The defendant,  Rufino Ancheta,  was charged with robo con homicidio por induccion, alleged to have been committed on the 26th of August, 1908, by inducing, persuading, and hiring four Igorots, named Laoyan, Guay, Dalocdoc, and Udcusan respectively,  to murder Tiburcio  Ancheta.  These Igorots, having confessed their crime, were convicted and sentenced to death, and the judgment has been affirmed by this court (No. 5136).^[1]  This defendant, after a  separate trial, was found guilty as charged,  and sentenced under paragraph 1 of article 503, Penal Code, to cadena perpetua, and to indemnify the heirs of Tiburcio Ancheta in the sum of P500, and to pay the costs of this prosecution.

Upon his  appeal to this court, the defendant assigned numerous errors, based upon the alleged insufficiency of the warrant and information, and the insufficiency of the evidence to justify the defendant's conviction of the crime of which he was  in fact convicted.  Passing for  the present the preliminary questions which go  to the regularity of the manner in which the defendant was charged and  brought to trial, we proceed to the consideration of the question of his guilt or innocence upon the evidence adduced.

The information charges:

"That on or  about the 26th day of August,  1908, in the township  of  Cervantes, Mountain Province, Philippine Islands, and within the jurisdiction of this court,  said Rufino Ancheta did intentionally, criminally, maliciously and feloniously, and  for the  purpose  of  gain, induce  the Igorots Laoyan Dolinen (alias Quibatay), Guay,  Dalocdoc, and  a certain Toog (alias Udcusan), to take possession of and to rob, by means of force and against the will of the owner, one carabao, the same being the property of one Tiburcio Ancheta and in said township of Cervantes, by first putting to death the  owner thereof, said  Tiburcio  Ancheta; and that the said Igorots, Laoyan  Dolinen  {alias Quibatay), Guay,  Dalocdoc, and a certain  Toog  (alias Udcusan),  in pursuance of  said  inducement of the  said Rufino Ancheta, did voluntarily, criminally,  feloniously,  and maliciously, and for the purpose of gain, take  possession of,  rob, and carry away,  by  means of force against the property and violence and intimidation against the person, the same consisting in having put to death  said Tiburcio Ancheta, one carabao, the property of said Tiburcio Ancheta, of the value of ?150, and  other effects, also articles of clothing."

The evidence offered on behalf of the prosecution shows that in the latter part of August, 1908, Tiburcio Ancheta, who resided with his Igorot wife Salome in a hut near the town of Cervantes in the Mountain District, was murdered by the four Igorots named in the information.  The murderers then took possession of the carabao and certain other personal property, and left for their home in the mountains. The prosecution claims that the crime thus  committed by the Igorots was suggested,  incited, and brought  about by the defendant, Rufino Ancheta, who sought the death of his uncle Tiburcio in order to satisfy certain feelings of resentment, and  also in order that he might inherit  Tiburcio's property.   The case rests upon the  evidence of the Igorots Laoyan and Guay,  and certain circumstances corroborative thereof.

The  defense contends that the defendant can not be convicted of the crime of robbery with homicide, because of the absence of the intent of gain to himself, one of the essential elements of the crime of robbery.  We can not give weight or force to this contention, because  whether or not the accused intended to gain or did gain financially or otherwise by the  robbery is wholly immaterial.  The mere fact of inducing the commission  of the crime makes him a principal. (Supreme court of Spain, judgment of October 20, 1881.) The crime was consummated and completed when the persons induced committed the crime with the intent to gain for themselves. The instant the crime became complete as to them, that instant the accused became a principal.  No further participation in the crime was necessary.  This is apparent from the provisions of article 13  of the  Penal Code as well as from reason and authority.

