charge of the boat.  On  the following day these two defendants went to Balete, to get the boat, being accompanied by Jos& Tome, son of Felix Tome, who had  been  ordered by his father to accompany  these two defendants from Balete  to Pinamalayan.  On arriving in  Balete, Raymundo  Ibanez, Tomas Machete,  and Jos6 Tome* were met by Aniceto Agbac and Domingo Contreras and they all went aboard.  On putting out to sea the boat was steered  in the  direction  of  Pinamalayan, but  after having gone some  distance out the course  was changed in the direction of Sibali, a point on the Island of Maestre de Campo. Jose Tome" called the attention of Agbac to this change in the course and Agbac said that  the change was made on account of the condition of the wind.  About that time Raymundo Ibanez approached Jose Tome and said, "Keep  quiet, we must go to Calatrava and  when we arrive there you will then  find out what we are going  to do." When  the boat was between  the  Islands of Maestre  de Campo and Mindoro, being a  considerable distance from the land, seven armed men appeared on the deck, having come out of the bodega in the stern of the boat.   Up to this time Jose Tome, did not know these men  were  aboard.   Three of these men were Valentin  Fonte, Maximo Regencia, and Bartolome Monterey.  Maximino Politico, Enrique Laylay, and Ciriaco Ibanez did not accompany the other defendants on this voyage.  On the following morning, April 20, they arrived at Sibali and there took water aboard.  From that point they continued their course to the barrio of Calatrava, municipality of Odiongan, Island of Tablas, and anchored in a place called Pangoyoc, within the jurisdiction of that barrio. On anchoring at this point Raymundo Ibanez, Tomas  Machete, and Aniceto Agbac disembarked and went to the store of Lu-Quinghong, in the barrio of Calatrava, and purchased a certain amount of rice.  These three defendants remained in this store for some time and while  there  carried on a conversation with the wife of Lu-Quinghong.  After purchasing the rice they returned to the  boat and that same afternoon moved down and anchored just  in front of that barrio where they  remained until  sometime after dark. About 8 p.  m. all the men aboard,  with the exception of Jose Tome, and an old man called Pedro, disembarked, being armed with bolos, and went to the stores of Lu-Quinghong and  Sianga, which were only a few  yards  from where the boat was anchored.  On arriving at these two stores  which were only about 3 yards apart, they entered, and by means of force  and  intimidation  took therefrom  merchandise, money, and jewelry  to the value of more than P3,000  and placed same aboard the boat.  They also  tied the  elbows of the Chinaman Sianga behind his back and by means of force took him aboard.  They then started on their return trip  with the Chinaman and the booty aboard,  and when they were a considerable  distance from land, so far that the lights  on shore could not be seen, Aniceto Agbac directed that the Chinaman Sianga be placed near  the edge of  the boat.  This was done and while the Chinaman was standing in that position, with his elbows still tied behind his back, he was, by order of said Agbac,  pushed overboard by Bartolome Monterey.  Siaflga  has never since been heard of. The  defendants continued  their journey, arriving  at  the place whence they sailed the following day, and after disembarking they divided the effects and disbanded.   In  the division of these effects Ciriaco received his share.   These goods, found in the possession of Ciriaco when he was arrested, were identified by the owners as part of the  goods taken from their stores on the night of April 23d.  Likewise the goods found in the possession of Enrique Laylay and Maximino Politico were also identified in the same manner. These facts have not only been  established by the direct and positive testimony of Felix Tome, Jose Tome, Lu-Quinghong,  his wife Eustaquia Farconer, Teresa Paulina, wife of Siafiga, Marcos Bindol, and the officers who found a part of  the goods in the possession  of  Ciriaco,  Enrique  and Maximino, but also  by  the  free  and voluntary confession of Bartolome Monterey who admitted that it  was he who pushed the Chinaman  overboard.  In this confession  he sought to escape responsibility by stating that he was ordered to do this by his chief, Aniceto Agbac.

