[ G.R. No. 1883. May 01, 1905 ] 4 Phil. 511
[ G.R. No. 1883. May 01, 1905 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. VICENTE PADILLA ET AL.., DEFENDANTS AND APPELLANTS. D E C I S I O N
WILLARD, J.:
The defendants were tried in the court below under a complaint for brigandage and were convicted of robbery with homicide. Padilla and Pablo Gallano were sentenced to life imprisonment (cadena perpetua), Benedicto Gallano to twelve years and one day, and Paulino Gacillos to six years ten months and one day of prision mayor.
We think that there is evidence in the case sufficient to convict the defendants of the crime of brigandage and that the conviction for robbery with homicide should be set aside. As the minimum penalty for brigandage is twenty years, the defendants Benedicto Gallano and Paulino Gacillos should have been sentenced for that period at least. A majority of the court are of the opinion that we have the power to impose that sentence now. (U.S. vs. Flemister,[1] March 18, 1905.) In this, however, the writer of this opinion does not agree. In his opinion the case of Kepner vs. United States[2] (2 Off. Gaz., 974) establishes the proposition that after a trial and judgment in the Court of First Instance, a trial here on the merits is a second trial and can not be had without the consent of the defendant. The writer thinks that his appeal gives consent only to the examination here of those errors of the court below which are prejudicial to him or at most to those errors which he specifically assigns here and as to which his assignment is sustained; that he does not by his appeal give his consent that this court may examine errors which the court below may have committed to his advantage and which the Attorney-General may here assign, and that his appeal is not a waiver of all his rights and a consent that the whole case may be retried here.
One of the defendants below was Gabino Gallano, a boy 14 years of age. The record before us does not show that any judgment either of conviction or acquittal was entered against him. Said record would, in our judgment, have justified an acquittal. When the case is returned to the court below, that court will take such action in regard to the defendant Gavino Gallano, if none has already been taken, as may be in conformity with law.
The judgment of the court below is reversed, and the defendants Vicente Padilla, Pablo Gallano, Benedicto Gallano, and Paulino Gacillos are convicted of the crime of brigandage, and are sentenced, Vicente Padilla and Pablo Gallano each to life imprisonment (prision perpetua), and Benedicto Gallano and Paulino Gacillos each to twenty years’ imprisonment, with the costs of this instance against the said four appellants.
Arellano, C. J., Torres, Mapa, and Carson, JJ., concur in the result.