The four  Igorots named  in the complaint left their rancheria, called Booyan,.and went to a rancheria called Lesseb, where they passed the night.  Leaving there in the morning, by evening of the day they arrived at a point near Cervantes, where the defendant lived with his wife  Petra.  They were not acquainted with  the defendant, but went to his house and told him they wanted work, and were asked if they would like to kill a man, a relative who had mistreated him, and whom he would like to have out of the way.  As an inducement or reward for killing the man, the defendant told the Igorots that the man to be killed had recently sold some land, and received P40 therefor, and this sum they would find in the house; that they could also take his carabao and  exchange  it for a  younger one, which  he would later purchase from them.  As  the witness Guay testified, the defendant said to them: "If you go to work, you only make a little; it is better to kill this man and take his carabao and the P40 which was received from the sale of the house in town."  The Igorots agreed to kill the man.   The defendant was to go to a  place called Ululing in the morning, and remain  away  until after the crime had been committed. The Igorots  were to hide in the bushes south of the victim's house until night, when they should  go to his house and kill him.

The defendant left for Ululing, and the Igorots spent the day in the bushes, where the defendant's wife brought them food.  At night they went  to the defendant's house to eat. From there they proceeded  to Tiburcio's hut, some 70 yards distant, for  the purpose of carrying out their design, but finding him armed with a long bolo, they decided not to take the  risk involved in  attacking  him,  and returned to the bushes, where they spent the night.

The next morning they went to the house of one Bacolog, near Ululing, where they found the defendant taking his breakfast with Bacolog and an Ilocano named Abot.  When the  Igorots saw the defendant alone, they explained  why they had not killed Tiburcio, and the defendant replied: "Why did you eat my chickens if you are not going to do what I told you to do?  I came here to spend the night in Cambaguio because I  thought you were going to kill him."

The Igorots then spent three days clearing some land for Bacolog,  for which they received  P2.25.  About noon of the third day of their work  the defendant went to  them and said: "Now you must repeat what I told you to do,  and comply with our agreement.  I am going to Ululing today, and  I wish you to kill Tiburcio tonight.  You  go to the bushes and conceal yourselves in the same place where you were concealed before."   The four Igorots then left  the house of Bacolog and returned  to the defendant's  house, where they saw his wife Petra, who told them to go to Tiburcio's  house and pretend they  wanted to cook  their  rice there. They again concealed themselves in the  bushes, where as before  Petra brought  them their  food.  After darkness came they went  to the house of Tiburcio,  and having established familiar relations with him by means of appealing to  his  hospitality they killed him.  They were unable to find the P40, but took the carabao, and  carried it away with them.

The testimony of the Igorot witnesses gives a vivid idea of the manner in which this crime was committed, and the way  in which the savages were induced to act.  The witness Laoyan testified as follows:

"We started from Lesseb in the morning and we arrived at his house in the evening, and we went there for the purpose  of asking him whether or not he had some  work for us.   When  we stopped at his house on that night Rufino Ancheta said to us that he wanted us to go and kill a man because that man had  sold a house of theirs for the sum of P40 and that he had not given Rufino any part of it, and besides that we made rice fields and he did not give me but a very small part of it, and he said that I hate him for that reason.  Besides all of that, Rufino Ancheta said that Tiburcio was the son of one hundred fathers;  and then he gave us five chickens to kill and we looked at the galls of the chickens and  we found out from the galls that it was all right; that it  was a good time to kill a man. And then Pinong Ancheta  asked us whether we could kill that man that night or not, and we told him yes, we can kill him if you wish it done.  And then afterwards he said to me: 'I am living here alone with my  wife and the best thing for us to do is that I am going to Ululing tomorrow morning (or Cambaguio), and then you will also go to the bushes to the south of the  house and tomorrow night you will go to kill this man. I want to  go to Cambaguio so that I can avoid being examined  after that man has been killed.'  In the daytime,  according to the instructions of Pinong, we went to conceal  ourselves in the bushes around the house of Pinong, and at night we went to the house of Tiburcio for the purpose of killing him, but as we found him with a long bolo in his possession we were afraid to do it, and then we went back to  the bushes.  The next day in the morning very early we went to meet Pinong in the house of Bacolog, and when we arrived there Pinong asked us 'Why did you not kill him?' and we  replied, 'No, because we were afraid because he  had a long bolo.'  Then Pinong said, 'Why did you eat my chickens if you are not going to do what I told you to do?   I came here to spend the night in Cambaguio because I thought you were going to kill him.' And then I spoke to Bacolog about cleaning four parcels of  land of his, and we agreed to clean the four parcels of land for the sum of P2.25.  And Pinong and Abot, who was with him there,  went to plow some lands there while we  were cleaning off the four parcels.  Then on the day that we had been working there we spent the night also in the place of Bacolog, and  the  second  day in the morning very early Pinong and  his companion continued to plow  the lands where they were working on.  In the afternoon they left that place and we remained there.  When Pinong asked me why we did not kill that man Tiburcio, Bacolog was plowing some land and his companions  were some distance away from us.  I do not know where he  had gone to, and  no one heard this conversation.   And when we finished our work Pinong came back to Bacolog's house or place in  the morning very early and he said to us: 'Now you  must  repeat what I told you to do  and comply  with our agreement.  I am going to Ululing today, and I wish you to kill Tiburcio tonight.  You go to the bushes and conceal yourselves  in the same place  that you  concealed yourselves in before.' When we left Bacolog's place the sun was about  12  o'clock and  we went  to conceal ourselves  in the place where  we were concealed before.   We arrived at the house of Pinong in the afternoon and we did not meet anyone there  except his wife Petra.  We went to the house of Tiburcio and  we found them there cooking their supper; and while they were eating their supper we cooked our rice.  After our rice was cooked we also ate our supper.  And then all of us went outside of the house, in  front of the house on the porch.  As Tiburcio sat down in the doorway of  the door I and  Dalocdoc sat down in front  of him and Udcusan sat to his left, and Guay to his right; and while in this position they  struck him.  Guay struck Tiburcio with a club about as long as this, a piece of wood, and about as  large as my arm  [indicating a club a little less than a meter long], and Udcusan struck him on his legs  with a piece of wood or club.  And after this we  went inside of the house to search for the P40, which was the price of the house according to Pinong, and as we could not find it we asked his wife Salome  where that money was, and she told us it was used to pay for some clothing and bolos.  And then we took the carabao off with us because Pinong, Rufino Ancheta, promised that we should have that carabao as our reward as well as the P40.  And Pinong further told us that if we got that carabao we should exchange it for a younger carabao which has horns about like this [indicating a young carabao's horns about 8 inches long]  and then I will come and buy that carabao from you to use in my  Work.  We only had the intention to rob the carabao and  without induction  we would  not  have  killed that man but  we killed him because that man instructed us to kill him  [indicating the accused, Rufino Ancheta].   And Pinong instructed us not to take the young pigs and chickens, because  he  said  they would be used in feeding the people who would bury the body of Tiburcio.  I tell the truth  now, and we left in the house some palay, a jar full of rice, some other things, a barate, and an ax, and we also left there a brass jar which they used for cooking camotes for the pigs.   And he  [indicating Rufino Ancheta, the accused] also told us not to take the black shirt because that he said would be placed on the dead  body when it was buried.  When we asked Salome about this black shirt she said it was here in town in the possession of his mother. And the woman  Salome took with her the  three bolos and placed them in her belt; and myself and Salome opened the trunk out of which we took the clothing and skirt, and we took the clothing out and placed them in a basket and she took them with her."

The witness Guay said:

