The defendant in this case was found "guilty of the crime of robbery, with violation and intimidation  of the  person, with resulting homicide, as the said crime is defined and penalized by article 502 in connection with paragraph 1 of article 503 of the Penal Code," and was sentenced to death. The case comes before us en consulta.

The first question presented for our consideration on this appeal is one  of the fact, arising from the claim of the accused that the facts proved are not sufficient to  warrant a conviction.

The court below found that -

"On the 26th day of August, 1904, a young woman by the name of Nicolasa Azucena left her home in the village of Concepcion  with the intention of going to Ajuy,  where she was to act as godmother at a christening.  She was accompanied by her cousin, Bonifacio  de Castro, and by two other men,  Roman Alfonso Molina and Tomas Punsalan.   They walked along the road leading to Ajuy, carrying  with them some clothing as well as certain small  articles of jewelry and adornment to be used at the christening.  They  were overtaken on  the  way  by darkness, but continued  their journey until they arrived at a bridge known as Tibit, situated in a lonely and  uninhabited spot, where they heard a voice issuing from the  darkness, commanding them  to halt.   They then saw a group of six men dressed  in  dark clothes who approached them stating that they were soldiers, or officers of the law, and demanded to see the cedulas of the male  members  of the party.  These men,  who  were all armed with long  bolos, rapidly approached the  little party of travelers and  separated the three men from the girl, two of the band carrying the latter away toward a place  called Pinantan,  where  they made  improper  proposals to her, which being rejected they beat her with sticks and finally one of them stabbed her in the left breast  with a dagger or bolo.   The unfortunate girl fell into  a ditch by  the roadside, where the miscreants  left her  for dead. She was, however, able  to make her way slowly  and painfully to the  house of  Bonifacio de  Castro's father, where she died on the following day after making an ante-mortem statement concerning the  attack upon her and  her companions, Which statement was introduced in evidence  and appears in the record.  Meanwhile, Bonifacio de Castro, Roman Alfonso Molina, and Tomas Punsalan also fell victims to  these  bloodthirsty wretches, having been  bound  and cruelly murdered with the exception of  De Castro, who survived the wounds inflicted upon  him but became permanently disabled as the result thereof.  During the course of these proceedings the assailants forcibly and by means of violence and intimidation possessed  themselves of all  the property carried by their victims, including Roman Alfonso Molina's and Nicolasa Azucena's clothing, as well  as  the articles which  Nicolasa had brought along for use at  the christening.  It is unnecessary to  dwell further  upon  the painful details  of this heartless crime, it being sufficient to state that the evidence fully and clearly establishes the guilt of the  perpetrators of the deed of the complex  crime of robbery with homicide, as denned and penalized by article 502 in  connection with paragraph 1 of article 503 of  the Penal  Code, with  the aggravating circumstances of  the culprits having taken advantage of the  cover of darkness, committed the crime in a  gang and in an uninhabited place (par. 15, art. 10, Penal Code); treachery  (par. 2, art.  10, Penal  Code);  employment of craft, fraud, and  disguise (par. 8, art.  10, Penal Code); taking advantage of superior strength (par. 9, art, 10, Penal Code); committing the crime with the assistance of armed persons  (par. 14,  art.  10, Penal Code)."

After an attentive examination of the  record in  this case and a careful reading of the evidence presented on the trial, we are satisfied beyond  question  that the defendant is guilty of the crime charged.  His  guilt is established  not only by the direct  testimony presented,  but also by every circumstance which the  case  discloses.  At the  time  of Laguna's arrest there was found in his  possession part of the clothing  taken from the victims of the assault,  which the accused expressly admitted to the justice of the peace of the town of Sara was his share of the plunder resulting from the crime.  Moreover, when arrested, he was wearing a pair of white trousers marked with the name "Alfonso" and an undershirt bearing the initials  "R.  A. M.," manifestly part of the clothing of Roman Alfonso Molina.  That the accused was one  of the perpetrators of this frightful crime can not be doubted.

We have therefore no hesitation whatever in affirming the decision of the trial court upon the facts.

