THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. JUAN DINOLA, DEFENDANT AND APPELLANT.

From the admission and testimony of the defendant, Juan Dinola, it appears
that on January 31, 1917, in the municipality of Alangalang, Province of Leyte,
he had been distilling tuba, was carrying P5, and, on passing in front of a
house where a festival was being held, saw on the stairs his cousin Guillermo
Dinola, the deceased, to whose inquiry as to whether he had any money by him,
the defendant replied that he had, for the purpose of paying some laborers. The
deceased asked him for that sum, giving as a reason for his request, that he,
Guillermo, had lost in gambling and had to pay a person from whom he had
borrowed money. The deceased excused himself for making the request, by saying
that he was afraid that his wife would scold him because of that loss. Guillermo
inquired for how many laborers the money was that the defendant was carrying,
and when the defendant drew forth the money to show it to Guillermo, the latter
tried to seized it from him, but the defendant, understanding the evil intention
of the deceased, would not let go of the money. Then the deceased, with his left
hand, caught hold of the defendant’s thumb and. with his right hand drew from
his own pocket a penknife, with which he assaulted the defendant, wounding him
with it, first in the shoulder, then in the belly. The defendant had been
receding until he reached a partition-wall, and thereupon the deceased, seeing
that the defendant was wounded, let go of the money and caught him by the
throat, to strangle him. Thereupon, the defendant, believing that the deceased
intended to kill him, made use of the knife that he was carrying and had been
employing in connection with the distillation of tuba, and with it
wounded the deceased in the stomach, on which account the deceased let go of the
defendant, but again assaulted him. The defendant went on warding off his
assailant’s blows and, on the occasion of this defense, inflicted upon him other
wounds. When the deceased gave cries for help, calling his brother, the
defendant asked the deceased to pardon him, left the place and forthwith
surrendered himself to the chief of police.

This admission and testimony of the defendant is the only corroborative
evidence there is in this cause, bearing on the commission and details of the
alleged crime. One Isidoro Tañada was present when the occurrence took place,
but was not presented as a witness. No evidence whatever was introduced to rebut
the testimony given by the defendant.

When the evidence in a cause for homicide is the uncontradicted testimony of
the defendant, and the facts declared by him are likely, they should be
accepted; and when they involve exculpatory circumstances that show that the
defendant acted in self-defense, he should be held to be exempt from criminal
liability.

We find nothing unlikely in the facts testified to by the defendant. The
Attorney-General, in his brief, has called our attention to the very
unlikelihood of the deceased having been able to open his pocketknife while he
was holding the defendant with his left hand. Whether or not he could have done
so, depends on the conditions of that weapon: they might have been such that it
could have been opened with only one hand. The pocketknife was not presented in
evidence. In order to show its conditions, reference was made to another
pocketknife which, as the defendant testified. was similar to the one used by
the deceased; but neither was this other pocketknife introduced in evidence. We
have nothing in sight that might guide us in establishing any positive
conclusion that the pocketknife used by the deceased was of such conditions that
it is unlikely that he could have opened the blade only with his right hand. For
want of such data, we should not accept a conclusion adverse to the defendant.
But even supposing that that knife could not have been opened with only one
hand, the conclusion does not necessarily follow that the deceased could not
have opened it. By a sight movement he might have joined both hands for the
purpose of opening it, as with his left hand he was holding the defendant only
by the thumb, and, to a certain extent, had the fingers of this hand free to
open the blade; and, as all this required but a simple manipulation, performable
in a very brief space of time, it is not unlikely that the deceased may have
been able to open the knife under these circumstances.

The trial court rejected the defendant’s testimony in the part thereof
disculpatory to him, found him guilty of the crime of homicide, and sentenced
him to 14 years, S months, and one day of reclusion temporal, with the
corresponding accessory penalties, and to pay an indemnity of P1,000 to the
family of the deceased.

In rejecting the defendant’s testimony in the part thereof favorable to him,
the court founded the rejection on two considerations:

One was his finding the defendant’s testimony contradictory. The defendant,
answering repeated and insistent crossquestions, stated that the deceased with
his left hand was holding the defendant by the thumb, and with his
right hand assaulted him with the pocketknife. In order to show that
the defendant contradicted himself in respect to this detail, the court
reproduced the following part of the interrogatory: “Q. But how could, he
wound you, if he did not let go of you?—A. With his right hand he
caught me by the thumb.” This quotation appears in the record as follows:
“Q. But, then, how could he wound you, if he did not let go of you?—A.
With his right hand he caught me by the thumb, and wounded me with his right
hand.” Note that the last words of the answer were omitted by the court.
After the defendant had repeatedly and uniformly answered that the deceased with
his left hand caught him by the thumb, his last answer, that he did so
with his right hand, might have been only a slip of the tongue, made
after wearisome cross- questions on this same detail. It is strange that he
should have given this answer which is so at variance with what ha had most
satisfactorily explained in his previous answers. At all events, there appears
to be no just reason why the defendant’s liability should be made to depend on
so trivial a detail.

The other consideration which the court took into account in convicting the
defendant is, as stated in the judgment, that the eyewitness Isidoro Tañada
was biased in favor of the prosecution. The court arrived at this
conclusion from the attitude of the defense as manifested by the statement it
made before the court and which is as follows: “The defense closes its
evidence. I call attention to the fact that Isidoro Tañada, places himself at
the disposal of the prosecuting attorney. It is to save time.” The court
appears to maintain the opinion that if this witness had been presented he would
have testified against the defense. We do not deem this deduction good. The
testimony of this witness would have been merely corroborative evidence for the
defense. The presumption that the evidence omitted by a party would, if
presented, be adverse to him, is not applicable to merely corroborative
evidence. But such omission is rebutting evidence for the prosecution, and to
this latter that presumption is more properly applicable. Be this as it may,
such presumption is not applicable when the evidence is at the disposal of both
parties, because, in such a case, it has the same weight against the one as
against the other party.

Accepting the theory of the defendant, it follows that he was unlawfully
assaulted by the deceased, without having provoked the assault, and, in view of
the kind of weapon that the deceased used in this assault and his resolute
intention to assault the defendant, the latter, in repelling the assault with
another weapon of similar conditions, thereby causing his assailant’s death,
acted in self-defense.

For the foregoing reasons, the judgment appealed from is reversed and the
defendant is relieved from all criminal liability, with the costs de
officio; and it is ordered that he be immediately released from
custody.

Arellano, C. J., Torres, Johnson, Carson, Araullo, Street, Malcolm,
and Fisher, JJ., concur.