The defendant, Albino Magtibay, and the two deceased, Nicomedes Pasia and his son Candido Pasia, were residents of the town of Ibaan, Province of Batangas.  The first two were  peddlers and traveled over different  parts of  their own  province and into the Province of La  Laguna selling their  merchandise.  The defendant had been absent  from his town for a long time prior to the death of  Nicomedes Pasia and his son.  About the first of May, 1908, Pasia and his son, Candido, left their town going in the direction of Cabinti, Province of  La Laguna, carrying with  them  cloth of the value of more than P600. On the 11th of  July,  1908, the bodies of these two persons, Pasia and his son,  were found in a small forest within the jurisdiction of  their town  of Ibaan.   On  examination  of these bodies  it was found that Nicomedes Pasia had  a wound which  almost separated his head into two parts; another wound in his side,  and one in the  abdomen which partly disemboweled him.   On the body of the little boy, Candido, was found a wound which almost separated his head from his  body, and  another  which  partly disemboweled him.   The two bodies were about two  brazas apart.  The bodies  were searched and  no money or other valuables found on them. Nicomedes Pasia was a man, the head of a family, and his son, Candido, was only about twelve years of age.

This defendant was arrested in Infanta in one of the last months  of the year 1909 and taken to the Province of Tayabas, where the provincial fiscal subsequently thereto, and on the 6th of January, 1910, filed a complaint against him, charging him  with  the crime  of robbery with homicide, alleging that the accused and one Filomeno Torres  accompanied the two deceased from the town of Pagsanjan, Province of La Laguna, and on arriving in the barrio of Santo Nino, municipality of Ibaan, Province of Batangas,  on a Friday  about the middle  of  July,  1908,  and in an  uninhabited  place, did maliciously, criminally, and with the object of robbing Nicomedes Pasia, murder the  said  Pasia and his son, taking from Nicomedes Pasia the sum of P500, all contrary to article 503 of the Penal Code.

The trial court after hearing1  the evidence adduced and the arguments of counsel, sentenced this defendant, on the 5th of February, 1910,  to be hanged by the neck until dead, to indemnify the heirs of the deceased in the sum of Pl,000, and to pay the costs.  The case is now before us en consulta.

At  the  time this  defendant was tried, Filomeno  Torres had not been captured.

The first witness  for the  prosecution, Santos  Pasia, a brother of the deceased Nicomedes Pasia, testified that on a Wednesday in  the  month of July, 1908, he was with the deceased in Santa Cruz, Province of La  Laguna,  where they spent that night together in a certain house there; that on that night the defendant and Filomeno  Torres came to this house  and saw  the  deceased  Nicomedes Pasia count his money, which amounted to P540.50; that when the defendant and Torres arrived at the house where they were staying that night, and after they saw the deceased Nicomedes count the money, the defendant, Albino Magtibay, stated to Nicomedes Pasia that as he  had been absent  from his town for a long time  he was going to accompany the deceased and his son to their town; that  very early on the following morning the two deceased, accompanied by this defendant and Filomeno   Torres,  embarked on  a steamer which  sailed  for Calamba.

The witness Pioquinto Torano testified that  about dusk on a  Thursday,  while  he was on his way  from Ibaan to Lipa,  he met the two deceased in company with the defendant and Torres,  going  toward Ibaan; that  he knew all of these  parties and that they were carrying small  bundles.

Mariano Magabo,  another witness for the prosecution, testified that about daybreak on  a Friday morning he met the two deceased in the  barrio of Adia, municipality of Lipa, in company with this defendant and Torres,  and  that on the following  day he was informed of the  death of these two deceased.

Antonio Mapalat testified that on a Friday in the month of July, 1908, shortly after sunrise, he met the two deceased, in company with  the defendant and  Filomeno Torres, in a small forest, within the jurisdiction  of the town of Ibaan, the deceased Nicomedes Pasia, the defendant, and  Torres each carrying small bundles; that a few  moments after passing these parties he heard the little boy cry out:  "Why are you killing my father?"  That on hearing this  cry he turned back, looked over the small hill, and saw Nicomedes on the ground covered with blood and this defendant pursuing the little boy,  and that on account of fear he continued his  march to Lipa.

Ambrosio Calalog testified  that  about 10  o'clock  on the morning of a Friday in July, 1908, he  saw the defendant and Filomeno Torres  in  a small  forest;  that at that time  he noticed blood on the clothes of Filomeno Torres; and that these two men were traveling very fast  in the direction of the barrio of Putol of that town.