Enrique Laylay and  Maximino Politico took no part in the commission of this  crime, but a part of the goods, as we have said, were found in their  possession.  They attempted to explain how they came into the possession of these goods by saying that they had purchased them from certain traveling Macabebe salesmen.   This explanation was properly found by the  court below to be entirely unsatisfactory.  These  two accused are day laborers,  receiving small wages.  They have several members in their families dependent upon them.   They lived in the same locality with the other defendants and were all known to  each  other. These goods had been, according to their own testimony, in their possession for quite a while without having been used or even made into clothing.

The first question for  determination is whether or not the above facts constitute the crime of bandolerismo, as defined and punished by Act No. 518, as amended by Act No. 1121. The first section of said  Act, as amended, provides:

"Whenever three or  more persons, conspiring together, shall form a band of robbers for the purpose of stealing carabaos, cattle, horses, rice, or personal property of any description, or for the purpose of abducting persons,  either for the purpose of extortion or obtaining ransom, or for any other purpose, by means of force and violence, and shall be armed with deadly weapons for this purpose, they shall be deemed highway robbers,  or brigands.  *   *  *

"To prove the crime described in the previous section, it shall not be necessary to adduce evidence that any member of the band has in fact committed robbery or theft or abduction, but it shall  be sufficient to justify a  conviction thereunder  if,  from all  the  evidence, it  can be inferred beyond a reasonable doubt that the accused was a member of such armed band as that described in said section."  (Section 2.)

At the time these provisions were  enacted there were in force  statutes  defining and  penalizing robbery in  band, robbery with homicide, abduction, etc.  In fact every kind of robbery was defined and punished in those statutes (Penal Code) but there was no law punishing or making it a crime to form bands for the purpose of committing robbery, larceny,  or abduction.   At the time Act No.  518 was passed some  sections of the country were  infested with  roving bands of outlaws.  The articles  of  the Penal Code were considered  insufficient to meet the existing conditions and to adequately punish members of such bands.

"It will be seen at a glance that the main object in enacting this law (Act No. 518)  was  to prevent the formation of such bands; in fact the heart  of the offense consists in the formation by three or more persons conspiring together for the purpose of theft  or  robbery, and  such  formation is sufficient to constitute a violation of this Act.  It would not be necessary to show, in  a prosecution  under it, that a member or members of the band actually committed theft or highway robbery in order to convict him or  them; for the crime is proved when the organization and purpose of the band is shown to be such as is prohibited by the statute." (U. S. vs. Decusin, 2 Phil. Rep., 536.)

In the case at bar  the first move made was  the hiring of the vessel by Ciriaco Ibaiiez; then followed the journey or voyage which was made almost direct  to the barrio of Calatrava,  where the robbery was committed.  Only one stop was made on the way and that for the purpose of taking on water.  No  attempt was made at this  place  to commit any depredations.  On arrival at the said  barrio of Calatrava three of the defendants went  ashore and  purchased rice and then returned to the  boat where they spent several hours without molesting anyone.  About 8 o'clock that night they disembarked and went direct to the two stores of the offended parties, which were  almost together.  The band then divided  and robbed the said stores at the  same time, and after the completion of this robbery they returned to the boat with their booty and the Chinaman Sianga.  They did not attempt to molest anyone  else in that barrio.  The robbery of these two stores constituted one continuous act - robbery.  These men  were sufficient in number and sufficiently well armed to have committed other robberies and abuses if they had so  desired. They left this  barrio and went directly home, divided the effects, and then disbanded. They committed no other robberies or thefts.  From all the facts and circumstances in the case it appears that when they left their homes they had in mind to  rob these two stores and no others.   Their subsequent acts show this to be true.

"Whenever three or more persons, conspiring together, shall form a  band  of robbers for  the purpose of  *  *  * and  shall be armed with  deadly weapons  for this purpose, they shall be deemed highway robbers, or brigands, *  *  *."  [Sec. 1, Act No. 1121.]

