Appeal from a judgment of the Court  of First Instance of Cebu,  finding  accused-appellant guilty  of robbery with homicide  and sentencing him to  death.

On the morning of Sunday,  February 7, 1954,  the day of the fiesta in  the  barrio  of Baclayan, Boljo-on, Cebu, an  old  widow  by the  name  of  Canuta  Pepino  suddenly disappeared.  The last time  she was seen by an immediate member of  her family, her son Simeon Gonza, was on the previous evening, after the  latter had taken his supper  and while he was  in the  dance  hall of  the  barrio waiting for a scheduled dance to start.  Previous to this, Canuta had been in the  store  of  Miguel Pepino, where she had offered the latter  to pay for a pig that was to be killed on the day  of the fiesta but which offer was rejected by  Miguel.   As  she  offered to pay for  the pig, Canuta counted the P60,  price of the pig, to Miguel, but the latter refused to accept it, preferring to be paid for the pig after the fiesta.

Canuta lived with  a  grandson in the barrio, and when the latter returned in the morning, he found  that  his grandmother was not in the house.  She had not slept  in the house the  night  previous.   She was  searched  for  in the houses of her children, and as she could not be found, all her children and the people of tha barrio began to search for  her.  The search continued for two days, until  the evening of  Monday, but to no avail.  However, on Monday evening at about 10:00  o'clock, one Gerardo Caitor went to Simeon Gonza and told the latter  not to bother searching for his mother as the latter had been murdered by Gernimo  Incierto.  So Simeon advised Gerardo to go back home and  return  the  following  Saturday,  so  he and Simeon may go to the municipal hall to file the corresponding  complaint.  Gerardo did as he was told to, and on Saturday, February 13, they went to the chief of police, who thereupon took their afndavits and filed the complaint against Gerónimo  Incierto  for robbery with  murder.  On Tuesday, February 9, a patadiong was discovered by two fishermen in the bottom of the sea.  This was identified as belonging to the missing woman.

Three witnesses testified for  the prosecution to prove accused-appellant's connection with  the  murder.  Simeon Gonza testified that when his mother counted the P60 to Miguel  to pay for  the pig,  the appellant "was present and saw the money, and even asked  her to buy some tuba for him, but that the widow answered that the money was exactly  P60 and that  if some amount is deducted, it will no longer be enough to buy the  pig.  Gerardo Caitor testified that he saw appellant at around 9:00 in the evening of Saturday at a hantak game near the dance hall; that he played until around 11:00  at night,  and that then  he left the place, going to a store to drink tuba; that  before he reached the store, appellant called him aside and asked him to  help him carry a dead body, which appellant disclosed to be  that of Canuta, but that Caitor refused, saying that he was afraid; that both of them  then drank tuba in the store, and as Caitor was about to leave, appellant took him aside and warned him,  "Do not reveal this to anybody, because you  are the only one who knows about this  incident."  The third witness is Anatolio Nierra, who testified that on February  26, 1953 he and  Canuta (the deceased) were together in a road, as he came from a store of Canuta's brother; that while  on the way,  he felt a call of nature and so he stopped to answer the call, while Canuta proceeded on; that while he  was still urinating, he heard the shriek of Canuta, and when he continued on his way, he heard the appellant say,  "Is she  still  alive"; that he then asked appellant, "What is the matter,  Imo?"; that appellant answered him,  "Be quiet  Iliong, I will also kill you," and  that because of fear he  ran away.

The prosecution  also  presented the appellant's  confession,  Exhibit "B" (translation attached), where appellant states that Gerardo Caitor had proposed to him that they rob the deceased; that he consented and when they saw the deceased walking, Caitor ordered appellant to strangle the deceased,  while he  (Caitor)  was to take away her money; that Caitor pocketed the money and never gave him a share therein;  that after the deceased had  been killed Caitor proposed that they throw her body into the  sea, as they actually did; and that thereafter, they went to  a store to drink tuba, and then separated from each other, Caitor promising to divide the money the next day.  According to the justice of the  peace of Boljo-on, before whom the statement was  taken, the same was taken by a stenographer, he asking the questions  and  the  appellant answering them. Appellant  admitted the taking of the statement and his signature thereto, but declared the statement was not true. However,  in a subsequent statement,  Exhibit  "A",  he corrected the portion of the previous  confession, Exhibit "B", attributing participation  of Caitor in the  commission of the crime, saying that Caitor did not  actually take part therein.