The only  other question  before the court on this appeal is that of former jeopardy.  This question was presented for the first time on appeal,   It was not raised in the court below.  Passing the question whether or not it can be presented here on appeal  for the first time, we are clearly of the opinion that  the defense must be  disallowed for other reasons.

It appears from the record that the trial,  so called, from the judgment of conviction in which this appeal is taken, was  the second time  that the accused had  been tried for this  same offense.   Some time before his trial in  the  case at bar he had been tried upon a complaint charging him with the crime of which he now stands convicted  and had been found  guilty  of  that offense and sentenced to death. Upon making up the  record for transmission to this court to be used en consulta, it was found that that  portion of the same containing the testimony could not be  found.  A careful search through the records of the court, followed by an investigation by  the Attorney-General extending over several months, failed to disclose the missing record.  That portion of the case which  remained intact having in the meantime reached  this  court, an application was made by the Attorney-General for the return  of the record to the trial court  in order  that the evidence might be retaken for presentation to this court.  In  response to such application, this court made an order setting aside the judgment of conviction  and  sentence  previously rendered  and returning the cause to the trial court for a  rehearing.  In that  trial, conducted by the Hon. James Ross, judge of the Court of First Instance, the  defendant was again found guilty of said crime and again sentenced to  death.

Upon these facts the defendant raises here the question of former  jeopardy,  alleging that the  second trial was in violation of the Philippine  Bill and  of  the provisions of the Code of Criminal Procedure.

The proceeding in this jurisdiction when the death penalty has been imposed by the trial court is somewhat unusual. Section  26  of  the  Code of  Criminal Procedure, General Orders,  No. 58, reads as follows:

"When a defendant shall have  been convicted or acquitted or  once placed  in,jeopardy  upon an  information or complaint,' the  conviction, acquittal,  or  jeopardy shall be a bar to another information or indictment for the offense charged, or for an  attempt to commit the  same,  or for a frustration  thereof,  or for any offense necessarily therein included of which he might have been convicted under such complaint or information."

Section 50 of General Orders, No. 58 [as amended], reads as follows:

"It shall not be  necessary to forward to the  Supreme Court the record, or any part thereof, of  any case  in which there shall have been an acquittal, or in which the sentence imposed is not death, unless such  case shall have been duly appealed; but such  sentences shall be executed  upon the order of the court in which the trial was had.  The records of all cases in which  the death penalty shall have  been imposed by any Court of First Instance, whether the defendant shall have  appealed or not, and  of all  cases in which appeals shall have been taken shall be forwarded to the Supreme Court for investigation and judgment as law and justice shall dictate.  The records of such cases  shall be forwarded to the clerk of the  Supreme Court within twenty  days, but not earlier than fifteen  days after the rendition of sentence."

It is apparent from  these  provisions that the judgment of Conviction' and  sentence thereunder by the trial court does not; in reality, conclude the trial of the accused.   Such trial is not terminated until the Supreme Court has reviewed the facts and the law as applied thereto by the court below. The judgment of conviction entered  on the trial is not final, can not be executed, and is wholly without force or effect until the cause has been passed upon by the Supreme Court.  In a sense the trial court acts as a commissioner who takes the testimony and  reports thereon to the Supreme Court with his  recommendation.  While in practice he enters  a judgment of  conviction and  sentences the prisoner thereunder, in reality, until  passed upon by the Supreme Court, it has none of  the attributes  of  a  final judgment and  sentence.   It is  a  mere recommendation to the Supreme Court, based upon  the facts and the record which are  presented with it.   This is meant in no sense to detract from the dignity and power of Courts of First Instance.   It means simply that that portion of  Spanish procedure which related to cases where capital punishment was imposed still survives.

