Bias Ortiz and Modesta Zausa are charged with the  crime of homicide in an information, the relevant portion of  which reads:

"That on or about September 8, 1930, in the municipality of Pilar, Province of Capiz, P. I.,  the aforesaid  defendants, conspiring and helping  each other,  willfully,  unlawfully, and feloniously killed Sotero Bancoyo, attacking him with a bamboo  lance  (sumbiling)   and wounding him  on the left side of the abdomen, from which wound his  bowels protruded.  Contrary to law."

The defendants pleaded not guilty in the Court of First Instance of Capiz, were tried, and appealed from the judgment finding them guilty of said crime, for which they were each  sentenced to fourteen years, eight months  and one day  of reclusion temporal, to  indemnify the heirs  of the deceased in the amount of P1,000, to suffer the accessories of the law, and each to pay one-half of the costs.

Counsel for the appellants assigns in his brief the following alleged errors:

1. The trial court erred in giving credit to the testimony of the witnesses for the prosecution, and not to the witnesses for the defense, and in concluding that the deceased felt no resentment whatever.
   
2. The  court  also  erred  in finding  that  after  Sotero Bancoyo's  death, the male defendant placed the shotgun beside the corpse in order to pretend that it belonged to the deceased.
   
3. The  court likewise erred in  not finding that  it was Bias Ortiz  who wounded, assaulted, and  killed Sotero Bancoyo, and that  he did so in self-defense; and
   
4. The trial court also erred in not acquitting the defendants because they acted in self-defense."

With the exception of the last assignment of error, all the others  raise questions of fact.  It has therefore been necessary in order to decide them, to make a careful examination of all the parol and documentary evidence adduced at the hearing.   From an analysis of said evidence we find the following facts to be clearly proved:

Sotero Bancoyo,  the deceased, and the appellants had known one another for many years at the time the crime was  committed, for  his wife and that of the male appellant were sisters.   The  latter-named  appellant,  for reasons which do not appear of record, confiscated  and  retained several of the dead man's cedula certificates, which the latter resented.  About noon on  September 8,  1930, the deceased, accompanied by three laborers, companions of his, was  returning from a plantation belonging  to  Pio Brionson carrying some corn which he had gathered; on reaching the house preceding that of the defendants, as he felt thirsty he attempted to ask the occupants for water, but as they happened to be absent, he went to the defendants' house, situate  in the  barrio  of Malapoy, municipality of Pilar, Province of Capiz,  and while in front of the house, called out to the male appellant for a  drink of water.   The latter answered from within that they  had no water, and could not serve him, to which the  deceased replied: "May we not drink your water?"  The appellant rejoined, "But we have no water.  How can you compel  us to give you some water?"   And immediately  afterwards, he descended from the house carrying his shotgun,  which he  pointed at the deceased.   When the latter  saw the appellant's  aggressive attitude, he flung himself  upon him,  caught hold of the weapon, and they both struggled  for it.  At this juncture Modesta Zausa, the female appellant, companion of Bias Ortiz, took a spear from within the house, rushed down and with it attacked the deceased, stabbing him on the left side of the abdomen, so that the intestines  protruded.   (Dying declaration.)   The deceased fell to the  ground unconscious, was assisted, and that night  died of peritonitis.

The  defense  contends  that the  trial court  should have given more credence to the  witnesses for the defense,  and held that the shotgun belonged to the deceased; that a struggle took place between the deceased and the male appellant in the course of which the latter succeeded in overpowering his opponent and in obtaining the firearm; that  in defending himself the male appellant  wounded the deceased with the spear, and that the shotgun found after the fight beside the dead  man's right  arm  was not  placed there  by  the appellant.  As to the female appellant, the theory of the defense is that she took  no part,  directly or indirectly, in the attack.

The defense's account of  the occurrence finds no support in the  evidence.  It clearly appears that the shotgun belonged to the appellant, who had it for a long time before the crime; several of the witnesses for the prosecution saw him with the gun.  The appellant began the attack, because of  the  deceased's reproach in  exclaiming  there  was  not even water to drink in the appellants' house.   These main facts have been established by the testimony of the following witnesses for the prosecution: Guillermo Baldia, Ambrosio Tungala,  and Brigido Bernales; as  well as by  the deceased himself in his ante mortem declaration made  before the justice of the peace who took charge of the preliminary investigation,  and went at once to the place of  the crime.  The fact that the appellants testified to a  different facts, and that their two witnesses apparently corroborated them, does not mean that the evidence of the prosecution  has lost its value or that the real facts are not those established thereby.

It is  argued that the ante mortem statement  does  not contain all the requisites for its validity, because it appears that the deceased's statement that he was very  seriously wounded, and that he believed he would  not survive, was made after and  not before or at  the beginning of  the declaration.  We hold that the latter is not invalid for this reason.