"We came  from our rancheria and  went to the  house of Pinong (the  defendant Ancheta). We came  from Boogan and we  slept in Lesseb,  and  we  came with Udcusan.  We came from Lesseb and we  arrived in Ululing to look for some  work.  We were four  with Udcusan, and we came to the house of Pinong.   When  we arrived at the house  of  Pinong it  was  nighttime.  We arrived that night in  the house of Pinong, and  he  asked us where we were going, and we told him to look for some  work, and he then  asked us if we wanted  to kill a man and we replied  to him, 'Why are we going to kill  a man? and then he said,  'I am his only relative and there will be no one to complain against you afterwards, and I am mad  at him because of the action of this man in  regard to the sale of  our  house in the town.'   Pinong said that he was mad because he  sold their house  in the town and did not give him anything, and also their rice fields and that  he did not give  him a part of them.  And  also he said that when he asked him for the carabao to work some he did not wish to let him  take it.  He said in the early morning 'you go away and I am going to look for some labor and at night you go and  kill him,  because if I am near  there they will call me to examine me.'  We went near  the house of Pinong in a gully near by to hide there, and our food  was  brought to us by Petra, the wife of Pinong.  All that we ate for dinner  was cooked by Petra, and Daloedoc went to look for her. At night we went to eat in the house of Pinong, and on that night we went to  the house of Tiburcio.  We found him armed  with a bolo and  we left.  We returned to the  place where we were  at first, where there were many camachili and other trees; at this time  it  was already daylight.  The  following day we went to work  in the rice  fields of Bacolog. We arrived at the house of Bacolog and we found Pinong, Abot, and Bacolog  there,  and our conversation there was not heard by Abot  and Bacolog.  When we arrived  there they had not eaten  yet.  We worked on the pacteo  (contract)  for  Bacolog  for P12.25.  Abot and Pinong  cooked the rice, and then  we  all  ate there.  After we had eaten we went outside, and  Pinong asked  us why we had not killed him; Abot and Bacolog remained in the house.  We answered him that  we did not kill him because we were afraid of the bolo  which he had.  And  while they  were plowing we cleaned  the grass away.   On that night we all slept  in the house  of  Bacolog.  The  following day they plowed and we continued  to clean the grass; we were in the house  of Bacolog for  three days.  Pinong said to us now that we had finished we must go and kill him, because I am going to Ululing, because if I do not they may examine me.  We finished about this time and we  returned where we  had been before where there were  many camachili trees and bushes.  On that day, as before, Petra brought us  our food; at night  we  went to the house of Pinong to eat and Petra told us to go there to Tiburcio's house with the excuse to cook our rice.  We arrived there with the  excuse to cook as  though we had  just arrived from Cervantes, in fact that is what we told Tiburcio.  After Laoyan had  cooked the rice we went inside to  eat, and after we had eaten we left the house and went outside of the house. And outside of the house we were in this position: Laoyan was sitting in front of Tiburcio; Udcusan was sitting to the left of Laoyan, and I, myself, was sitting over to one side of Tiburcio, and Dalocdoc was sitting near Udcusan.

"Q.  What  else? = A. Laoyan was  in  front  of  Tiburcio talking to him because he could not  defend himself, and this is  what Pinong  ordered us to  do.  We  gave him a blow in the face and Udcusan struck him on the legs.  We were the only two that struck him.  We  killed  him and searched the  house for the money which Pinong  said was there and we  could  not find anything.   We asked the woman about the money which Pinong spoke about, but Salome said  they used  it to buy rice fields.  The clothes the woman took, and the black shirt, which Pinong said we  must leave there because it was worth  much  with the Christians, we could  not find.  We  asked  Salome  about the shirt  and she said  yes  it was true that there was a shirt there but that it  was not in the house  then but in the town.  The  chickens and the pigs which Pinong said we  must leave there and the bolo also we did not touch. Pinong  said to us: 'Leave the pigs and the chickens; do not take them away; leave part of the chickens because the  people who will bury Tiburcio's body will have something to eat.'  We only carried away  the carabao because that is what Pinong had told us to do; he told us  to carry away  the  carabao  and the  money,  but the woman  said there  was no  money  there.  He  told us to  carry away the carabao to our house and that after the  palay was cut he would come there to get the carabao to bring it  here to Cervantes  to work.  And he further told us that 'if you go in the road and the people come to catch you, you must run away although you may have to leave the carabao, because if  they catch one of you it will be bad for us, and although they  may bring the carabao here I will  get  it the following day and give it back  to you.'  We carried the carabao away, but we did not  tie the woman up.  Although the woman says that we  tied her up  it is not true, we did not tie her up.  And Pinong said: 'After you have killed the man  Petra will come to Ululing to tell me about it, and I will come from  Ululing to report the matter  and then you will be far away.'   We killed him, it is true,  and Petra  did not sleep because she was watching.  Petra put out the light when we killed him.  Salome, when we killed her husband,  cried out.

