This case is before us upon appeal from a judgment of the Court of First Instance of the Province of Leyte, finding the appellants, Manuel Babac, Bonifacio Villagracia, and Evaristo Villagracia, guilty of the offense of murder, committed upon  the  person  of  one Braulio Doyula, and sentencing Manuel Babac, as principal, to undergo imprisonment for  life  (cadena perpetua),  and  Evaristo  and Bonifacio Villagracia, as  accomplices, to undergo imprisonment for twelve years and one day, cadena  temporal, with the accessories prescribed by law, and requiring  the three jointly and severally to pay indemnity to the heirs of the deceased in the amount of P1,000, of which P600 was imposed upon the principal and  P200 each upon  the two accomplices, with the costs of prosecution against  the appellants.

On the  date stated in the information the three accused and the deceased started a game of tarapay (shell-throwing) in an open space in front of the house of one Catalino Ostaco in the barrio  of  Maricum, municipality  of  Dulag, Leyte.  While they were matching the shells at the beginning of the game, an unpleasantness developed and as a result Braulio Doyula, the deceased, signified his intention of withdrawing from the game.  As he arose from  the circle,  the appellant Babac seized the shells belonging to Braulio and threw them on the ground.  Braulio became angered at this  and attempted to strike Manuel but was unable to do so because the appellant Evaristo Villagracia caught and  held  his right arm.  At the same time Bonifacio Villagracia  seized and held Braulio by the left arm. Braulio at once attempted to free himself  from the two who were holding him, while Manuel Babac, who was now standing  behind  Braulio, drew  his bolo from its  sheath and with  this weapon gave Braulio a fatal  thrust  on  the right side of the back immediately under Braulio's shoulder blade.  At this  moment Juliana Lavarez, the mother  of Braulio, was standing a few paces  away; and when she saw Manuel Babac in the act of drawing his bolo, she called out, so as to be heard  by Evaristo  and Bonifacio Villagracia, that they should free Braulio because Manuel Babac had drawn his sword to attack him (Braulio).  These words spoken by  Juliana attracted  the attention of one Catalino Ostaco who at the time was occupied with some task or other on the porch of his house and who, up  to this moment, had  neither heard nor seen anything out  of the ordinary.  Immediately upon hearing Juliana Lavarez utter the words above mentioned, Catalino  Ostaco turned around and looked in the direction of the four men in the yard, and as he did so he saw Manuel Babac give Braulio Doyula the thrust in the back of which mention has been made.  Immediately after delivering this stroke, the assailant Babac turned and went away,  and  as he did so, he dropped, or threw away, the bolo  which he had used.

Juliana Lavarez fainted upon seeing her son thus wounded, and in a moment a brother of Braulio,  named  Potenciano  Doyula, arrived on the spot, whereupon Evaristo and Bonifacio Villagracia fled.   Potenciano followed them, but he soon desisted  from the pursuit and, returning  to assist his  brother, found him lying on the ground,  face downwards.  Potenciano  at  once saw  that  Braulio  was badly hurt and asked him if he had hopes of living.  Braulio replied that he would not survive,  and he  stated further that the person who wounded him was Manuel Babac and that the Villagracias were holding his hands at the time the  injury was inflicted. Within about twenty minutes thereafter Braulio expired.  It appears that all of the participants in this affair were young men about nineteen years of age, except Evaristo Villagracia, who was perhaps twenty-four.

From the foregoing statement it is clear that, in so far as  concerns  Manuel  Babac,  the offense committed  was murder,  qualified by treachery  (alevosia) since the fatal blow was delivered from  behind the deceased while the two Villagracias were holding the Iatter's  hands.  With respect to the two Villagracias, the case  is not so clear, inasmuch as it is not evident that at the time the fatal blow was struck these accused were holding the hands of the deceased in order to facilitate the attack made by Manuel  Babac.   It is  of  course certain that the killing was not premeditated and  is furthermore clear that when the two Villagracias first seized the hands of the deceased, they did so in order to prevent him from striking Babac.  Up to this point Braulio Doyula was the aggressor.

The case  for the prosecution rests upon an inference drawn from the failure of the Villagracias to release Braulio at once when the boy's mother called to them that Babac was going to attack.  Upon this it is insisted that the two Villagracias were evidently holding the  deceased  in order to assist Babac. But this conclusion is not, in our opinion, sufficiently certain to justify the court in fixing complicity in the crime upon the two Villagracias.  The proof shows that Babac was behind the deceased, and we infer from the evidence that the two  Villagracias also had their  backs to Babac, and they could not have seen with their own eyes what Babac  was doing.  Furthermore, after Juliana called out that Babac was preparing to strike Braulio, the! interval of time which elapsed before the blow was struck was too short to give the Villagracias time within which to act with discretion.  In other words, they had no time within which to deliberate; and at any rate they are entitled to the benefit of the doubt arising from the presumption that they were still merely holding the hands of the deceased in order to prevent him from  attacking his adversary.  We note in passing that the trial judge found the two Villagracias guilty in the character of accomplices.  We are of the opinion that,  if  guilty at all, they  are guilty in  the character of principals, inasmuch as their apparent participation in the offense was direct in form and material in substance. But for lack of criminal intent it must be declared that they are not  guilty in any  character.

It results from the foregoing  that the judgment, in so far as concerns  Manuel Babac, must be affirmed, and this accused  will  be  required to pay indemnity to  the heirs of the deceased  in the amount of P1,000,  without subsidiary imprisonment in case of insolvency;  while  the other two accused,  Evaristo  and  Bonifacio  Villagracia,  will be absolved from the complaint, without costs.   So ordered, with  costs  against the appellant Manuel Babac.

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

VILLAMOR, J., dissenting:

In my opinion defendants Evaristo and Bonifacio Villagracia are both guilty as accomplices.