At any rate, it  appears that the deceased made the declaration referred to with the full conviction that he was very seriously ill, and  with the consciousness that he was about to die.   (Underhill  on Criminal  Evidence  [2d ed.],  sec. 103; U.  S. vs. Castellon, 12 Phil., 160; U.  S. vs. Mallari, 29 Phil., 14; U. S. vs. Jakan Tucko, 20 Phil., 235;  U. S. vs. Virrey, 37 Phil.,  618; and U. S. vs. Ramos, 23 Phil., 300.)

After carefully examining all  the evidence presented, we have no hesitancy in finding that the attack was begun, as already stated, by the appellant Bias Ortiz, who levelled his shotgun at the deceased; that a struggle ensued between the two for the possession of the weapon; and that at this juncture Modesta Zausa came down from  the  house with a bamboo spear, approached the deceased and stabbed him on the left side of the abdomen, producing a wound so serious that it resulted in peritonitis, which caused his death that same night.

Finally, the defense contends that if the facts are really as stated, the appellant Ortiz should be acquitted because he did not take part in the attack made by  Modesta Zausa, and because, according to the facts, there was no previous agreement  between them to commit the crime.  In this we believe  the defense  is right.  It  has  been  indisputably shown by  the ante mortem  statement (Exhibit D) that while the deceased and the male appellant  were struggling for the shotgun, Modesta Zausa caught up the spear, hurried downstairs,  approached the  deceased, and  suddenly stabbed him with it.  From this it appears that there was no  plan or agreement between the appellants to carry out the attack which ended in the death of the victim, and that from the time Modesta Zausa thought of wounding the deceased to the time she actually did so, barely a few seconds elapsed, and this interval is palpably insufficient to give rise to the criminal agreement alleged in the information.

In United States  vs. Magcomot  (13 Phil., 386), we held:

"In the absence of a previous plan or agreement to commit a crime, the criminal responsibility arising from  different acts directed against one and the same person is individual and not collective, and each of  the participants is liable only for the acts committed by himself."

In United States vs. Reyes and Javier (14 Phil., 27), one of the defendants, named Reyes, suddenly and unexpectedly inflicted certain  mortal  wounds with his club  upon one Legaspi, while the  latter  was being held by the other defendant. It was  held:

"That Javier was neither principal nor accomplice in the commission of the crime of homicide of which Reyes was convicted, it appearing that there  was no concerted  action between him and his co-defendant, that he had no reason to believe that a homicidal attack was about to be made, and that, in holding Legaspi, he was not voluntarily cooperating therein."

In United States vs. Juares (21 Phil., 440), the judgment of conviction for homicide was reversed with reference to one of the appellants on the ground  that although in the course of a quarrel in a barrio he joined with some others who were threatening the deceased, he did not follow them in pursuing said deceased, there being nothing in the record to show that the accused had any reason for  believing that his  companions would take the victim's life should they catch him up.

In United States vs.  Monteroso and Monteroso (33 Phil., 325), it  was held that  "*   *   *  while the  record  discloses that the defendant Eugenio  Monteroso joined with his  father and  his brothers in the  quarrel which arose as a result  of the misbehaviour  of the deceased,  it does not conclusively appear that he was a party to the deadly assault of  which his father was guilty, or that he had  any means of knowing that his father was about to  make such an  assault  *  *  *,"   said accused  should  be acquitted.

In People vs. Martinez (42 Phil., 85), it is said that:

"As no evidence appears in the record showing that the three accused  had agreed to kill the  deceased, but on the contrary, as it appears from the evidence of the prosecution, that the  accused Leon Martinez, in  intervening in the fight between  his father and brother and  the deceased, acted independently without any previous agreement with his co-accused, it is not proper to consider said  accused, Juan Martinez and Francisco Martinez, to be responsible for the consequences of the wound inflicted upon the deceased by his co-accused  Leon Martinez."

Applying the same doctrine laid  down in the  cases cited to the case of  appellant Ortiz, we  hold that he cannot be convicted of homicide committed on the deceased Sotero Bancoyo, either as principal or as  accessory  before the fact, for it has been shown that there was neither plan nor agreement between him  and his  companion,  the appellant Modesta  Zausa, to commit the crime, and that he took no part in the latter's attack with the spear; and this notwithstanding the fact that the said appellant began by pointing his shotgun at the deceased, but without any consequences.

From all the foregoing it may be inferred that the first three assignments of  error are unfounded, but  that the fourth and last is well taken; wherefore, we have reached the conclusion that Bias Ortiz  did  not  incur any criminal liability for the act committed  by his co-appellant.

The penalty imposed upon Modesta Zausa is the minimum of the medium degree of that fixed by article 404  of the Penal Code, which is in accordance with law, there being no modifying circumstance present.

Wherefore,  the judgment appealed from is affirmed so far as it finds the appellant Modesta Zausa guilty of homicide and sentences her to fourteen years, eight months, and one day of reclusion temporal, to indemnify the heirs of the deceased in the amount of P1,000, to suffer the accessories of article 59 of the Penal Code, and to  pay  one-half of the costs of both instances, and reversed with reference to the appellant Bias Ortiz,  who  is  hereby  acquitted,  with the other half of the costs de oficio. So ordered.

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

MALCOLM and VILLAMOR, JJ. :