Mariano Natividad, Uy San  (alias Uy Chu  King),  and Marcos Enage,  having been charged  with  and convicted of the crime of murder, the former two were sentenced by the Court of First Instance of Davao to reclusion perpetua, the latter, as accessory after the fact, to an indeterminate penalty of from six years of prision correctional to ten years of prision mayor, and the three of them to indemnify the heirs  of  the deceased Jesus Montojo  in  the sum of P1,000, with costs.   They appealed  from the sentence imposing said penalties upon  them,  attributing to the lower court the seven alleged errors  assigned in their brief, which may be summarized as follows:  (1) Declaring that the appellants had motive to commit the crime,  not having  had any;  (2)  not holding that the testimony of the principal witness for the prosecution, Hilario Capitan, is false; (3)  giving credit  to the other witnesses for  the prosecution although they do not so deserve it;  (4) unduly attributing the cause of Jesus Montojo's death to acts of violence  of the appellants;  (5)  not  giving credit  to  the witnesses for the defense nor giving consideration  to  the testimony thereof;  (6)  denying their motion  for a new trial based upon newly discovered evidence,  as  the retraction  of  the principal witness for the prosecution, Hilario Capitan, merely because they had made an oral statement of their intention to appeal  from the  sentence" before filing said  motion; and  (7)  finding them  guilty instead  of  acquitting them of the crime with which they were charged.

The evidence shows that at about 8 o'clock in the morning of April 22, 1934, there  appeared  floating on the water near the Davao pier the body of a  child nine years and several  months of  age,  which  turned out to be that  of Jesus Montojo, son of Valentin Montojo, a Chinese resident of said  locality.  It appeared that  the  body bore  the following marks of violence: an internal hemorrhage in  the right eye and a contusion two and a half inches in diameter  in the left cheekbone.   His clothes were those worn by him  the  afternoon  before: short Khaki pants  and a colored shirt.   During the autopsy made by  the provincial health officer, no other marks of violence were  noted than those already stated, but it was observed that the lungs as well as the stomach  contained no water, from which fact it is inferred, according to the health officer who made the autopsy, that Jesus Montojo did not die of drowning. He failed to  state, however, and he was not even asked, what might have been the cause of the said child's death.

After  the lapse of nearly one year,  that  is, on March 15, 1935, Hilario Capitan,  the principal witness for the prosecution, revealed for the first time what he claims to have seen at dawn of April  22, 1934, to Sergeant Gonzalez of the Constabulary who had  gone to Capitan's house to ask that he be  shown the  best road to the place where hantac and clandestine cockfight were then  being played. Capitan claimed to have told said sergeant, and  he repeated it at the trial, that after  he had disembarked  from his boat on said occasion, he went to the house of one Juan Laurel who  lived a meter and a half from the house  of the appellant Mariano Natividad,  to  take shelter from the cold; that upon arriving in front of Natividad's house he heard a child's  groans coming therefrom and, goaded by curiosity to know  what was going on inside, he mounted the stairs nearest the.beach; that through a hole two inches in diameter  in the wall, he saw Mariano Natividad holding the child  Jesus Montojo by the neck with his right hand  and carrying a stick  in his  left, there being present, looking on, the appellant  Uy Chu  King (alias Vy San), and another individual of whom he could see nothing but the feet, due to the size of the hole through  which he was peeping; that he was horrified by said scene and he immediately  left for "his boat to return  home, as the wind had already subsided ; that upon arriving at the base of the stairs of Natividad's, house, he no longer heard groans from the child; that he  saw  nothing  more  that dawn; that  at about  8 o'clock in the morning of said day, he  witnessed the removal of the body  of a child, which turned out to be that of Jesus Montojo whom he had seen maltreated by said appellant Mariano  Natividad a few hours before; that he said nothing of this incident even to his  own wife until after he accidentally met said Sergeant Gonzalez.    During the cross-examination he was to admit  that he  appeared before the clerk of the Court of First Instance of Davao in March, 1935, to sign an affidavit,  Exhibit 3 being a copy, containing the following statement:

"I afterwards returned to my banca where I sat quietly. A moment later Mariano Natividad opened the kitchen door and a small Chinaman left the house.  The small Chinaman again returned and a few moments later Mariano Natividad and the small Chinaman in question came down carrying a heavy bundle wrapped in a piece of cloth.  When they were already a short distance from me,  heading for the pier, I likewise left in my banca."  (T. s. n., page 89.)

