The appellant in this case was charged with the crime of parricide. He admits having killed his wife, but claims that he surprised her in the act of committing adultery. The lower court found him guilty of the crime of parricide as defined and penalized by article 246 of the Revised Penal Code, and sentenced him to suffer cadena perpetua, with the accessory penalties provided by law, and to pay the costs.

On this appeal, he contends that he should have been sentenced in accordance with article 247 of the Revised Penal Code, which reads as follows:

"Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro."

In cases of parricide, the prosecution is required to prove three facts, namely: (1) That death of the deceased: (2) that he or she was killed by the accused; and (3) that the deceased was a legitimate ascendant or descendant, or the legitimate spouse of the accused. If the deceased is either the father, mother, or the child of the accused, proof of legitimacy is not required. Once these facts are established beyond a reasonable doubt, conviction is warranted. Matters of defense, mitigation, excuse, or justification must appear by a preponderance of evidence.

We have carefully considered the evidence presented in this case and we find no sufficient ground to hold that the appellant surprised his wife in the act of committing adultery. The case, therefore, does not come within the purview of article 247 of the Revised Penal Code. It follows that the lower court committed no error in finding the appellant guilty of parricide as defined and penalized by article 246 of said Code. Appreciating, however, in his favor the mitigating circumstances of illiteracy and of voluntary surrender to the authorities, we sentence the appellant to suffer the penalty of twelve years and one day of reclusion temporal (Rule 5, article 64 in connection with rule 2, article 61, Revised Penal Code).

Modified as above indicated, the judgment appealed from is affirmed, with costs against the appellant. So ordered.

Avanceña, C. J., Street, Ostrand, and Butte, JJ., concur.