The appellant  limited himself to denying  all the  acts imputed to him and declaring that at about 8:00  in the evening of Saturday, he went home and stayed there till the following morning.  He  did not introduce anyone to corroborate  this statement.  The court  below  found that the prosecution, had succeeded in proving a chain  of circumstances that pointed to the appellant as the one responsible for  the death of the deceased,  who was,  after being killed, thrown into the sea by appellant.   The court, however, held that only homicide was committed, as  there was no evidence of any qualifying circumstance of murder, not  even abuse  of  superior  strength.  It held that the motive  of the crime must have been  to rob the deceased of her  money.  It also found that nocturnity aggravated the  offense, and so imposed  upon  appellant the supreme penalty of death.

We are satisfied that Canuta Pepino was killed and later thrown into the sea on the evening of Saturday, February 6, 1954, and that the motive for the crime was robbery, as it was conclusively  shown that she had P60.00 in her possession before her  disappearance.  The defense does not  dispute this  fact.   However, it claims that  the  testi- monies  of Gerardo Caitor and Anatolio Nierra, principal witnesses for  the prosecution  should not be believed, and appellant's confession, Exhibit "B", should not have been received as evidence, in view of the absence of a translation.

Insofar as the testimony of Anatolio Nierra is concerned, we  agree with the counsel for the defense that there are supposed facts stated therein  which disclose its unworthiness. There is,  first,  the very material error as to the date of the supposed commission of the crime.

Whereas, it actually took  place on  February 6,  1954, witness testified  that the occasion  happened in February 26,   1953.  Again this  witness declared that  on  the day of the disappearance of the deceased,  he participated in the  search for the body of the deceased.  It is strange that at that time he failed to disclose to  anyone that on the  night previous he  had heard the deceased, scream and had seen her motionless body lying on the roadside.  Neither did he  indicate then where he saw the dead body, as he should naturally  have  done.   This conduct on his  part is quite strange.  Lastly,  the reason why, according to him, he testified for the prosecution was because there had been a delay  in the trial of the appellant because of the absence of an  eyewitness;  and  that  upon learning of  this fact he approached the son of the deceased and suggested that he could testify to supply the deficiency in the evidence for the prosecution.  It is evident, therefore, that he may have been a last-minute witness offering himself to help bolster the case for the prosecution.  There is also confusion in his mind as to the order in which the disappearance, the search for the body and the arrest of the accused happened  in relation to one another.  He said that the accused was arrested the day following the disappearance, which is not correct.  We are, therefore, inclined to agree with the attorney for  the  defense  that  the testimony  of this witness should be rejected.

But with  respect to the testimony  of Gerardo  Caitor, we are  fully satisfied that it  articulates  with the facts and circumstances testified to by the  other witnesses,  or those that were admitted by the defense.   Thus his statement that he attended a hantak game together with the appellant is  admitted  by the appellant.   That appellant should ask Caitor's help to carry the body is  made probable by reason of the fact that the appellant had loaned him money and naturally the  appellant thought that  he could expect help from him.  Again, the mere fact that appellant in  his first confession,  Exhibit "B",  pointed  to Caitor as his companion, which statement was made immediately upon his arrest, discloses or indicates that Caitor had knowledge  of the  commission of the crime and that appellant knew  that he had such knowledge.  And lastly, in a spirit of repentance and a desire to do justice to Caitor, appellant finally admitted in his confession  that Caitor did not actually participate in the commission of the crime.

Of course, the  strongest evidence against the  accused is his own confession, Exhibit "B" where he admits having choked the deceased.   This confession given by him voluntarily before a competent officer, the justice of the peace, who testified to  the voluntariness thereof and the regularity in the preparation of the same,  The  appellant did not deny having made  that  confession;  he admitted  at the trial that he actually confessed to his guilt when the statement was being made,  which admission  shows that the confession reflects  the  truth  (except as to Caitor's supposed participation) and not a statement of facts imposed upon the appellant.

The simple denials of the  appellant  are not  sufficient to destroy or affect the worth of the evidence submitted by  the  government  against the appellant.  If the appellant was really not guilty and was somewhere else at the time of the commission of the crime,  it  should  have been easy  for him to  secure  witnesses  to  this fact.  He did  not, however,  present any  and  we  are  inclined to believe  that no such witness was presented because  none could be taken  by  him  to  support  his claim.

For  the  foregoing considerations, we are fully  convinced that the appellant is guilty of  the crime of robbery with homicide, which offense was attended by the aggravating  circumstance of nocturnity.   Under the circumstances,  the penalty of death,  which is the  maximum prescribed   for  the  offense, should  be   imposed.  However, there is  no sufficient number of Justices in favor of such penalty,  so the Court is  constrained to reduce, as  it hereby reduces, the sentence imposed by the trial court to reclusion   perpetua.  In all other  respects,  the  decision appealed from is affirmed, with  costs against appellant.

Paras, C. J., Bengzon, Montemayor, Reyes,  A., Bautista Angelo, Concepcim,  Reyes, J. B. L. and Felix, JJ., concur.