It is evident, therefore,  that until the Supreme Court has passed upon the cause  en consulta the trial  of the accused is not finished, and jeopardy, although it may have attached, has not been terminated.   In principle, it is very much like those cases in which  it  has been held that, though, in general, jeopardy begins when the trial begins, yet if afterwards, and before a decision has been reached, some unforeseen circumstance arises which renders it impossible for the trial to proceed or for a valid  judgment to be rendered, the trial  may be  suspended  and  the  defendant again put on trial for the same  offense.  Whether this exception with respect to the general rule relating to former jeopardy is put on the ground of necessity which requires a modification of the doctrine in the interests of public justice Nugent vs. State, 24 Am. Dec,  746; People vs. Goodwin, 18 Johns., 187), or whether on the ground that the supervening facts show that no jeopardy ever existed  (Bishop's Crim. Law, par. 1031; Mixon vs. State, 55 Ala., 129; 4 Crim. L. Mag., 488), or whether on the ground that though jeopardy has attached it has never ended (Wharton's Crim. PL & Pr., par. 508; 4 Crim. L. Mag., 488), the  result is the same.

In the case of Simmons vs. U. S. (142 U. S., 148), it was held that when it is made to appear to the court during the trial of a criminal case that either by reason of  facts existing when the jurors were sworn but not then disclosed or known to the court,  or by reason of outside influence brought to  bear  on  the  jury  pending trial, the jurors or any of them are subject to such bias or prejudice as not to stand impartial between the government and the accused, the jury may be discharged and the defendant put on trial by another  jury, and the defendant is not thereby twice put in jeopardy within the meaning of the fifth amendment to the Constitution of the United States.  This principle is laid  down and followed in People vs. Goodwin (18 Johns., 187); Mixon vs. State (55 Ala., 129); State vs. Emery (59 Vt.,  84); State vs. Falconer (75 Ia., 416);  U. S. vs. Perez (9  Wheat.,  579); Commonwealth vs.  Bowden  (9 Mass., 494);  Commonwealth vs. Purchase (2 Pick., 521); State vs. Washington (89 N. C, 535); State vs. Washington (90 N. C, 664); Re Ascher (130 Mich., 540); U.  S.  vs. Ballentine  (4 Phil. Rep., 672).

It was not intended by the provisions of the Constitution or of the Code of Criminal Procedure providing against an accused being placed twice in jeopardy for the same offense to destroy or disrupt the system of procedure which is provided for the trial of criminals in the country in which such provisions are  in  force.   The purpose of  such  constitutional provisions is simply to protect the accused from going through a second time the proceedings which constitute the trial under the system then in vogue, whatever that system may be.  Here the proceedings which constitute the trial of the accused are not terminated by that portion had in the  Court of First Instance.  They are terminated  only when the Supreme Court has passed upon them en consulta. Until that time arrives, jeopardy, although it has attached, has not terminated,  and during that time the proceedings may, by reason of unforeseen  circumstances, be suspended and the case returned for action de novo.

Every person who finds himself in a court of justice, in whatever capacity, must  hold himself while there subject to those unforeseen events which suddenly and unavoidably intervene and  change  the whole aspect of  things.  The sickness  or death of the judge, or of counsel for the prosecution, the destruction by fire or flood of the court-house and all the records and  evidence of the pending trial -  any of these things are sufficient  to interrupt the course of the proceedings and to require  that  they be  begun anew. Such events weigh equally against all.  As no one can be charged with their occurrence, so no one can legally lose or profit by their results.   While the law protects persons charged  with  crime from the unjust and  arbitrary  acts of man, there is no shield which may be interposed against the tyranny of unforeseen events.   Until the  proceedings which, under the  system which the law  provides,  constitute his trial are terminated,  the  happening of an unforeseen  event  which renders the continuance of  his trial for the time impossible, as it can not be  used for his  conviction, can not be urged for his  absolution.  As the burning of this court-house with all the criminal records which it  contains could not be used as a basis for the affirmance of the convictions of all  those whose causes are pending in this court, so the same event could not be urged as a reason for the  delivery of such  persons  from jail on the ground that a retrial would be a second jeopardy.

