THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FELIPE AGASANG ET AL., DEFENDANTS AND APPELLANTS.

BUTTE, J.:

This is an appeal from a judgment of the Court of
First Instance of Samar convicting the defendants-appellants of the
crime of homicide upon the following information:

Included in the information as defendants were Felipe Agasang and
Pedro Aganan. On September 5, 1933, the fiscal filed a motion for
dismissal of the information against Felipe Agasang on the ground that
the evidence in the hands of the Government showed that this accused
had no part in the crime. The defendant Pedro Aganan was acquitted by
the trial court.

On this appeal the appellants assign the following errors:

“1. The lower court erred in giving
greater weight to the testimonies of the witnesses of the prosecution
than those of the defense, the former being biased, incredible, and can
not be the basis of conviction.

“2. The
lower court erred in not believing the testimonies of the witnesses of
the defense and in not declaring that in the light of the attending
circumstance, the crime charged by the prosecution is incredible and
contrary to the ordinary course of human nature.

“3. The lower court erred in dismissing the case against Felipe Agasang
and used him as a state witness when the attending circumstance does
not warrant his dismissal.”

In support of his third assignment of error, the appellant cites the case of United States vs.
Enriquez (40 Phil., 603). In that case the information was filed
against Rosauro Enriquez alone. Two of the witnesses for the
prosecution, Quirino Reyes and Marcelo Santiago, testified that they
assisted Rosauro Enriquez in the betting which was done in the game of jueteng
for which the defendant was being prosecuted. Although no information
was filed against them and it appeared that they were accomplices, they
were permitted to testify over the objection of the defendant and this
court sustained the judgment of conviction.

There is a marked distinction between that case and
the case before us. The defendants-appellants, after pleading not
guilty, stated in their exception to the admission of the testimony of
Felipe Agasang (t. s. n., page 2) “que contamos con pruebas suficientes
en contra de el (Felipe Agasang) por la muerte del occiso Dionisio
Empleo.” The testimony of both Ambrosio Valenzuela and Adriano F. Besa,
the appellants, directly charge Felipe Agasang with having inflicted
the wounds which resulted in the death of Dionisio Empleo while they,
the appellants, without any confabulation with Felipe Agasang, were
holding Dionisio Empleo to prevent the latter doing violence to
anybody. In other words, the theory of the defense is not that Felipe
Agasang was an accomplice with his codefendants but that Felipe Agasang
was exclusively responsible for the crime. In the case of United States
vs. Enriquez, the fiscal used admitted accomplices as
witnesses and we sustained the court in admitting that testimony. In
the present case the fiscal used the testimony of a witness against
whom he stated the Government had no evidence of guilt. Act No. 2709,
section 2, is applicable when two or more persons are charged with the
commission of a crime and the information is dismissed against one of
them “that he may be a witness for the Government” and if it appears
“that said accused does not appear to be the most guilty.” In the
present instance the fiscal was convinced that he had no evidence
against Felipe Agasang. He moved for the dismissal on that ground and
not on the ground that he may be a witness for the Government there
being some evidence of his guilt. Section 2 of Act No. 2709 is,
therefore, inapplicable and the third assignment of error is not well
founded. The fiscal acts within his legal authority in dismissing an
information against a person when the proofs in his hand convince him
that the information is erroneous and cannot be sustained.

The evidence of the defendants to the effect that
it was Felipe Agasang who administered the fatal injuries which caused
the death of Dionisio Empleo consists of the testimony of the
appellants. A circumstance which lends support to their testimony is
the fact that Dionisio Empleo had slightly ‘wounded Felipe Agasang
shortly before he himself was wounded. Agasang was in the same room at
the time and the appellants urge upon us the view that it is a fair
inference from the circumstances and the relationship of the parties
that it was Agasang and not the appellants who assaulted Dionisio
Empleo. However, as against this inference and the testimony of the
defendants-appellants, we have the testimony of eyewitnesses which
cannot be explained away on the theory that they were mistaken or
perjured.

Giving to the findings of fact of the trial court
the weight which, under familiar rules, they must receive in this
court, we have come to the conclusion that the judgment must be
affirmed with the following modifications: In view of the aggravating
circumstance of treachery, the maximum imprisonment period to be
imposed upon the appellants is hereby fixed at seventeen years, four
months and one day of reclusion temporal and the minimum imprisonment period under the Indeterminate Sentence Law (Act No. 4103) is hereby fixed at ten years of prision mayor. As thus modified, the judgment is affirmed with costs de oficio.

Abad Santos, Imperial, Goddard, and Diaz, JJ., concur.