"Q.  How did Salome cry out,  and what did she say? - A.  [Indicating by  a  horrified yell.]   And Pinong  then further said: 'If you kill him I will get the rice fields,  and when you come to Cervantes you must come to eat in my house.'  We celebrated a kanao with the chickens of Pinong;  we made a kanao in his  house and ate all of the chickens.

"Q.  How niany chickens did you eat? - A. Five chickens. Everything that I have stated is  true.  And  he said 'after you  have seen  the galls of the chickens if it  is all right then go;' that is what he said to us; that is what Pinong said.   We  did  not  see  anybody else in the house.   We only saw the two whom  I have  mentioned.  We took the chickens and went outside of his house to hide there.

"Q. But  whom did  Pinong inform  you  that you must kill? - A. Pinong is  the man who informed us of the sale of the  house, and proposed that  we must kill him for the amount of the sale of said house.  And in regard to the amount of the house they did not give us anything."

After this simple yet graphic description of the course of events from the inception of the crime to its commission, little more  needs to he said  as to the facts.  The court below, after a careful review  of all  the  evidence adduced at the trial, arrived at the conclusion that the story told by the Igorots was  true.   We are satisfied that the court was right in that decision.  There appear in the story told by these savage  witnesses so many of the badges and indicia of truth as to  leave in the mind no doubt concerning its substantial truthfulness.   Although the accused denies absolutely the testimony of these witnesses and states that he had never  in his  life seen them  until they appeared against him in court, still their narrative of the facts discloses a  knowledge of many matters so personal  to  the accused that it could have been acquired only through the most intimate relations  between  them.  The sale  of  the house and  lot  by Tiburcio and that the accused received no part of the proceeds, the tilling of the land by him and accused in common, the  black  shirt in the possession  of Tiburcio in  which he was to be buried, the leaving of the pigs and chickens for those who should attend the funeral, that  the accused was  working for  Bacolog and  was  at. Ululing during the  days immediately prior to the murder, that the accused had a wife and that her name was Petra, the  relationship  between  the  accused and  Tiburcio, and that the accused  would be one of those to inherit the land of Tiburcio, all these facts the Igorots knew.  From whom did  they obtain  this  information ?   The  impossibility  of answering this question otherwise than with the two words "The accused," is, under the facts of this case, irrefragable corroboration  of the testimony of the two hillmen.

This being  so, the fact that the accused was the instigator and inducer of the  crime charged appears so clearly as to require no discussion or argument.   (Supreme court of Spain, judgments of 20 October, 1881; 7 January, 1887; 12 January, 1899; Penal Code, art. 13.)

It now remains to inquire whether the sentence imposed by the court below was proper under the law.

Article 79 of the Penal Code reads as follows:

"Art. 79. The aggravating or extenuating circumstances that consist in the moral condition of the delinquent, in his private relations with the injured party, or in any other personal  cause,  shall serve  to aggravate or diminish the liability of only the  principals, accomplices, or accessaries who may be affected thereby.

"The circumstances which consist in the material execution  of the deed, or  in the means employed to accomplish it, shall serve  to aggravate or diminish the  liability of those persons only  who were acquainted with  them at the moment of the commission  of the crime, or of their cooperation therein."

Commenting  on this article, Groizard says, volume 2,  page 362:

"A new limitation, a new reduction  of the circle within which  aggravating and  extenuating  circumstances  may occur and  be considered, is created by this article.

"The circumstances attending the commission of a crime either relate to the persons  participating in the same, or to its material execution, or to the means employed.  The former do not  affect  all the participants in the crime,  but only  those  to  whom they  particularly apply; the latter have  a  direct bearing upon the criminal liability of all  the defendants who had knowledge thereof at the  time of  the commission of  the crime, or of their cooperation therein.

"The principle is clear and just.  If the law had failed to expressly recognize it, it could be fairly inferred from the rational nature of  the crime and  its legal definition, from  the scientific notion of the  imputability and legal determination of the  inherent liability  of the authors,  accomplices, and accessaries, from the general theory of. aggravating and  extenuating  circumstances, and from  the peculiar nature of  each of these as determined  by the legislator in describing them.

