In the Court of First Instance of Albay, nine of the defendants were convicted of brigandage. On the 7th of November, 1905, at Daraga, about 3 o'clock in the morning, a party of seven men broke into the house of a Chinaman named Copua, killed the owner, violated a servant, and stole money and jewelry worth 625 pesos. About an hour later, on the same morning, the shop of the Chinaman, Tan Joco, about 200 meters further on, was robbed by a gang of ten men, who carried off 230 pesos, a clock, and a watch.

On the night of the 28th of November, 1905, the shop of the Chinaman, Dy-Paco, in the pueblo of Rapu-Rapu, was entered by robbers who secured money and property worth 1,500 pesos.

On the night of 21st of December, 1905, a like band stole 2,700 pesos in money and effects worth 810 pesos from the shop of Lim-Young-Chung in Bato in the Island of Catanduanes.

It is proved by abundant testimony that these four robberies were the work of the same band of which all the defendants, with the exception of Remigio Baron were active members. But one murder was committed, that of the Chinaman, Copua. In the use of the discretion accorded under the terms of the Brigandage Act, No. 518, we think that the court below properly restricted the death penalty in this case to two of the accused who were immediately guilty of the murder. In this respect each case arising under the act must be adjudged according to its peculiar qualities and surroundings. It is therefore necessary to determine which of the defendants were directly responsible for this deed. The trial court has convicted Pedro de la Torre and Martiniano Buenconsejo and has sentenced them to death. As to Pedro de la Torre the conviction is affirmed, his complete identification being reenforced by his own express admission of guilt upon the stand and his detailed narration of the crime. He was also proved to have been the man guilty of the violation of the servant.

It appears that of the seven men who attacked the house three, Pedro de la Torre, Martiniano Buenconsejo, and Eleno Barbadillo, entered by a window, and of these three, two only murdered Copua. Neither of the women who were present at the act have clearly identified Martiniano as the second man rather than Barbadillo. The probability that he was, is not sufficient foundation for his selection for a sentence of death. As to him and Eleno Barbadillo, who was sentenced to twenty years, the sentence of the court below is reversed and each of them is condemned to life imprisonment (cadena perpetua).

The sentence of Hilario Buenconsejo, who in a manner acted as leader of the expeditions to Rapu-Rapu and Catanduanes and of the Chinamen Quiama to thirty years imprisonment each, as well as that of Tomas Flor and Calixto Beo to twenty years imprisonment each, is affirmed.

Remigio Baron was sentenced to ten years imprisonment. One witness swore that he was seen in close conversation with Hilario Buenconsejo just before the party started for Rapu-Rapu, and some cloth found in the house of his brother was identified by one of the plundered Chinamen, as part of his property taken in the robbery. There is no other evidence against Baron, who was a man of intelligence and better position than his codefendants and was declared by some of them to have no connection with the band or its crimes. This evidence does not sustain his conviction and he is acquitted.

Each of the condemned shall pay one-eighth part of the costs of both instances. After the expiration of ten days let judgment be entered in accordance herewith, and ten days thereafter let the case be remanded to the court from whence it came for proper action. So ordered.

Arellano, C. J., Torres, Mapa, Johnson, Carson, and Willard, JJ., concur.