G. R. No. 1441. December 29, 1903

The defendant,  Severa Bergantino, is  charged with the crime of homicide, committed as follows:

“On the evening of the 26th day of February last, the deceased, Eugenia Bernales, being at the house of Dolores Abelarde for  the purpose of collecting 7 reals and 8 cents, which the, latter owed to the former, the said Abelarde not having paid the same, a dispute arose, and,the said accused, Severa Bergantino, taking part in the dispute, inflicted two wounds  upon the stomach of the deceased with a knife, which caused the death ot the said Eugenia Bernales on the 28th of the said month of February.”

The defendant was found guilty in the  Court of First Instance and was  adjudged  to  imprisonment of eight years and six months of prision mayor and to pay the costs of the proceedings, with the accessories, without adjudging indemnification for the damages, there being no claim for such by the heirs or relatives of the deceased.   From the judgment the defendant appeals to this court.

The testimony in the case and on which the decision is based discloses the following facts:

In the pueblo of Asencia, in the Province of Iloilo, on the  26th day of November, 1902, the deceased, Eugenia Bernales,  went  to the house of Dolores Abelarde,  the mother of the  accused, for the purpose of collecting the sum of 7£  reals which  the deceased had won in a game on the morning of that day  from Dolores.   Dolores refused to pay the  said sum; the deceased insisted, saying that she needed  the money in order to buy supplies for the family; after some warm words had  passed between the women the deceased stated that the accused was wanting in virtue and applied other offensive epithets to her.   The accused was present, and up to this time had taken no part in the dispute between her mother and the deceased.   Eugenia left the presence of  Dolores and started  down the steps, and  when reaching the lower story, Severa having accompanied her, they came  to blows.  The accused at the time of the quarrel had a penknife  in her hand with which she inflicted mortal  wounds upon the deceased.

While there is some conflict, the  testimony is sufficient to sustain these  views,  and it is clear that the defendant is guilty of the offense of homicide.

It is  contended by the attorney for the defendant that the court failed to take into consideration all of the extenuating circumstances which existed  in the  case, and, in particular, that the penalty assessed by the court  was placed in a grade too high in view of the  testimony as to the age  of the accused.

Article 85 of the Penal Code provides that:

“Upon a person under 15 years or over 9 years of age, who is not exempt from liability by reason of the court having declared that he acted with the exercise of judgment, a discretionary  penalty  should  be imposed,  but always lower, two degrees at least, than that prescribed by law for  the crime which he committed.”

Did the evidence in the  case show that the accused was under 15  years of age?  If so,  the  penalty  should  have been two degrees, at least,  lower than that prescribed by law for the crime which was committed.

The learned judge states in his decision that the accused is a married woman, apparently about 18 or 19 years of age; that while the proof  presented on the part of the defendant tended to show that she was less than 15 years old at the time of the occurrence; that these declarations of the witnesses were all hearsay, as neither the accused nor her mother, who testified  as to her age,  knew her present age; that there was not presented during the trial the baptismal  certificate nor any other document showing the date of the birth of the accused; that  to judge by the appearance of the accused she had passed the age of 15 years; that it was impossible to determine with certainty this point; and the  court reached the conclusion that the accused was more than 15 years of age.

The testimony of the defendant, her mother, and her husband was to the effect that the accused had not reached the age of 15 at the time of the commission of the offense.

The mother of the accused testified that her daughter was 14 years and 4  months old and states that the reason she knew her age was because  the  defendant  was  born about the time of the cholera epidemic of 1889,

The accused testified that she was 14 years old when she was married, three months before the trial.

The husband of the accused testified that she was 14 years old and that he knew this because when he was married they told him that the accused was only 14 years of age.

The testimony of  the mother was not hearsay, but was by one who had direct knowledge of the age of the accused.

The testimony of  the husband, though hearsay, is  such evidence as is  commonly  received by the courts upon the subject of pedigree, which  furnishes an exception to the rule  with reference to the admissibility of hearsay  evidence.   (1 Greenl.,  sec. 114 C.)

While the,evidence upon this point is not entirely satisfactory, yet it is sufficient to raise a reasonable doubt upon this material question in the case, to the benefit of which the defendant  is  entitled.  The baptismal  certificate or other  evidence of this character  would  have been much more satisfactory to the court,and, if obtainable, should have been  introduced.   Neither  the  prosecution  nor the defendant saw  fit  to introduce  such evidence.

This finding of the court as to the age, not being supported by evidence sufficient to satisfy this court  beyond a reasonable doubt, will require a reversal of the judgment and a  modification of the sentence by reducing the penalty in  accordance with  the  requirements of article 85 of the Penal  Code at  least two degrees below that  prescribed by law for the crime  which was committed by the defendant, and the imposition  of a discretionary  penalty,  which, in view of the extenuating circumstances we find as existing in the case, we  now reverse the judgment  and sentence the defendant  to the  penalty  of six  months imprisonment, arresto mayor  in  its maximum degree, with costs of the proceedings adjudged against the defendant.   So ordered.

Arellano, C. J., Torres, Willard, Mapa, McDonough, and Johnson, JJ., concur.