Serapio  Pansoy, another  witness for the  prosecution, testified that about 12 o'clock on a Friday, the 10th of July, 1908, while  he was in a restaurant in the town of Rosario he met the  defendant and Filomeno Torres, who were quite well known  to him and who had just arrived at that place in a calesa; that  they asked him what he was doing there and he replied that he was on his way to San Pablo.  They then said to him: "Don't say anything to  anyone  in  our barrio that you saw us here."

Two policemen  of the town of Ibaan  testified that they had been looking for the defendant for a long time in order to arrest him on this charge.   One of these  policemen testified that the order of arrest was issued on the very day the bodies of the  deceased were found in that barrio,  but they did not state  on what" information the  order of arrest was issued.  It is  evident, however, that some information was  had at that  time which  was sufficient to order  the arrest of this defendant.

The accused, testifying in his own behalf, stated that in the month of July, 1908,  he was living in Infanta, in the town of Binangonan; that  he had been  absent from his town for  more than three years when he was arrested in Binangonan, in  one of the  last months of the year 1908, having spent these three years in the said town of Binangonan.  On being asked the ages of his children he stated that his youngest child was twenty-two months old when this trial took place.  He  was then asked to explain how it was possible for him to be  the father of this child when he had been absent and had not seen his wife for more than three years.   He failed to answer this question.   The defendant also testified that  when he left his home he carried with him  about P1,000 worth of cloth to sell, he  being a peddler; that he sold this  cloth and lost the greater part of the money gambling,  and  for this  reason  he was ashamed to return  to his home.  He  further testified  that while in Binangonan he worked part of the time for the president there at a salary of P30  a  month.   This  president, Pablo Astillo,  having been  called  as a witness  for the  defense, testified that  it was  a fact that  the defendant did work for him in April and May of 1909 and also  in September and October of  the same year at P15 a month; and that when the defendant  came to work  for him he gave his name as Segundo Maghinay.

Faustino Ravino and Eduardo Clado, two other witnesses for the defense,  were called and testified  that they were peddlers and from the same  town of Ibaan; that they were in Binangonan about  the time the two deceased were killed and, according to the testimony of these two witnesses, it would have been impossible for the accused to have  been in Ibaan at  the time of the murder.  But on a close examination  of this testimony it is very clear  that they were not  testifying the  truth.  They knew no days whatever except the ones they must give so as to have the defendant in Infanta at  the time of the murder.  They were unable to tell how they traveled from Ibaan and Lipa to Calamba and then  to Infanta.   They differed very much as to the places they stopped and  as  to  the  towns in which they peddled.   They said that  they went in a carromata on a road that was shown to be utterly impassable for a vehicle on account of its running through the mountains and being nothing more than a trail.   They made different statements about the town of  Mauban, a place  where they said they stayed one or two days peddling.  One of them said that this town  was about a mile from the  beach and the other said it was less  than  half a mile.  The  town, as a matter of fact, is right on the beach.

During the pendency of  this case in the Supreme Court a motion was filed, on the 25th of August, 1910, asking for the reopening of the  case  for the presentation of newly discovered evidence.   The newly discovered  evidence  which forms the basis of  this  motion consists of  a certified copy of the testimony  of Ambrosio  Galalog and Santos Pasia given before the justice of the peace of the town of Ibaan on the 14th  of July,  1908.  It appears that shortly after the bodies of  the two deceased persons were found the justice. of the peace of that town held an investigation to ascertain, if possible, the authors of that crime,  and during this investigation these  two witnesses appeared and testified before him.  In  this  preliminary investigation, according to the certified copies of the testimony, Pasia testified that he in company with the  two  deceased  left their town on the 7th of May, 1908,  for the Province of La Laguna for the purpose of selling cloth; that  when  they arrived in Pagsanjan of that province and after staying there a week they separated, the two deceased  going to the town  of Cabinti; that about the  end of May he returned to Ibaan without waiting for the two deceased; that he  had  no notice of anyone accompanying  them to  Ibaan; and that he knew  nothing about the killing of the two deceased.  This testimony of Santos Pasia contradicts on some important  and material points the testimony given by  him  during the trial.  In the investigation he stated that he returned to his town the last of May, while on the trial in the court below he stated that he returned toward the latter part of July.  He further stated during: the trial that he saw the two deceased in Santa Cruz on a Wednesday night when the defendant and Filomeno Torres came to the house where they were staying and that the following morning the two deceased,  together with the defendant and Torres, left Santa Cruz for Calamba on the same steamer.  But even admitting that he testified as stated in  this certificate his testimony during the trial Would not be destroyed for the reason that such testimony is so thoroughly corroborated.  When he gave this declaration before the justice of the peace the defendant and his companion had not been arrested, and it is  not difficult to understand why a witness under these circumstances  would hesitate to implicate these men in so serious a crime.