Asked  whether he Had really made such statement, he dared not deny it.  He  merely gave an  evasive answer saying:

"I have stated to the  clerk of court that I returned home after having been in the house of Mariano Natividad." (T. s. n., page  89.)

It should  be noted that  Hilario Capitan  did  not sign the statement in question before the clerk of court of Davao in March, but on April 12th of said year, as shown by  Exhibit 3.

Juan Aranjes, Maria Kiamko and Remigio Ugbinar  tes- tified corroborating Hilario Capitan.   Aranjes stated that he  was a watchman of "Columbia  Rope" and of "Hansen &  Orth" of Davao; that, as  such, he was charged with the vigilance of the warehouse of "Columbia Rope"  and the offices of "Hansen  & Orth" which  faced each other about 520 meters from the light post beside which he  had gone to rest for a moment that dawn; that said light post was located in the environs  of and very near the pier; that the  warehouse and offices the  vigilance of which was entrusted to him were  not visible from said place; that every half-hour he was obliged to wind the watchman's clock situated in the warehouse of the "Columbia Rope", an  operation  requiring five or  six  minutes because  he had to use six keys placed in various corners of said warehouse; that he  was absent  from his post for about  27 minutes, having gone near the pier for  the above-sighted purpose; that while he was standing beside the light post at about  3.15 at  dawn, he  saw the  appellants Mariano Natividad and Marcos Enage pass  by,  scarcely three  or four meters from  him, the  former preceding the latter, carrying a tied bundle one  meter long and  two feet  in diameter on their shoulders, the appellant Uy  Chu King (alias  Uy San), trailing them very near behind; that the three were headed with their burden  for the pier all the lights of which  were lighted at that time, and that when they returned therefrom shortly afterwards, they no Jonger carried any burden.

Maria Kiamko,  who was one time a tenant of the appellant Mariano Natividad, according to her own admission, stated, in turn, that at 3 o'clock in the afternoon of April 21, 1934,  she saw the child Jesus Montojo in the vicinity of Mariano Natividad's house, being led by the hand without the least opposition on his part by the other, appellant Uy Chu King (alias Uy San) ; that Uy Chu  King was looking at the upper story of said house, and that  she saw all of this because she had gone to  buy thread  at the store of one Lim Sui, situated near the house in question.  During the cross-examination, she could not explain  why, having paid attention to Jesus Montojo and Uy Chu King to  the extent of giving a very  detailed description of their  respective clothing, notwithstanding  the fact that there was nothing in their attitude capable of attracting  attention,  she failed to pay attention to the other persons known to  her whom she had met on that occasion.

Remigio Ugbinar, who claimed to be  a fisherman, testified that in the afternoon of the  day in question, April 21, 1934,  he saw the child Jesus Montojo accompanied  by Uy Chu King on the stairs of Mariano Natividad's house, while Mariano Natividad, from above, signalled them  to come up.  Asked why he happened to pay attention to this insignificant detail, he answered as Maria Kiamko, that it was because he likewise went to buy thread at Lim  Sui's store.  He failed to explain why, there being other stores where thread was also sold near his house, it was necessary for him to go  to Lim Sui's about 500 brazas away.

