Appellant was prosecuted in the Court of First Instance of Capiz for the crime of murder and, after due trial, was found guilty only of homicide and sentenced to suffer seventeen years and four months of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased Maria Bigay in the sum of P1,000, and to pay the costs.

Appellant admits having killed Maria Bigay but claims that she committed the deed because she surprised her in the act of adultery with her husband, Angel Cortez, in the house of Lucia Celis. Her testimony in this respect is fully corroborated by that of Lucia Celis. Appellant's husband, in his testimony, also admitted that he was surprised by his wife in the act of adultery with Maria Bigay in Lucia Celis1 house. While, as a general rule, the testimony of a husband in favor of his wife should be carefully scrutinized, courts are not justified in rejecting it entirely as proceeding from a biased source. In the case at bar, no motive for the killing has been established, and granting that proof of particular motive for taking the life of a human being is not indispensable to conviction for homicide, the absence of such motive is nevertheless important in determining which of two conflicting theories is more likely to be true.

As declared by this court, in criminal prosecutions, matters of defense, mitigation, excuse, or justification, must appear by a preponderance of evidence. (People Embalido, 58 Phil., 152, 154.) We agree with the SolicitorGeneral that the preponderance of evidence in the present case does not justify appellant's claim that she acted in self-defense. If sufficiently indicates, however, that she killed Maria Bigay under the circumstances mentioned in article 247 of the Revised Penal Code.

Upon the foregoing premises, appellant is hereby sentenced to suffer six months and one day of destierro, and ordered not to be and remain within the radius of 25 kilometers from the municipality of Pontevedra, Province of Capiz.

Modified as above indicated, the judgment is affirmed with costs de oficio. So ordered.

Street, Hull, Butte, and Diaz, JJ., concur.