This is  an appeal  by Tia Fong alias  Ah Sam against a judgment  of the Court of  First Instance  of  Misamis Oriental finding the' said Ah Sam, Maximo Alcantar,  Florencio Bahala  and  Rufino Palarca guilty of homicide and sentencing each of them to suffer the indeterminate penalty of from eight (8) years and one (1) day of prision mayor to fourteen (14)  years and eight  (8)  months of reclusion temporal, to indemnify the heirs of the  deceased Lian Kaw in the amount of P3,000 and to pay the costs.  Only the said Ah Sam has appealed.

It appears that early in  the morning  of  February 21, 1950 the Municipal  Mayor of Mambaiao, Misamis Oriental, was informed that  a dead body was lying in the coconut plantation  of  one  by  the  name  of Juan Neri  in said municipality.   The  Mayor and some of his1 policemen and the President of the  Sanitary  Division went to the place indicated, and there they found the dead body  of a Chinaman named Lian Kao, 28 years of age, son of Chinaman Wong  Kiat.   The  President  of  the  Sanitary   Division found  the  body in  a state of rigidity and calculated that death must have occurred from 9  to 12 hours before' the discovery.  He found an incised wound one inch in length on the right  brow,  a  depressed wound ½ inch in depth at the vertex of the head, ecehymosis with slight tumefaction of the head  and the upper part of the neck above a line which appeared to be the line  of strangulation.  The body  was found  with a  belt tied  around the neck,  and the president  of  the sanitary division was of the  opinion that death was caused by suffocation or by strangulation after the  victim had become unconscious.

The.authors of the crime could not be immediately determined until a lieutenant of the Constabulary by the name of Alberto N. Chavez was detailed  to conduct the  investigation. He  began making  inquiries in and  about the place.   He suspected Florencio Bahala,  who was living in the neighborhood, and subjected him to a rigid questioning.   He  noticed that his  statements did not agree with  those  of his common-law  wife.  After some time Chavez succeeded in convincing him, through the  help of the wife,  to own his part in the crime.  Bahala made a confession,on March 9, 1950.  The confession of Maximo Alcantar  and Rufino Palarca were also secured.   So an information was filed on March 9, 1950.   This was amended  on March 10, 1950.  The  persons accused  were the three  above-mentioned  who  has confessed, and Heracleo Limbaco and the appellant Tia Fong alias Ah Sam.  Both Limbaco and Ah Sam denied complicity in the crime.  At the trial,  the  other defendants repudiated  the confessions they had  made.  This  notwithstanding,  the court found four  of them guilty.   Heracleo Limbaco was  acquitted of the charge.  As only Ah Sam has appealed the decision, only such facts as are relevant to the charge against him , "will be considered.

Sometime before the incident, Ah Sam was in partnership  with Wong Kiat  and other  Chinamen.  Ah Sam separated from Wong Kiat and the others and established a store of his own.  A  compadre of his  by the name of Hermogenes  Tago  testified  that at eight o'clock  in the everjng of  February  20, 1950, after he  had closed the store and while he was outside, he  saw Tia Fong pass by and  had occasion to  converse with the latter.  Ah Sara complained  that  his  business  was  flying because  Wong Kiat, the father of the deceased, and his companions  would not sell him bread to sell in his store.  Ah Sam after a while said it is better that Wong Kiat and Lian Kaw be whipped.

The  evidence mainly relied upon  for the conviction of Ah Sam is his silent participation in the  reenactment of the crime by  his co-accused Florcncio Bahala, Maximo Alcantar and Rufmo  Palavca.   With the confessions of these three accused on hand, Lt. Chavez and a subordinate of his, Sgt.  Fernandez, asked the accused to reenact the crime and photographs of the acts reenacted were  caused to be  taken.   In  all the  most important incidents  and details of the  commission of  the crime.  Ah  Sam took part, although  silently, under  the direction of the  Constabulary and his three co-accused.

In Exhibit "Q" Tia Fong reenacted his position while wailing for  his co-accused.  In  Exhibit "II" he reenacted his own position when he and his co-accused were talking together planning the commission of the  crime.  In  Exhibit "R" Ah  Sam also  reenacted  his own  position or participation while he and his co-accused were waiting for Erak (Heracleo Limbaco), who had gone out to look for the  intended  victim  and present  him to  them.  In Exhibit "K" Ah  Sam also re on acted his  own  position in relation  lo  the other  accused  when Erak accompanied the victim  and the other accused  followed them Erak and  tho victim.

Exhibit "M" represents the positions of all the accused, Ah Sam included, as the  victim fell unconscious after he had  been assaulted.  In this same  exhibit,  Ah Sam  re-enacted the  part he took in untying  the belt of the' victim, In Exhibit  "N"  Ah  Sam played  his own part, shoving the method in which he strangled  the victim.  Exhibit "U" is the photograph of the manner in which appelant tied the belt which he took  from the victim's  waist .and with  which  the  latter was strangled,  while Exhibit "W" reenacts the distribution of the money by  him to his co-accused.

