This is an appeal from a judgment of the Court of First Instance  of Sorsogon,  declaring the  defendant-appellant Simeon Solanga guilty of the crime of homicide and imposing upon him  a penalty of fourteen years, eight months and one day of reclusion temporal, with the accessory penalties provided for by law, and ordering him to indemnify the heirs of  the deceased David Gupalao  in  the sum of P1,000, and to  pay the  costs.

The principal evidence against the defendant is his own confession made before the justice of the peace of Irosin, Sorsogon, on the day following the commission of the crime, and in which he made the following statement: "Yesterday morning after I had taken my breakfast with my mistress Catalina,  I was going to the place  where I was  working, and while on my  way  there I found that I had left  my cigarettes in the house.   On my return to the house to get the cigarettes I found  to  my  surprise that my mistress Catalina  was  having intercourse  with David  Gupalao. David struck me with his fist  and tried to take my bolo away  from me,  and being  excited and blind with rage in seeing the situation,  and being thus attacked by  David, I made use of my bolo and cut him in the arm.   Seeing us fighting, my mistress Catalina jumped out of the window and I continued giving the man bolo cuts in various parts of his body and finally left the house in search of  Catalina. The man  David also left and went out in  the abaca field where he  died"

At  the  trial  of  the case the defendant told a  different story  and tried to make it appear that the deceased  died accidentally or  through his own fault.  He stated  on  the witness stand that Catalina Habitan was his lawful wife; that he found the deceased in the act of violating Catalina, and that she  was screaming and crying for help; that he asked the deceased for  an  explanation, but  was answered with a threat and advised not to enter the house; that  the deceased thereupon assaulted him and struck him with a piece of wood; that he,  the  defendant, picked up a stick with which  he endeavored to defend himself, but that  he lost the stick and was forced to use his bolo; that he tried to retreat and in doing so backed up against a coconut palm; that at that precise moment the deceased in trying to give him  a decisive thrust with a pocket knife ran up against the blade of the defendant's bolo thus wounding himself.

The defendant's testimony was  corroborated by that of Catalina Habitan,  but  her testimony  is  completely discredited by a  sworn statement made  by  her before  the justice of the peace immediately after  the commission  of the crime and introduced as  evidence  in  rebuttal by  the prosecution.  The statement  reads  as follows, in  translation :

"I, Catalina Habitan, single, 25 years of  age, resident of the barrio of Casini, municipality of Irosin, Province of Sorsogon, P. I., after being sworn depose as follows:

"On the morning of Monday, August 24, 1925,  my paramour Simeon Solanga  asked me for permission  to  go to the barrio of Batang, municipality of Irosin, for the purpose of assisting my brother  in  his work of sowing  his land, and left our house.   After a while David Gupalao came for the purpose of collecting  our debt of P4.  He had not been sitting long in our  house when Simeon Solanga, my paramour came and I saw  him seizing the  handle of his bolo, and on arriving in our house without making any question immediately  stabbed, David  Gupalao.   I  was afraid and ran to the house of the lieutenant of the barrio and I saw Simeon  Solanga pursue  David Gupalao, stabbing him in the back.  On  arriving at the house of the  lieutenant of the barrio,  I told  him  that  Simeon  had stabbed David Gupalao, and the lieutenant immediately came to our house.

"This  is all that I can declare as the real truth, and I made this declaration freely and spontaneously and without any threat by any  person in authority.

"In witness whereof I hereunto set my  hand in  Irosin, this Monday, 24th of August, 1925."

From the evidence as a whole, it seems  clear that the defendant and Catalina Habitan, while living together as husband and wife, were not legally married and that the case therefore does not fall  under the first paragraph of article 423 of the Penal Code.  The testimony to the effect that the deceased assaulted Catalina is very evidently also untrue. But there can be little doubt that on the occasion in question the defendant found Catalina and the deceased in a compromising situation, and that this in connection with the invasion of his home created "an impulse so powerful as naturally to have produced passion and obfuscation;" he is therefore entitled to the benefit of mitigating circumstance No.7 of  article 9 of the Penal Code.  The lack of instruction and education on the part of the accused should also be taken into consideration as an extenuating circumstance under article 11 of the Penal Code as amended.  The appreciation of this circumstance  is the more appropriate in this case for the reason that in some of the more backward communities a loose relation between man and woman, such as existed between the  accused and Catalina Habitan, has somewhat the same moral sanction as the legal relation of man and wife.  If these  two had been formally united in marriage, article 423 of the Penal Code would have been applicable and the  penalty  reduced to banishment.  The state of education and instruction of the accused is therefore, directly pertinent to his legal culpability.

Two mitigating circumstances having been found to be present, and there being no aggravating  circumstances, paragraph 5 of article 81 of the Penal Code becomes applicable, with the result that the penalty must be reduced by one degree, and  the majority of the members of the court are of the opinion that the accused should be sentenced to suffer six years and one day of prision mayor.

The judgment appealed from is therefore  modified  by reducing the penalty imposed  upon  the defendant to six years and one day of prision  mayor, with the accessory penalties prescribed  by  law.  In all other  respects the judgment is affirmed with the costs  against the appellant. So ordered.

Avanceña, C. J., Street, Johns, and  Villa-Real, JJ., concur.
Romualdez, J., concurs in the result.

---

DISSENTING

VILLAMOR, J.,

In my opinion the  evidence justifies the imposition of the penalty provided in the first paragraph of  article 423 of Penal Code.