G.R. No. 1580. March 27, 1905

We think that the testimony of the witnesses for the Government is
to be believed rather than of the defendants and their witnesses, and
we hold that Francisco Calvo and his companion, Placido Echanes, being
unarmed, were upon a hunting expedition for small birds when they were
fired upon by the defendant Paulino Vallados, the result of the one
shot being the wounding of Calvo and the death of Echanes. We find that
Calvo and Echanes made no attack upon the defendants and were not
attempting to steal the palay which the defendants were guarding.

On the other hand, we believe that the defendants, who were watchmen
upon the estate of Agripino de la Rama, believed that the persons
approaching them were robbers and that Vallados fired at them with that
belief. Notwithstanding these facts, the offense committed makes the
crime of homicide with lesiones. We take into consideration
in favor of the appellant paragraph 7 of article 9 and article 11 of
the Penal Code, and applying article 81, paragraph 5, we fix the
penalty at ten years prision mayor.

The defendant Nicolas Villeta was acquitted by the court below. The
widow of Placido Echanes took part in the prosecution and appealed from
the judgment so far as it acquitted Nicolas Villeta. Under the decision
of the United States Supreme Court in the case of Kepner vs. the United
States her appeal is dismissed.

The judgment of the court below is reversed and the defendant, Paulino Vallados, is convicted of the crime of homicide with lesiones and is sentenced to ten years of prision mayor, with the costs of this instance and one-half of the costs of the court below against him.

Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ.,concur.