The witnesses for the  prosecution  especially Lt. Chavez, testified that Ah Sam took part in the reenactment of the crime and without any opposition on his  (Ah  Sam's) part. He (Ah Sam)  neither  opposed nor denied to take part. On one occasion Ah  Sam himself, according to Lt. Chavez, corrected  his  co-accused  as  they were reenacting their respective positions  as  Exhibit  "K" was being taken,  as witness  the  following testimony

" * * *
A. Tia  Fong did not object  neither did he  show  signs of complaint when his co-accused  indicated  their relative positions  in the picture.

Q. In what pictures or scenes which were photographed, was it in all occasions in which Tia Fong ever made any correction or complaint regarding their relative positions?

A. As a matter  of fact, in one of those picture, Tia long after his  co-accused indicated his  relative position in the picture, complained to the fact that his position was not  right, and consequently, he said that he was not supposed to be on the right side of the picture but on the extreme left of the road or street.
* * * "

Ah  Sam testified that  before the reenactment of the crime  ho was told before hand  to obey  whatever  instructions  Sgt. Fernandez would give, and that he  (Ah Sam) tried  his  best  to  obey  said instructions According to him, Sgt. Fernandez would first read the paper (confession of his co-accused), then direct  the  accused to assume the positions,  and  lastly ordered  pictures  to be taken. Ah Sam further declared that he Just  followed  the directions given  by  Sgt.  Fernandez  because he  had  already been maltreated.  The supposed maltreatment consisted in having been  boxed in  the solar plexus  as  a  result  of which he involuntarily urinated.

The trial judge held that the  guilt of  Ah  Sam  was proved  by his participation in  the reenactment of  the crime.  His counsel, on this appeal, argues that it  was error for the trial court to consider said participation as an evidence against; him, because  all that the appellant did  during the entire  period  of  the  reenactment was to remain silent and do what he was told and directed to do. Against this contention the Solicitor  General argues that the appellant himself voluntarily took part in the reenactment and in one instance corrected the position which he was .directed to take.

We have carefully reviewed the evidence, especially the testimony  of the appellant on the  circumstances leading to his participation in the reenactment,  and we  find  no evidence to sustain the claim  that he was forced against his .will to participate therein.  It is 'true  that  Ah  Sam stated that he' was boxed on the solar plexus, and Was  later brought to, a  toilet where he was compelled to  put his face in  the  bowl, but these supposed instances of  maltreatment  relate to attempts to extract a confession from him, not to compel him to take part in the reenactment of the  crime.   He stated that Sgt. Fernandez  had  warned him. to obey his orders  in the reenactment otherwise  he . would again be subject to maltreatment, put we find nothing to  corroborate  the making of the supposed  threat and appellant's willing conduct throughout the  reenactment does not evince the supposed threat.  We have  searched the  record in vain for any act or  word of  protest from appellant,  either  before the reenactment or  during the entire period  thereof, against  his taking part  therein. Appellant's counsel himself admits that the appellant was silent, doing what he was told to do.

But  counsel  for the  appellant contends  that as  the appellant was under  arrest at the time of the reenactment,  his  taking part therein should not  be considered as evidence against him.

The principle that may govern the relevancy and admissibility of appellant's participation in the reenactment is stated in section 8 of Rule 123 of the Rules, which provides:

"Sec. S. Admission by  silence. Any act  or declaration made in the presence and "within  the observation of a party who does or says nothing when  the act or  declaration is such as naturally to call for action or comment if not true, may be given in evidence against  him."

In tine case decided by us, U. S. vs. Bay, 27 Phil., 495, the defendant was accused before the councilman  of  a barrio with having criminally assaulted the offended party.  The defendant kept silent  as the latter  explained the  assault, neither admitting  nor denying  the  imputation.   At  the trial he allege that the imputation was false,  but we held that if it were so, he would have instantly and indignantly denied the imputation when made before the councilman.

But in  another case, we also said that if a defendant remains silent during  an official investigation  by a IFiscal, such silence  is no evidence  of his  guilt, as  said  official investigation was no occasion for denying the imputation then being made against him  (U. S.  vs. De  la Cruz,  12 Phil., 87).

There are  other related principles,  in  connection with the silence of an accused in  criminal  cases, namely, that his failure or refusal to  testify may not  be taken as evidence against him (Rule 111, section  1 [c],  and that  he may  refuse  to answer an incriminating question  [Rule 123,  section  79].  It  has also  been  held that while  an accused is under custody his  silence  may not be  taken as evidence against him as he has a right to remain silent; his silence when  in custody may not be used as  evidence against him, otherwise his right of silence would be illusory.

"Section   1259 (d)  Silence under  Arrest.  Some of the  courts have held that the fact that  one is under arrest  and in the custody of an officer, when he is silent under accusation, prevents his  silence or the statements themselves from being  admissible  against him, on the ground that  under such circumstances he is not called upon to speak. Other courts have held that this circumstance alone does not render the evidence inadmissible, and that an  accusation of crime calls for reply even from a person under arrest or in the custody of an officer, -where the circumstances  surrounding him indicate that he is free to answer.if he chooses so to do.  * * *", (16 C. J. 633.)