To prove that the appellants had motives to commit the crime in  question,  the  prosecution presented the witness Valentin Montojo, father  of Jesus Montojo, and the documents Exhibits C, D, E, G-1 to  G-15, consisting in letters addressed to  Lee Leong  Cho, president  of  the National Chinese Saving Association of Davao, to the Chinese Com- munity of said province, and to the Constabulary thereof, and in the indorsements and letters sent by the Constabulary to the persons concerned in the matter referred to therein, all of which bear dates covering the period between August 18, 1933, and February 12, 1934.   Said evidence shows that Uy Chu King several times claimed from Valentin Montojo the payment of a certain prize of P1,000 which the Chinese Community of Davao, of which Valentin Montojo was then the president, had  offered to the person denouncing the Chinese who, by their bad conduct, deserved to be deported from Davao.   Valentin Montojo informed Uy Chu King, when the latter once appeared before him to claim the prize personally, that it would not be paid him until the Chinese Community had passed  upon the claim, after presentation by Uy Chu King of satisfactory evidence that he had really denounced a Chinese who, by  his bad behaviour, deserved to be deported.   The Chinese Community held a meeting to that effect  and notwithstanding the absence therefrom of its president Valentin Montojo who, according to Uy Chu King's statement,  was the only one opposed to his claim, Uy Chu King failed to realize his  purpose  because the prize  was  denied him.  After this incident, there ap- peared on the  scene the appellant Marcos Enage, who was then the president  of the  Davao Chinese Chapter of the Filipino Federation of Labor,  to claim the promised prize in the name of Uy Chu King.   His efforts  did not meet with any better luck and thereafter the differences existing between the  Chinese  residents  of Davao became more marked, those belonging to the group of the Chinese Community of Davao having arrived at the extreme of sending letters to the provincial commander of  the  Constabulary asking him for protection for their persons and properties. Among the complaints filed with said provincial commander there were several against Mariano Natividad and against his alleged followers including Uy Chu King, charging them with  threats and attempt to  molest the members of the Chinese Community of Davao.  Such  was  the state of affairs when the honorary consul  of Nueva  Ecija, Cabo Chan, visited Davao and,  wishing to end the differences existing between his countrymen, he proposed to them the collection of a contribution from everybody, with him in the lead, in order to procure funds to pay Uy Chu King.  They succeeded in collecting the sum of P150 and Uy Chu King very willingly accepted said sum by way of a compromise to renounce his claim of  P1,000.  Among  those who  asked the Constabulary for protection, fearing the threat of the opposite group, was Valentin Montojo,  father of the deceased Jesus Montojo.   A month  had  elapsed  from  the time Uy Chu King received the P150 to Jesus  Montojo's death and,  granting that Mariano  Natividad  and his  followers had  sided with Uy Chu King, there is nothing to show that in the meantime they had done  anything to carry out their former threats to the members of  the Chinese Community  of Davao or to Valentin Montojo. With the foregoing evidence and facts, together with those not stated herein because they merely serve to corroborate details of very little importance, the prosecution claims to have shown  and proven the guilt of the appellants.  Leaving aside, for the time being, the evidence for the appellants which, as they correctly state in their brief, have not even been mentioned by  the lower court, we have  to  state that the evidence for the prosecution and the statement of facts made by its witnesses  are improbable  and unworthy of credit.  A man who  saw what  Hilario Capitan claims  to have  seen cannot behave  as  he did because the  natural reaction of a person who witnesses  the commission of a crime, unless he  himself is the author thereof, would be to report it  to the corresponding authorities or, at least, tell it to other persons.  Said witness was emphatic in his assertion that he  kept the secret for himself alone,  without communicating it even to his wife, until he met Sergeant Gonzalez of the Constabulary in a very casual manner one year after the incident.  A criminal himself, who has no sufficient self-control, in the long  run reveals  his crime, either because his conscience compels him to do so or because  he  wants to brag about it.  It is unbelievable and improbable that one, through a hole two inches in diameter in a wall made of thin board, would fail to see and observe all that may be on the other side of said wall at a radius of not less than four or five meters, particularly if the object he wishes to see is about three  or four meters from the place  he peeps through.  If Hilario Capitan saw the act imputed by  him  to the appellant  Mariano  Natividad, he should necessarily have seen also the third person who wit- nessed what Natividad was then doing because, according to him, the  two  were about four meters from him and he testified that  he saw only the feet of  said  person because  the  size of the hole prevented him from doing so. Granting that the appellants killed the boy Jesus Montojo, it is incredible and improbable that they should wrap him in a  piece of cloth and carry him procession-like to the pier  whose  lights were all burning, passing precisely through places where it was easy to see and recognize them, because it would  seem most natural for a criminal to seek darkness to hide  his crime.  On the other hand, there was no need for them to take their victim's body to  the pier as they could have left it  on the beach or thrown  it into the sea.   The  witness for the prosecution himself,  Alipio Miranda, who recovered Jesus Montojo's body  from the sea, testified that when he saw it it was  clothed only in  short khaki pants and colored shirt which shows that the bundle taken by the three appellants to the pier the night before, if any, was not the body of the child Jesus Montojo, otherwise it would have been found wrapped.

