Between 8 and 9 o’clock in the morning of April 28 1918, Mrs. Lewin received a call from their neighbor, Mrs. Auckback, informing her that smoke was coming from the former’s house. Mrs. Lewin ordered their servant Paulino Banal to look for the fire. He found a piece of a jute sack and a rag which were burning with kerosene oil and placed it between a post of the house and a partition of the entresol. At that moment Severino Valdes was in the entresol, engaged in his work of cleaning, while, the other defendant Hugo Labarro was cleaning the horses kept at the place.
Valdes, after his arrest, according to the statement in the police station, admitted before several policemen that it was he who had set the fire to the sack and the rag, and he also who had started the several other fires which had occurred in said house on previous days; that he had performed such acts through the inducement of Hugo Labarro, for they felt resentment against, or had trouble with, their masters, and that, as they were friends, he did under Labarro’s promise to give him a peso for each such fire that he should start.
Severino Valdes and Hugo Labarro were charged with the crime of arson.
The case with respect to Hugo Labarro was dismissed.
Valdes, on the other hand, was found guilty and sentenced to six years and one day imprisonment.
Hence, this appeal.
Whether Valdes is guilty of the crime charged.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an upright of the house and a partition of the entresol of the building, thus endangering the burning of the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when some of its inmates were inside of it.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts conceive to the burning of said house, but nevertheless., owing to causes independent of his will, the criminal act which he intended was not produced.
The offense committed cannot be classified as consummated arson by the burning of said inhabited house, for the reason that no part of the building had yet commenced to burn, although, as the piece of sack and the rag, soaked in kerosene oil, had been placed near partition of the entresol, the partition might have started to burn, had the fire not been put out on time.
There is no extenuating or aggravating circumstance to be considered in a connection with the commission of the crime, and therefore the penalty of prision mayor immediately inferior in degree to that specified in article 549 of the Penal Code, should be imposed in its medium degree.