"Sec. 574. Accused under Arrest or in custody. The authorities are divided  as to the effect on the admissibility of an incriminating statement made  in the presence, of an accused,  and not denied  by him, of the fact that lie was  Tinder arrest or in  custody under a criminal charge  at the time the statement was made.  According to some decisions,  the mere fact  of  arrest, alone, is  not sufficient to render the testimony inadmissible, but such, fact deserves  consideration only as one of  the circumstances under which the accusation was made,  in determining whether the accused  was  afforded an opportunity to deny  and whether he was naturally called to do so. Another view supported by many  authorities is that the  mere fact that an accused  was  under arrest is sufficient to render inadmissible the fact  of the failure of the accused  to  deny  accusatory statements made in his presence and bearing.  According  to this view, it  is common knowledge and belief  of men  in general that silence while under arrest is most conducive to the welfare of an accused, whether he,  is  guilty  or  innocent.  *  * * " (20  Am, Jur. 486.)

But the better  rule  is to  consider  the  circumstances  in each  case  and  decide  the  admissibility of  the silence accordingly.

"(4)  Certain  situations  in  particular  may  furnish  a positive motive  for  silence without regard to the  truth or falsity  of the statement. Whether  the fact that the party is at the time under arrest creates such  a situation has been the subject  of opposing opinions;  a few Courts (for  the most part  in acceptance  of  an early Massachusetts  precedent), by a rule of thumb exclude the statement invariably; but the better rule is to allow some flexibility according  to  circumstances: *  * * "  (IV  Wigmore,  pp.  80-81.)

Let us now  examine the facts and  circumstances  of the reenactment in  view of the  above principles.

The reenactment  of  the crime was  not  a  part  of  a formal official  investigation like one conducted by a justice of the peace or  a  provincial fiscal.  The  reenactment was a policy contrivance, designed, to test the truthfulness  of the statements  of the  witnesses who  had  confessed the commission of the offense.  If the  appellant  herein had not really taken part in the commission of the crime,  his immediate reaction when he became aware that the  crime was to  be reenacted, should have been to protest against the implication  of-the  reenactment or  to refuse his indicated participation therein.  One of  the accused, Heraeleo Limbaco, did  not  admit participation in  the crime.  Like the appellant,  he  did not  confess yet  he was  not  asked to participate  in the reenactment.  On the  other  hand the appellant readily  took  part therein.  If he did  own participation in the offense he should have refused,  at least in the  beginning, to  participate in the reenactment or to follow the  directions  indicated.   Far from doing so, he acquiesced and willingly took  part in the reenactment as directed.  If the appellant had the courage to refuse to own his guilt  when he was boxed on  the solar plexus, or when he was  forced to put his face in the toilet bowl, why did he not have the courage to protest his participation in the reenactment before or while it was being conducted ?

It is to be noted that the implication of guilt in the case at bar  is not  derived from mere silence;  it  is inferred from  appellant's silent  acquiescence in  participating in the reenactment  of  the crime.   More than mere  silence, appellant committed  positive acts without protest or denial when he was  free to refuse..  Had  he not  actually participated in the  commission of the offense for which he is charged, he would have protested being made to take part in the reenactment thereof; he would have- informed  the public officials  at the  time  of the reenactment, or immediately  prior thereto,  that he did not actually take part in the commission of the offense.  We, therefore, find that the trial court  committed no error in taking into account appellant's participation in the reenactment as voluntary and in considering it as evidence  against him.

The circumstances or evidence submitted against  the appellant in this  case are as follows: he was the only one among  the accused  who  had a  motive  for causing  the death of Lian  Kaw; had he  not actually participated in the commission of the offense  he would have been  able to introduced  positive  evidence that  he was either  not present or was somewhere  else and, therefore, could  not have taken part  in the said crime; the  confession of  his co-accused as to  the reason for the killing and as to  the manner in which the offense  was committed corroborates or indicates the probability of the appellant having participated therein; and his silent acquiescence  in  taking part in the reenactment and his voluntary and ready participation therein produce conviction as to his actual participation in the commission of the offense.   The above circumstances convince us that the appellant Ah Sam participated in the commission of  the  crime,  inducing  his co-accused to help him perpetrate it, he himself actually taking direct part therein.   We find, therefore,  that the  trial court committed no error in  finding him guilty as charged.

The Solicitor General calls attention to the fact that the crime committed is not mere homicide, but murder.   The information charges murder, and the facts  found show that the killing of the deceased is attended by one qualifying circumstance,  that of' evident premeditation.  The other aggravating circumstances. possibly attending the commission of the crime cannot be imputed to the appellant herein, so the offense  with which  he may be convicted  is  that of simple murder qualified by the circumstance of evident premeditation.

The judgment  appealed  from is hereby modified  and instead  of homicide the appellant Tia Fong alias Ah  Sam is found  guilty of murder, without any  aggravating  or mitigating circumstances.  The sentence imposed upon him by the trial court is therefore raised  to that of reclusion perpetua.  In all other respects, the sentence imposed is hereby affirmed,  with costs  against the appellant.

Parás,  C. J., Bengzon, Padilla,  Montemayor, Reyes, A., Bautista Angelo, Reyes, J. B. L., and Endencia, JJ., concur.