The testimony  of the witness  Juan Aranjes is not more worthy  of credit or  more probable because a watchman who is charged with and paid for watching a warehouse and an office at night is not supposed to leave his post  to go to rest 520 meters  away, as he claims to have done, as he could have done  so at his post or  in the vicinity  thereof. The improbability of the testimony of this witness is all the more  obvious because his entire statement appears to be fantastic and puerile.  He testified that by means of the light besides which post he had gone to rest, he saw  Mariano Natividad and  Marcos Enage three  or four meters away, headed for the pier carrying a tied  bundle  on their shoulder, with Uy Chu King trailing near behind. If the bundle carried by the appellants  to the pier  to be thrown from the pier to  the sea were the body of Jesus Montojo, it is unbelievable that they should  pass near him  because their own instinct would have told them not to  do so  in order not to be discovered, as it is to be  assumed that they  saw him because he was near a light.  If he really saw  what he claims to have seen, it is strange beyond measure that he did not report it to the authorities at the time, the following day or some  days later.   It should  be  noted  in connection with this fact and with the testimony of the former  witness, Hilario  Capitan,  that Dr. C. H. Deles, who made the autopsy, found no other marks of violence on the body of the child than those  already stated, which fact excludes  the idea that it had been  tied.

The testimony of Maria Kiamko and  of Remigio Ugbinar is not less puerile and unworthy of credit than that of the former two witnesses, Juan Aranjes and Hilario Capitan. The coincidence that the two went to the same store to  buy the same thing, there being other stores where they could have obtained it,  particularly taking into account the time of the day and the distance of said store from their respective houses, and the fact that Maria Kiamko, besides having a grudge against the appellant Mariano Natividad because the latter had ejected her from his house some months before the trial, could relate no other incident than what he stated with respect to the child Jesus Montojo and Uy Chu King, prove that said two witnesses have stated what they knew from  memory, having memorized it.

But leaving aside the  foregoing considerations in  order to discuss the evidence for the defense, we are constrained to state that, as  the prosecution has  failed to refute  it, the testimony of  Hilario  Capitan  and  Juan Aranjes  is questionable and very far from the truth.   The room where, according to Hilario Capitan, the crime was committed  by the appellants was not then occupied by  Natividad but  by persons who were strangers to him, as Egmidio Caking with his wife and children, Capitan's brother-in-law named Candido de la Rama, Domingo Salvador and their housemate named Ramon, who died before the trial.   The stairs which Hilario Capitan claims to have climbed directly overlooks, as formerly,  the room occupied by the three persons last mentioned, namely Candido de la Rama, Domingo Salvador and the deceased Ramon, and it formed  part of the place occupied by Egmidio Gaking ana1 family.  In the adjoining rooms there live other persons: Mariano Natividad's brothers-in-law and sister-in-law named Julio Pigarido,  Fidelina Sextoso and Cirilo Sextoso.  All of this, which has not been refuted  by the prosecution, together with the circumstance that Juan Laurel's house was one and a half meters from Natividad's house  and that around the latter  house there were other houses  not more than four meters  away, makes it improbable that the appellants,  particularly Mariano Natividad, did to the person of Jesus Monte to what is attributed to them by Hilario Capitan.   If Capitan  heard the groans of the child, the other neighbors would likewise have  heard them, particularly by those living in the same house.