The defendants were more than three in number.  They were armed with deadly weapons (bolos); they left their homes and went together  (except Ciriaco Ibanez,  Laylay, and Politico) to the barrio of Calatrava  and there committed the robbery.  From these facts it may  reasonably and lawfully  be inferred that they conspired together  for the purpose of committing  said robbery; but  may it,  in addition, be inferred that they also conspired together to form a  band  of highway robbers or brigands?   We think not.  The words "highway  robbers" and "brigands^  are synonymous..  A brigand is defined by Webster as being "A lawless  fellow who lives by plunder; one of a gang living in mountain  retreats; a highwayman;  a  freebooter."   A band organized for the purpose of committing depredations and disturbing organized society by disregarding the laws of the land and the rights of the  people,  something more than a mere robber.  We, therefore, conclude that the facts in this case do not constitute the crime of bandolerismo.

The fiscal characterizes this crime as that of bandolerismo with murder.  The allegations in  the complaint are sufficient to constitute this offense, but the facts established are not.  It  is  alleged in the  complaint, among other things, that the defendants,  being armed with bolos, did, on  the night of the 23d of  April, 1909,  by means of force and violence, appropriate jewelry, money and other effects to the value of P3,000; that after tying the Chinaman Siaiiga they took  him,  with  the effects appropriated, aboard  the boat; and that after so doing they did, intentionally, maliciously, treacherously, and  with known premeditation, push the said Chinaman into the sea.   These were the specific allegations the defendants were called upon to answer.  They denied having committed these acts.  As to Whether or not they did actually commit these acts was the real issue between the  prosecution and the defense.  The characterization of the crime was of no  importance to them.   (U. S. vs. Lim San, 17 Phil. Rep., 278.)   The above allegations are sufficient to constitute the complex crime  of robbery with homicide.  This was  the real crime for the commission of which the defendants were tried.  The prosecution confined itself to these facts and the defense denied  and sought to show that  the defendants did not commit these  specified acts.

It is, however, insisted that the crime of robbery with homicide has not been established, for the reason that  the prosecution failed to prove beyond a reasonable doubt that the Chinaman Siaiiga was, in  fact, killed by the defendants on the night of April  23.  Counsel  argues  that  the said Chinaman  might have  swum ashore, or could have been picked up or rescued  by someone passing in a boat;  or, in other words, that the corpus delicti has not been established. It is true that a conviction  can not be entered until the fact that the crime has been actually perpetrated has been first proven.  The defendants can not be convicted of this crime, unless the death of the Chinaman be first distinctly proved, either by direct evidence of the fact or by inspection of the  body.   The body has never been seen or inspected. But can there be any doubt as to whether or not the Chinaman was actually killed on  that night? We think there can  be none.  His arms were securely tied, hard and fast, behind his back.  He was thrown into the sea in this condition at a place far out of sight of land and the  lights on shore, and upon a dark night.  When he struck the water in this condition he  was perfectly helpless, as far as he himself was concerned.  He could not use his arms  and hands for the purpose of swimming, or saving himself, and according to the very nature of things he must and did lose his life.   The defendants took care that no one was near when the Chinaman was thrown overboard.  He could not possibly  have lived  more than a very few  minutes  not by any means sufficiently long enough to have afforded an opportunity for anyone to have come to his rescue.   These facts allow  our minds to rest perfectly easy when we say that the Chinaman did, in fact, lose his life on that occasion. No other possible conclusion can be reached.   The two essential elements in this crime, robbery and the killing of the Chinaman, have been clearly established.

