THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. FLORENCIO TACUBANZA, DEFENDANT AND APPELLANT.

This is an appeal from a judgment of the Court of First Instance of the Province of Tarlac, convicting the appellant of the crime of attempted rape and sentencing him  to two years and five months  of prision correccional, accessories and costs.

The learned trial court found proved the following facts:

“That on  the 10th  of  January, 1909, at about 10  o’clock in the morning, the complainant, Nieves Espinosa, left her house to get some water, carefully locking the door; that on her return, accompanied by a  little boy seven  years  of age, she found the door unfastened and the accused within; that he instantly seized, embraced and kissed her, throwing her to the  floor and attempting to ravish her by  force; that he was prevented from  accomplishing his purpose by the arrival  of succor called  to the spot  by  her cries and those of the little boy; that one Sotera Baltazar who heard the cries,  hurried at once to the house and saw the accused leap from the  house by means of the batalan and run away; that the father of the complainant, Joaquin Espinosa, and oney  Ponciano  Mallari,  who  were  fishing in the  river  at the rear of  the house,  also hurried to her assistance,  attracted by the cries of the little boy; that Joaquin Espinosa saw the accused when he leaped from the house and fled; that these facts were  placed immediately before the authorities;  that there had  been no trouble or ill feeling between the parties or their families prior to the time of the assault.”

The prosecution presented, in support of its charge against the accused, the complainant and her father.  There was presented in evidence a torn camiseta, alleged to have been worn  by the complainant at the time  of the assault and to have been torn by the accused in his efforts to ravish her.

It  should  be observed  (a) that  the crime is alleged  to have been committed  on Sunday and in the middle  of the day;  (b)  that the accused is alleged  to have attempted the violation of the complainant in the presence of a little boy seven years of age; (c)  that the  house wherein the assault is alleged to have been made is situated in a locality where there were other habitations, being only about forty yards from the house of Sotera Baltazar, who, it is alleged, came instantly  at the call of the complainant;  (d)  that the father and a companion were fishing within forty yards of the  house  at the  time  and that,  it  is asserted by the prosecution, there were a  number  of other people in close proximity; that they  were attracted  by the cries of the child and not  of the complainant.

It should be  particularly noted  (e)  that although  it is alleged  that  two disinterested  witnesses,  namely, Sotera Baltazar and Ponciano Mallari, saw the accused  leap from the house  and flee, they have not been presented as witnesses for the prosecution; and that the little boy, although presented by the prosecution  as  a witness  against the accused,  was not  permitted  to  testify for the reason that, in the judgment of the court, he did not display sufficient intelligence to make him a competent  witness.

It thus appears that the only evidence against the accused is that produced by  the complainant and her father. While  evidence  of this character would  generally be sufficient, everything else being equal, nevertheless,  under the circumstances of this particular case, we do not regard the case made by it as satisfactory.   The failure of the prosecution to  present the two disinterested witnesses above- mentioned  seriously  weakens its  case  against the accused. The prosecution  asserts that it caused subpoenas to be issued for the witnesses in  question and  that  they could not be found.  There are found in the record simply two subpoenas, one directed to  Ponciano  Mallari,  dated  August 10,  1909, and  another  to  Sotera  Baltazar,  date  the  16th of  the same month and year.  The trial began on the fifth day of March preceding, at which time the prosecution  put in its proofs and closed its case without ever having  issued a subpoena for the two witnesses referred to.   Nothing more seems to have been  done with the case until the  20th of August, 1909,  when the accused began his defence.  It was just prior to this date that the two subpoenas above-mentioned were issued.  As  to these, the  record does not disclose when they were delivered to the sheriff for service or what effort, if any, he  made to find the witnesses; nor does  it appear that  other or further  effort  was  made  at any time.

We do not believe the evidence  warrants the conviction of the accused.   (U. S. vs. Obregon,  3 Phil. Rep., 320; U. S. vs. Flores, 6 Phil. Rep., 420.)

The judgment of conviction  is reversed and  the accused is ordered forthwith discharged  from custody by  virtue thereof.  Costs de oficio.

Arellano, C. J., Mapa,  Carson, and Trent, JJ., concur.