There is no doubt that the child Jesus Montojo did not die a natural death.  Such is shown by the contusion  on his left cheekbone and by the  "internal hemorrhage" believed to be the effect  of the blow received  on said part of the body.   Who caused his wounds. The evidence does not say so.  However, there exists Hilario Capitan's insinuation, in emphatically mentioning: the stick carried by Natividad in his left hand, that the latter may  have used it in attacking the Montojo child, but such insinuation  cannot be true because  the physician's description of the contusion found on the body  does not  coincide with that might  be produced by means of a stick of the nature described by said witness.  And it is  unbelievable that the child died of asphyxia, having  been strangled  by Natividad, because the evidence does not say so,  the  physician  who  made the autopsy having remained silent with respect to the cause of death.

No importance should be  given to the contention that if the body floated on the occasion of its discovery, it was due to the maneuvers of the steamship Fernandez Hermanos which was then in  the port, because there is nothing  of record to show such fact.  If it floated, it was undoubtedly due to the fact that gases had already formed in the cavities thereof, which  shows  that the death of the Montojo child did not take place at 3 o'clock in the morning of said date, or that the appellants  had caused it as  the witness Hilario Capitan would make  us understand, but the day before, because as stated by the witness for the prosecution, Dr. C. H. Deles, a body  floats only after twelve hours.

If all the  foregoing circumstances,  considerations and facts  were insufficient  to create  a strong doubt in the mind as to the  responsibility and  guilt  of  the  appellants, we have the written retraction made by Hilario Capitan before the appellants formally appealed from  the sentence of the lower court.   Said  court should have  taken  into consideration  the appellants' motion  for  a new  trial based on newly discovered evidence which consisted in the retraction of said witness,  because the interests of justice so demanded.  There was no  valid reason  for not  doing so as the excuse that the court had lost jurisdiction to pass upon said incident, just because the appellants had orally expressed their intention to appeal beforehand,  is untenable.  Under sections 45 and 46 of General Orders,  No. 58, appeals in criminal cases do not take place and are not considered perfected until  after the  interested  party, or parties, has personally or through his attorney, filed with the clerk of court a written notice expressly stating the appeal.  (U. S.  vs. Tenorio, 37 Phil., 7; U. S. vs. Sotavento and Sotavento, 40 Phil., 176; Ricana and Glory vs. Provincial Warden of Tayabas, 54 Phil, 821; Elegado vs. Tavora. 59 Phil., 140. )  Therefore, an error is committed when the court, under the pretext that an oral notice  of  intention to appeal from its sentence in a criminal case has  been filed before it, while it still exercises jurisdiction over the case as the period fixed by law for filing a  written  notice of intention to appeal has not yet expired, refuses to pass upon a motion for  a new  trial  based  upon  newly discovered evidence.  It must decide said motion one way or  the other, as  it deems proper, because theretofore  it should  be considered as continuing to retain its jurisdiction, all the more so  because  Act No. 3785  provides that motions  of  that nature interrupt the period of fifteen days within which to appeal.

For all the  foregoing this court holds that all the errors assigned by the appellants are well founded.

Wherefore,  giving said appellants the benefit of a reasonable doubt which is  very  strongly  in  their  favor, and reversing the  appealed sentence, this court acquits them of the crime with which they were  charged, with the costs of  both instances de oficio.  It is hereby ordered that the appellant Uy  Chu King who is actually confined  in jail be released immediately, unless he is confined for other causes, and it is ordered furthermore that a copy of this decision be sent to the Solicitor-General so that he may order the person concerned to take the necessary steps for the prosecution of Hilario Capitan, for  false testimony, if sufficient  evidence is found  to warrant  such step.   So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, and Recto, JJ., concur.