The guilt of the defendants, Tomas Machete,  Domingo Contreras, Maximo  Regencia, Aniceto Agbac, Bartolome Monterey, Raymundo Ibañez, and Valentin Fonte  (the  last two  having withdrawn their appeals  are not now  to be considered)  of the commission of this crime, by direct participation, has been shown beyond a reasonable doubt.   In the commission of this crime there were present the generic aggravating circumstances of alevosia and nocturnity, it having been shown that  the defendants took advantage of the darkness of the night to commit  this deed, and that the Chinaman was, at the time he was murdered or thrown overboard, tied and  in a helpless condition.  In the commission of this crime none of the extenuating circumstances set out in article 9 of the Penal Code were present.   Upon these findings of fact the capital penalty must be imposed, unless in the exercise of the discretion vested in the courts, the extenuating circumstance of race should be taken into consideration in favor of the defendants, under the provisions of article 11 of the Penal Code.  The benefit of the provisions of this article can not be extended to Aniceto Agbac and Bartolome Monterey.  Agbac was the leader or chief of the gang.  He directed to a  great extent their movements.  He  gave the order  for  the murder of the Chinaman.  This order, as given, was carried out by Monterey.   Monterey offered no objection to the carrying into effect of this order, but, on the contrary, did not hesitate to do so.  He was to this extent more active than any other of the members, aside from Agbac.   It is true that the other defendants, who were  in the boat at the time the Chinaman was murdered,  made no effort to save him, but they were dominated and controlled by Agbac.  They appeared to have been reared in remote barrios and are of an extremely low order of intelligence.   We think,  under all the facts and circumstances that they should be given the benefits of the provisions of article 11 of the Penal Code, thereby reducing the penalty from death to life imprisonment.   (U. S. vs. Santa Maria, 4 Phil. Rep., 635; U. S. vs. Sison, 6 Phil. Rep., 421; and U. S. vs. Pindong, 14 Phil. Rep., 31.)

Ciriaco Ibanez, Enrique Laylay,  and Maximino Politico were not, as we have said, present when the robbery and murder were committed.

Articles 13 and 15 of the Penal Code read as follows:

"Art. 13, The following are considered as principals:

"3. Those who cooperate in the execution of the act by another act without which it would not have been accomplished.

"Art. 15. Accessaries  are those who, having knowledge of the commission "of the crime, and without having participated therein  either as  principals  or  accomplices,  subsequently take part in its execution in any of the following manners:


"1. By themselves making  profit  or by  assisting the delinquents to profit by the effects of the crime."

*          *        *       *      *       *       *

Ciriaco Ibanez certainly cooperated in the execution of the act by another act (the furnishing of the boat)  without which the  robbery would not have been  committed.  He made the first move in the matter.  He furnished the means of transportation without which the other defendants would not have gone to the barrio of Calatrava on that occasion. He had been in this barrio just a short time before and knew the Chinamen and their places of business.   It must be inferred from all these facts and circumstances that he entered into an agreement or conspiracy with the other defendants (not including Enrique Laylay and  Maximino Politico)  to commit this  robbery.   By so doing, and  having received a  part of the effects taken  from the said  Chinamen, he became a principal in a consummated crime.  There is no other logical  conclusion which can be reached.  This result is inevitable.   Now, what is that crime?

Title 13, chapter 2, [chapter 1]  of the Penal Code, defines and penalizes the crimes of attempted, frustrated, and consummated robbery.   The first  article of this chapter provides :

"Art.  502. Those who, with intent of profiting thereby, shall take possession of the personal property of another, with violence or intimidation of the person  or by employing force with regard to the personal property, are guilty of the crime of robbery."

The subsequent articles fix the penalties for the different kinds  of robbery.   These various classes have different penalties, depending upon the  attendant circumstances. The basis of all is robbery.  All are one and the same crime, the only difference being in the penalties.   If on account or on the occasion of robbery there results homicide the penalty is fixed at from life imprisonment to  death.  If the robbery should be accompanied by rape, or any of the injuries mentioned in Nos.'lj) 2, 3, or 4 of article 416 of the Penal Code, still different penalties  must be imposed upon the  culprit. The same is true all through this chapter, yet all the crimes are those of robbery, except those mentioned  in article 506, which  are  attempted  and frustrated  crimes  of robbery. These different kinds or classes of robbery with their corresponding penalties, are not distinct and separate crimes.