The other  witness in this  investigation testified that he lived in  the barrio  of Santo  Nino, municipality of Ibaan; that the  bodies of the deceased were found more than three hundred  brazas distant  from  his house; that he  knew nothing of  his own  knowledge as to the cause of the death of these  parties, while on  the trial he testified that he saw the defendant and  Torres on a Friday morning about 10 o'clock in the month of July and noticed blood on the clothes of Torres. There is  no material contradiction in  the  testimony of  this  witness, as he  did not  state that he saw the defendant and his companion commit this murder but only saw them in the small forest on that morning,  so his testimony,  given during the  trial, would not be weakened if his testimony given in the preliminary investigation were admitted to be true.  He was not asked during the preliminary investigation  if he  had seen this defendant at any time or place on or  about the 10th of July, but he was only asked if  he had any personal  knowledge as to who was the perpetrator of this crime.  He did not have any  actual personal  knowledge of the crime or the  cause of the  death of these  two. deceased, but  only saw the defendant and Torres in that  immediate vicinity on the same day that these parties were killed.  He did not then know that the two deceased had been killed on that day.   The investigation made by the justice of the peace being so  superficial we believe that the testimony of this witness would not be discredited even admitting that he so testified before the justice of the peace.

The defendant and Torres were seen in company with the two deceased between Lipa and Ibaan by the witness Torano. They were also  seen by the witness Magabo about daybreak on a  Friday morning in  the barrio of  Adia in company with the two deceased.  These four men were seen together on the following morning  by Mapalat, and this witness on hearing the little  boy cry out, "Why  are  you killing my father?" saw Nicomedes Pasia on the ground covered with blood  and the defendant pursuing the little boy.  The bodies of these two parties were found in that same locality.   This testimony is direct and positive.   It is also corroborated by the testimony of Calalog, who saw the defendant and Torres in that vicinity on that Friday  morning.  These same two men were seen by Pan soy in a restaurant on that same day. The defendant was not seen in that vicinity after that time until he was brought back to that province for trial over a year later.   The police of Ibaan had been looking for him during this time.

When Nicomedes Pasia  and his little son left their home they carried with  them over P600 worth of cloth.   When their bodies were examined  nothing of value was found on them.  The cloth had disappeared and also its value.  The evident motive  which moved this defendant and his companion to kill these people  was in order to obtain possession of their valuables.  This  is a clear case of robbery with double homicide.  In the commission of this crime there were present no  extenuating circumstances.   The  aggravating circumstance of despoblado has  been  clearly established, inasmuch as it has been shown that this crime was committed in a small  forest where there were  no houses and no one living near.  This location was purposely and deliberately selected for the commission of this crime in  order to avoid detection.  These facts fully comply with the provisions of the law for the establishment of this aggravating circumstance.   (U. S. vs. Salgado,  11  Phil.  Rep.,  56). There was likewise present in the commission of this  crime the aggravating circumstance of superior strength,  as it has been shown that the little boy was only  about twelve years of age.  The defendant and his companion took advantage of the weakness and tender  age of  this child to dispose of him in order, no doubt, that he could not appear as a witness against them.  This crime  was deliberately planned by this defendant  and  his  companion.  They saw the deceased Nicomedes count his money in Santa Cruz and at that time the defendant manifested his intention of  going to his home town in company with the deceased.  He carried out this plan and  when they  were alone  in a  small forest he, assisted by his companion  Filomeno Torres, deliberately and with known premeditation took the lives of these two people in order to appropriate this money.

It having been established beyond any question of  doubt that Albino Magtibay and his companion Filomeno Torres on the morning  of the 10th of July, 1908, did with deadly weapons take the lives of  Nicomedes Pasia and his son Candido for the purpose of appropriating to their  own  use the money which Nicomedes then had, and this crime having been committed with the concurrence of  the  aggravating circumstances above designated, by the very force of the law.the penalty, as provided in article  503, paragraph 1, of the Penal Code, must be and was very properly imposed upon this  defendant in its maximum degree.   The penalty of death imposed by the trial court being in accordance with the law and  the merits  of this case, the same is hereby affirmed, with costs against the appellant.   So ordered.

Arellano,  C.  J., Torres, Johnson,  and Moreland, JJ., concur.