"Four malefactors commit homicide.  One  of them  is under eighteen.  Another is drunk.  The third  is a recidivist, and the other is neither under age nor drunk, nor guilty of any former crime.  Are they equally liable?  The first one has in his  favor an extenuating circumstance, to wit, minority, which does not affect his codefendants.  The second has another different circumstance in his favor, to wit, drunkenness, which  does  not extend  to  the other participants in the crime.  The third has an aggravating circumstance which affects him only; and the fourth, finally, shall  suffer  the penalty  corresponding  to  him without taking  into  consideration the  aggravating  circumstance which affects the one  or the extenuating circumstances which affect the others.

"Greater doubts, if not as to the principle itself, at least in the  practical application of that principle,  will arise under the second paragraph, which relates to the circumstances affecting the material execution of the deed, or to the means employed.  Such  circumstances under the  law can only aggravate  or mitigate the criminal  liability of those who had knowledge of the same at the time of the commission of the crime, or of their cooperation therein.

"The rule, of course,  as stated long ago by one of our more able commentators (Pacheco), has no application as to extenuating circumstances.  'The law  - says the writer referred to - refers in the second paragraph of this section both to extenuating and aggravating circumstances.  We who understand the theory of the latter, and can cite many instances  regarding the same, are unable to  understand the former, or to find a single instance in which they may apply.'

"It is the same  with us.  During our long practice we have never yet found a single case in which this  provision of the law has been  invoked with reference to extenuating circumstances, and  must confess that  we are unable to conceive one in which  it might be so invoked.  In so far as relates to the means employed in the execution of the crime, and other acts incident to the actual perpetration thereof, it is impossible to conceive that any mitigating circumstance which can properly be considered as to one of the defendants, is not equally applicable to the others, even to those who had no knowledge of the same at the time of the commission of the crime, or of their cooperation therein.

"The Neapolitan Code has recognized the difference which exists upon this point between extenuating and aggravating circumstances.   While it  applies the rule provided in case of personal circumstances, to extenuating and aggravating circumstances, it limits the  same to aggravating  circumstances where they relate to the material execution of the crime.

"It is to be regretted that our  code does not contain a similar provision.  In other respects it  would  be  easy to give illustrations of the application of the rules under consideration.  Two malefactors lay hands  upon an agent of the authorities.   One of them  is induced by a promise of reward by a third party, a  fact of which his codefendant has no knowledge.  That  which constitutes an aggravating circumstance as to one of  them does not apply to the other. A person induces others to commit the crime of abduction, or forcible entry of a dwelling.  The latter in undertaking to commit  the crime do so, employing, without the knowledge of the instigator of  the deed, deceit, fraud, and disguise.  They are all equally liable for the  commission of the crime, but the aggravating circumstance referred to attending the material  execution of the crime, shall only affect those who actually commit the deed.

"We are fully aware of the fact, however, that notwithstanding the simplicity  and justice of the rules contained in the said section, this will not always suffice to dissipate the shadow of the doubt which will arise in  the minds of our courts  when applying the same, particularly in certain difficult cases  in which the so-called qualifying circumstances, according to most of the  expounders of our law, play  an important part.   But these objections are  inevitable.   The letter of the law properly construed, the spirit of the same where the text is not clear,  and the previous knowledge of the  theories, sources, and origin  of these legal  provisions where the spirit and  letter of the same may appear insufficient, are the only means which the courts have  to comply with their mission in these and other similar cases.  It is  impossible for the law to cover  every possible case that may arise.  Wherever it attempts to do so it fails. Casuistry, which only furnishes a solution in certain specified cases, would take the place of the legal doctrine  within the principles of which a satisfactory solution can always be found."

