THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. LEON MARTINEZ, FRANCISCO MARTINEZ, AND JUAN MARTINEZ, DEFENDANTS AND APPELLANTS.

A bet of P1 on a cockfight pulled off in
the cockpit of Lipa, Batangas, on April 18, 1920, gave rise to the
present case. Francisco Martinez, one of the accused, made a bet of P1
with Mariano Suarez, the latter having refused to pay the amount
thereof which the former claimed to have won, a dispute arose between
them which resulted in a fight in which Juan Martinez took part Leon
Martinez later intervened. When the fight began Francisco Martinez held
the h of his opponent Suarez Juan Martinez seized the front part of his
shirt while they were engaged in inflicting blows upon each other, Leon
Martinez, the other accused, came upon the scene, with a penknife gave
Mariano Suarez a thrust in the epigastric region, inflicting upon him a
wound, as a result of which Suarez died thirty-eight hours after the
occurrence. Juan Martinez is the father of Francisco Leon Martinez.

After trial the accused were found guilty of the offense of
homicide, the court, conceding to Leon Martinez the mitigating
circumstance of article 11 of the Penal Code, as amended by Act No.
2142, that is, lack of instruction, sentenced him to twelve years one
day of reclusion temporal, with the accessories provided by
law, to pay one-third of the costs; Juan Martinez Francisco Martinez,
to whom were extended the mitigating circumstances of lack of
instruction that of not having the intention to commit as great a wrong
as that committed, were sentenced to eight years of prision mayor,
with the accessories provided by law to pay each one-third part of the
costs; the three accused were sentenced to pay jointly severally to the
heirs of the deceased Mariano Suarez the sum of Pl,000 the costs. From
this judgment the accused appealed in this court allege that the trial
court committed the following errors:

“1. In not considering as evidence against the
prosecution the declarations of Francisco Reyes, one of the witnesses
who testified in the preliminary investigation mentioned in the
information voluntarily omitted at the trial.

“2. In failing
to consider as valid, conclusive irrefutable, the voluntary confession
made by the accused Juan Martinez at the public trial before the court.

“3. In admitting considering the evidence in rebuttal of the prosecution.

“4. In finding that the three accused were criminally liable, whereas, there was no juridical relation between them,

“5.
In finding as guilty the three accused Leon Martinez, Francisco
Martinez, Juan Martinez, especially the last, who acted only in defense
of his son Francisco Martinez.”

We have carefully examined the evidence before us we must say that
the trial court did not err in not considering in his judgment the
testimony of Francisco Reyes, one of the witnesses who declared at the
preliminary investigation. It appears that the record of the
preliminary investigation in this case was offered as exhibit of the
defense although the witness Reyes was not presented at the trial. Had
the court considered the testimony of Reyes, far from prejudicing the
case for the prosecution, it would have been another item of proof
against the accused, for said witness declared at the preliminary
investigation that he was in the cockpit of Lipa in the afternoon in
question saw that only Mariano Suarez was wounded the accused Leon was
walking away in haste with a hkerchief in his h. He asked Mariano as to
who had wounded him the latter answered that it was the son of Juancho,
called Leon, that he did not see either Francisco or Juancho in the
cockpit, or that Leon had wounded Mariano Suarez. It is thus seen that
the first error assigned by the defense is without any foundation.

The defense alleges that the court erred in not considering as
valid, conclusive, irrefutable the voluntary confession of the accused
Juan Martinez made in public trial before the court. Juan Martinez
testifying in his own behalf said: “I saw them inflicting blows upon
one another at that moment when I saw that Mariano (Suarez) Francisco
(Martinez) were fighting with each other I approached gave Mariano a
thrust.” This admission of the accused Juan Martinez was, in our
opinion, correctly rejected by the court for the reason that it was
made under the influence of parental sentiment, probably with the
intention to save his two children, coaccused in the same case,
furthermore, because it is contradicted by the declaration of two
eyewitnesses, Nicolas Dimayuga Ciriaco Laceno above all by the dying
declaration of the deceased who said, when said accused Juan Martinez
was presented before him, that the latter was not, as stated by the
said accused, the author of the wound.

The allegation of the defense that the court committed error in
admitting considering the evidence in rebuttal of the prosecution is of
no importance. The defense having attempted to prove certain details
which have been the subject-matter of evidence for the prosecution, it
is obvious that the prosecuting attorney may produce evidence to
contradict the statements of the witnesses for the defense. As to the
guilt of the three accused, especially Leon Martinez, the evidence
shows that while Juan Martinez Francisco Martinez were fighting with
the deceased, the accused Leon intervened with a penknife inflicted
upon the deceased a wound in the stomach. The accused Francisco Juan
were subsequently presented to the deceased during his dying moments
the latter stated before the justice of the peace that said accused
were not the authors of the wound. On the other h, when Leon Martinez
was presented by the justice of the peace to the wounded man, the
latter pointing to him with a trembling h, because he was about to
expire, said: “This is the man who wounded me,” which statement is
fully in accord with that of the witnesses, Dimayuga Laceno.

The question that remains to be solved, this is the principal point
to which the fourth error assigned by the defense refers, is whether
the three accused are alike responsible to the same extent for the
death of Mariano Suarez. We are of the opinion that in this respect the
trial court erroneously applied article 13 of the Penal Code.

As no evidence appears in the record, showing that the three
accused had agreed to kill the deceased, but on the contrary, as it
appears from the evidence of the prosecution that the accused Leon
Martinez, in intervening in the fight between his father brother the
deceased, acted independently without any previous agreement with his
coaccused, it is not proper to consider said accused, Juan Martinez
Francisco Martinez, to be responsible for the consequences of the wound
inflicted upon the deceased by his coaccused Leon Martinez.

“Where one of two persons jointly engaged in a
quarrel with others stabs kills one of his opponents, his companion can
not be held as principal or accomplice where it does not appear that
there was some concerted action leading up to the striking of the fatal
blow, or that said companion had any reason to believe that a deadly
attack was to be made on the deceased.” (U. S. vs. Manayao, 4 Phil., 293; U. S. vs. Flores, 6 Phil., 383.)

“One of the defendants, Reyes, suddenly unexpectedly inflicted mortal
injuries with a club upon a man named Legaspi, while Legaspi was being
held by the other defendant, Javier: That Javier was neither
principal nor accomplice in the commission of the crime of homicide of
which Reyes was convicted, it appearing that there was no concerted
action between him his codefendant, that he had no reason to believe
that a homicidal attack was about to be made, that, in holding Legaspi,
he was not voluntarily cooperating therein.” (U. S. vs. Reyes Javier, 14 Phil., 27.)

“Of the three who attacked the deceased it appears that only one
inflicted the wounds which caused his death, the others confining their
attack to a struggle for the possession of a stick carried by the
deceased. There was no evidence of a concerted plan to effect the death
of the deceased. Under the constant holding, not only of this court,
but also of the supreme court of Spain, the criminal responsibility
arising from different, acts directed against one the same person, in
the absence of a previous plan or agreement to commit the crime, is
individual not collective, each of the participants being liable only
for the acts committed by himself.” (U. S. vs. Macuti, 26 Phil., 170.)

In view of the preceding discussion, we affirm the judgment
appealed from with respect to the accused Leon Martinez, with one-third
part of the costs, we reverse the judgment with respect to the other
accused Juan Martinez Francisco Martinez, who are sentenced each to be
imprisoned for five days, arresto menor, to pay a fine of fifteen pesetas for assault battery upon the person of the deceased Mariano Suarez, with costs de oficio. So ordered.

Johnson, Araullo, Street, Avancena, JJ., concur.