The appellant was prosecuted in the Court of First Instance of Cebu for the crime of homicide on the following complaint:

"The undersigned accuses  Severo Baterna of the crime of homicide inasmuch as on or about May 18,  1925, in  the municipality of  Tuburan, Province of  Cebu, the  above- mentioned  accused  voluntarily, illegally,  and  criminally, without justification, did attack Eugenio Desapulo  with  a penknife  which  he  carried, inflicting wounds  upon  his body which  caused  the  instant death of the said Eugenio Desapulo.  Contrary to  law."

After proper hearing  the  lower court found the accused guilty of the crime charged and taking into consideration the mitigating circumstances of non-habitual drunkenness, his lack of instruction provided for in article 11 of the Penal Code,  and passion  and obfuscation, imposed  the penalty next lower in degree to that prescribed by law in accordance with article 81, paragraph 5, of the Penal Code, as amended by Act No. 2298, or ten years and one day prision  mayor, to pay the heirs of the deceased the sum of p1,000 by way of indemnity, and the costs.  From this judgment  the accused appealed and his  counsel alleges that the trial court erred: (a) In considering the theory of the prosecution in regard to the facts more probable; (b) in finding  the accused guilty of the crime of homicide; and (c) in not taking into consideration the exempting circumstance of self-defense in favor of the accused.

After a careful study of the evidence presented in the record,  we are of the opinion that the assignments of error made by the appellant are groundless.

The Attorney-General recommends the  modification of the judgment appealed from to the effect that the penalty provided for in article 404 of the Penal Code be imposed upon the accused in its minimum degree for the reason that the  circumstance of  non-habitual intoxication which attended the commission of the crime implies a disturbance of  the  accused's  reasoning powers,  and his lack of instruction cannot have any influence over him, nor can it be considered that  he acted under the impulse of passion and obfuscation.  Lack of instruction, and  passion and obfuscation, as mitigating circumstances, cannot be considered independently of that of non-habitual intoxication; wherefore the judgment  must  be  modified, imposing  upon the accused the penalty in its minimum degree,  or twelve years and one day reclusion temporal, with the accessories of the law.  And  with this  modification, the judgment appealed from must be, as it is hereby, affirmed with the costs against the appellant.  So ordered.

Avanceña, C. J., Johnson,  Street, Malcolm,  Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.