The robbery and homicide were planned by the accused. He instructed the  Igorots exactly how to  accomplish them. The crime was carried  out in perfect consonance with his instructions.  By express arrangement with the hillmen the night was selected by the accused as the time for  the commission of the crime, to the end that it might be the more easily committed and that the chances  of discovery might be minimized.  Under the provisions of  the article above quoted, we are of the opinion that the aggravating circumstance of nocturnity must be imputed to the  defendant, nocturnity being one of the circumstances in the  material execution of the deed and one of the means employed to accomplish its commission, and he, at the time of the commission of the crime and before, being acquainted with that circumstance and of the fact of its use in the commission of the crime.  (Supreme court of  Spain, judgment of 12 January, 1899.)   Moreover, there must be imputed  to the accused in this case the aggravating circumstance of premeditation.   While premeditation is an inherent and integral element or quality of the crime of robbery and therefore can not, in that crime, be used as an aggravating circumstance (United States vs. Castroverde,  4 Phil.  Rep., 246; United States vs. Blanco,  10 Phil.  Rep., 298), such is nqt the case in regard to the crime of robbery with homicide as defined in articles 502 and  503 of the Penal Code.  In that crime premeditation, if it is present, may be used as an aggravating  circumstance  (supreme court  of Spain, judgments of 7 January, 1887, and 22 November, 1900) to augment the penalty to be  imposed.  This doctrine meets our approval upon principle.   That there was, in the case at bar, the element of premeditation is too clear for discussion.                

We have delayed until this moment the discussion of the questions raised by appellant's counsel respecting the irregularities which he claims were present in the arrest, arraignment, and trial of the accused.   His assignments of error upon that branch of his appeal are:

"1. That the warrant was issued without probable cause and was not supported by oath or affirmation and was issued without due process of law.

"2. The pretended querella  upon which the  defendant was tried is not verified or based upon a preliminary examination as provided by law.

"3. That  the pretended querella does not conform substantially to the prescribed form.

"4. That the pretended querella does  not state facts sufficient to constitute the crime of robo  con homicidio  por induccion."

A detailed examination of the record  before us discloses that from the time of the arrest of the  defendant until the termination of  his  trial no  objection was made to  any of the processes or pleadings,  except that, at the  beginning of the trial, the defendant's counsel interposed a demurrer to the complaint "because it does not set forth any intent of gain or that any gain was to be got  out of this robbery by the accused  in this case, Rufino Ancheta."   Giving the objection the full force  and  effect of a demurrer, it is still evident that it  is without legal basis as it appears, from what has been said heretofore, that it is wholly immaterial whether or  not the accused intended or expected to gain financially by the commission of the crime.

This being the only objection taken by the defendant during the whole course of the trial, we hold that the questions presented by the assignments above quoted can not be heard here.  Objections not having been presented opportunely, such defects, if any, as the assignments indicate, were waived.  Moreover, sections 9 and 10 of the Code of Criminal Procedure read as follows:

"SEC. 9. The information or complaint may be amended in  substance or form, without leave of court, at any time before  the  defendant pleads;  and thereafter, during the trial, as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant.

"SEC. 10. No information or complaint is insufficient nor can the trial, judgment, or other proceedings be affected by reason  of a defect in matter of form which  does not tend to prejudice a  substantial right of the defendant upon the merits."

No defect of form  or substance existed in the complaint or information which is not cured by these provisions.  No accused person may  be heard  to  challenge any  process, pleading, proceeding  or decision  in the courts of these Islands on account of any defect or irregularity which does not prejudice a substantial right upon the merits.

Many of  the questions raised by the defendant in his assignments of error  have been passed  upon by this court in the case of United  States vs. Wilson (4 Phil. Rep., 317).

The guilt of the defendant as a principal in the crime having  been clearly established and there being present at the commission of the crime the aggravating circumstances of premeditation  and nocturnity, with no extenuating circumstance, the penalty should have been imposed in its maximum degree.

The judgment of the court below is reversed and the defendant is hereby found guilty of the crime of robbery with homicide as defined in articles 502 and 503  of the Penal Code, and he is hereby condemned to the penalty of death, the accessories of article 53 of the Penal Code, to indemnify the heirs at law and next of kin of Tiburcio Ancheta in the sum of one thousand pesos  (P1,000) and to pay  the costs of this appeal.  So ordered.

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