The defendants (except Ciriaco Ibanez,  Enrique Lay lay, and  Maximino Politico)  committed the crime of  robbery with hjomicide; as defined and punished under articles 502 and 503, No. 1, of the Penal Code.  This is one of the classes of robbery defined in said chapter.   In the commission of this crime or class of robbery there was also committed one of the other classes of robbery, being that defined and penalized  under articles 502 and 503, paragraph 5, in  relation with article 504 of said  chapter, which is known as robbery in band, it having been shown that more than three armed malefactors robbed the  two stores belonging to the Chinamen.

When Ciriaco  Ibanez furnished the  transportation  for the other defendants, he  did so for the purpose of having the said defendants  rob these two  stores.   The  robbery was  his principal object.  It is true that homicide resulted on the occasion of this robbery, but there is nothing in the record which shows,  or tends  to show, that Ciriaco gave instructions to kill the Chinaman or intended that this should be done.  When the Chinaman was killed  the robbery had already been committed, but the killing took place on the occasion of the robbery.  The murder was an incident to the robbery,  which places the crime, so far as the other accused (excluding Laylay and Politico) are  concerned, in a different class.   Yet under these facts and circumstances Ciriaco  can not be held  to be a principal in the commission of this  crime or  class of robbery, but he is a principal in the commission of the other class, robbery in band. There is nothing in  the record to show that he planned or conspired to commit the niurder.   It  has been suggested that as he, Ciriaco, entered into an agreement with the other defendants to commit this crime of  robbery, he is responsible for all the results of that crime, as he knew that death might be a necessary incident to the carrying into effect of this plan. If the death  of the Chinaman had occurred in the  very act or at the very time that the robbery took place, or while it was going on, and if it had been necessary to kill the Chinaman in  order to  successfully rob  these stores, then the question might have been different  (a question which we do not now decide), but as the actual taking of the property had already terminated, and the death of the Chinaman resulted  on the occasion of the robbery, we think,  in the absence of proof showing that the murder was a part of the original plan, that the foregoing holding is the  correct one.

Enrique Laylay and Maximino Politico, as we have said, were not present when the robbery was committed.  Neither were they present when the Chinaman was murdered.   They took no part in the agreement or conspiracy to commit this crime, but they did receive a part of the property or effects taken from the stores.  These effects were found in their possession and were identified by the owners.   These two defendants attempted to show that they had purchased these effects from traveling  salesmen (Macabebes).  This defense, as we have heretofore said, has utterly failed, as the proofs show that these defendants knowingly and willfully misstated the facts when they  swore that they had purchased said effects in that manner.  Taking into consideration the  fact that these two defendants lived in the same neighborhood or locality with some of the principal actors in this crime, that they are men of very limited means, that they had in their possession a considerable quantity of these effects, much  more than they could be  expected to have, and also the significant fact  of  their having attempted to deceive the court as to the manner of acquiring said goods, we think the proofs are amply sufficient to show that these two defendants knew that these effects had been taken from the stores of the Chinamen when they took them into their possession.

For these reasons the judgment appealed from is reversed and the defendants are found guilty of the crime set forth in this decision, and Aniceto Agbac and Bartolome Monterey are. each sentenced to be hanged by the neck until dead; Tomas Machete, Domingo Contreras,  and Maximo Regehcia are each sentenced to life imprisonment;  Ciriaco Ibanez to eight years eleven months and ten days' presidio mayor, and Enrique Laylay and Maximino  Politico each  to pay a fine of  500 pesetas, with the corresponding subsidiary imprisonment in case of insolvency.  These defendants are further sentenced  to  the  accessory  penalties provided  by law, and each to pay one-tenth of the coats.  It is so ordered.

Torres, Carson, and Moreland,  JJ., concur.

Johnson, J., concurs with the dispositive part.