THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FELICIANO EMBALIDO, DEFENDANT AND APPELLANT.

The appellant in this case was charged with the crime of murder. He
admits having killed, Felix Cabiguin, but claims that he surprised his
wife and the deceased while they were engaged in criminal conversation.
The lower court found him guilty of the crime of murder and,
appreciating in his favor the mitigating circumstances of illiteracy
and voluntary surrender to the authorities, sentenced him to seventeen
years, four months and one day of cadena temporal, with the
accessory penalties provided by law, to indemnify the heirs of the
deceased in the sum of P500, and to pay the costs. From this judgment
the accused appealed to this court and now contends that he should have
been sentenced in accordance with article 247 of the Revised Penal
Code, which reads as follows:

“Any legally
married person who, having surprised his spouse in the act of
committing sexual intercourse with another person, shall kill any of
them or both of them in the act or immediately thereafter, or shall
inflict upon them any serious physical injury, shall suffer the penalty
of destierro.”

We have carefully
considered the evidence presented in this case, and we are of the
opinion that the lower court erred in finding the appellant guilty of
the crime of murder. The mere fact that the deceased had wounds in the
back, does not necessarily show that the appellant attacked him from
behind, giving the deceased no chance to defend himself, so as to bring
the offense within the definition of the crime of murder. The case is
one of homicide.

In cases of homicide, the prosecution is
required to prove two facts, namely: (1) That death of the deceased;
and (2) that he was killed by the accused. Once these facts are
established beyond a reasonable doubt, conviction is warranted. Matters
of defense, mitigation, excuse, or justification must appear by a
preponderance of evidence. An examination of the evidence of record
does not justify the conclusion that the appellant surprised his wife
and the deceased while they were engaged in criminal conversation. The
case, therefore, does not come within the purview of article 247 of the
Revised Penal Code.

The appellant is adjudged guilty of the
crime of homicide, and appreciating in his favor the mitigating
circumstances of illiteracy and of voluntary surrender to the
authorities, he is hereby sentenced to six years and one day of prision mayor,
with the understanding that service of this sentence shall begin after
the appellant will have served the sentence imposed upon him for the
crime of parricide in case G. R. No. 37379, People vs. Embalido.^[1] Appellant is also sentenced to indemnify the heirs of the deceased in the sum of P500, and to pay the costs.

Modified as above indicated, the judgment appealed from is affirmed. So ordered.

Avanceña, C. J., Street, Ostrand, and Butte, JJ., concur.

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^[1] See next case.