The requirement that the Supreme Court pass upon a case in which capital punishment has been imposed by the sentence  of the trial court  is. one having for its  object simply and solely  the  protection of  the accused.  Having received the highest penalty  which the law imposes, he  is entitled under that law to have  the  sentence  and all the facts and circumstances upon which it is founded placed before the highest tribunal of the land to the end that its justice and legality may be clearly and conclusively determined.  Such  procedure  is merciful.  It gives  a second chance for life.   Neither  the courts  nor  the accused can waive it.  It is a positive  provision of the law that brooks no interference and tolerates no evasions.  Unforeseen and fortuitous events interrupt it only for the moment.   When they are spent, the measured power of the law resumes its way and its unfulfilled provisions proceed to enforcement.

So when  the proceedings which constituted the trial of the accused in this case under the system of procedure in force here were interrupted and stayed  by the destruction of the most important element in the record of  the  cause, that portion of the proceeding's which, perhaps,  most perfectly assures the protection  of his rights had not yet been  fulfilled.  In other words,  when the accident to the record occurred, the accused had not yet been fully  tried; the cause, on the part of the prosecution as well  as the accused, had  not  been terminated.   It  was still in  progress.   It was not  then known, in reality,  whether he was convicted or acquitted.  Certain recommendations had been made by the Court of First Instance,  but they had not been passed  upon or even  considered.  To sustain the plea of former jeopardy,  it is necessary not only  that jeopardy shall  have attached but that  it  shall be terminated; that is, that the proceeding on account of which the jeopardy exists shall  have ended.   To terminate jeopardy, it  is not necessary that there be a formal final  judgment of conviction or acquittal.  Any act of the  court terminating the proceeding without the consent of the accused, not founded upon some  constraining necessity  arising  from circumstances over which  the court has no control, terminates the jeopardy, and a retrial violates the constitutional rights of the accused.  Such an  act is,  by operation of law, an acquittal of the accused.

Jeopardy can not be  terminated by an accident.   Such an event merely interrupts or suspends it. Generally speaking, the law does not operate upon pure accidents or  lend legal force or significance to them as  such.  This is  especially so in  matters of procedure.

It is possible that a different question would have been presented if the  loss  of the record  had been due to  the negligence of  the officer of the law  who had it in charge. We would then have had before us the question of how far an accused person may be made to suffer for the negligence or blunders of  those officers of the  law who have to do with  his trial or with the records relating to it.  In the case actually before us there is evidence only of the loss of the record by accident, pure and  simple, without negligence on the part of any person charged with a duty.

Under the Spanish system a person was not in jeopardy in the legal sense until there had been a final judgment in the court of last resort.  That this was the case may be seen from reading the Spanish authorities:

"After a man, accused of any crime, has been acquitted by the court, no one can afterwards accuse him of the same offense  *   *  *."   (Puero Real,  law 18, title 20, book 4.)

"It is another of the  general exceptions that a person can not be accused who has formerly been accused and adjudged of the same crime, since the most essential of all judicial decisions upon which  execution  can issue  is to constitute unalterable law."  (Ency. of Law, Lorenzo Arrazola, vol. 1, p. 511.)

"If a man is acquitted by a valid judgment of any offense of which he  has been  accused, no person  can afterwards accuse him of the offense  *  *  *."  (Seven Partidas, law 12, title 1, partida 7.)

Under that system  the lower courts were  regarded as examining courts, having preliminary jurisdiction, and the accused was not fully convicted or acquitted until the case had been passed upon by the Audiencia, or supreme court, whose judgment was subject to review in the supreme court at Madrid for errors of law, with power to order a new trial.   The trial was regarded as  one continuous proceeding, and the protection given was against a second conviction after this final trial had been concluded in due form of law. The  change made by  the introduction of American  law affected only those cases where the capital penalty is not imposed.  As to those cases, the Spanish system remains in force by virtue of the provisions of the Code of Criminal Procedure above quoted.  (Kepner vs. United  States, 195 U. S., 100.)

It necessarily  follows, then, that the former jeopardy which the accused pleads as a defense was not terminated and the retaking of  the evidence before Judge Ross was not a second jeopardy.

For these reasons  the judgment of  conviction  and the sentence imposed thereunder are hereby affirmed, and the judgment  and sentence of the court below are made the judgment and sentence of this court.  So ordered.

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