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 parricide. He
admits having killed his wife, but claims that he surprised her in the
act of committing adultery. The lower court found him guilty of the
crime of parricide as defined and penalized by article 246 of the
Revised Penal Code, and sentenced him to suffer cadena perpetua, with the accessory penalties provided by law, and to pay the costs.

On this appeal, he 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.”

In cases of parricide, the prosecution is required to prove three
facts, namely: (1) That death of the deceased: (2) that he or she was
killed by the accused; and (3) that the deceased was a legitimate
ascendant or descendant, or the legitimate spouse of the accused. If
the deceased is either the father, mother, or the child of the accused,
proof of legitimacy is not required. 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.

We have carefully considered the evidence
presented in this case and we find no sufficient ground to hold that
the appellant surprised his wife in the act of committing adultery. The
case, therefore, does not come within the purview of article 247 of the
Revised Penal Code. It follows that the lower court committed no error
in finding the appellant guilty of parricide as defined and penalized
by article 246 of said Code. Appreciating, however, in his favor the
mitigating circumstances of illiteracy and of voluntary surrender to
the authorities, we sentence the appellant to suffer the penalty of
twelve years and one day of reclusion temporal (Rule 5, article 64 in connection with rule 2, article 61, Revised Penal Code).

Modified as above indicated, the judgment appealed from is affirmed, with costs against the appellant. So ordered.

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