The defendants in this case were convicted of the crime of having maliciously and criminally set fire to a quantity of personal property located in a room in a house occupied by and  in possession  of other persons, and thereby  having damaged or destroyed the same.   They were found guilty of the crime charged, by the Court of First Instance of Manila, Hon. Charles S.  Lobingier  presiding, and sentenced to imprisonment for one year and one day, to indemnify the injured  party for the value  of the property damaged or destroyed, and to  pay the costs  of the trial.

The questions involved in this case are very largely of fact.   The learned  trial judge in his opinion, which forms the basis of his judgment of conviction, presents the facts with  clearness and force.  He says:

"The following are established by the undisputed evidence as facts in this case:

"On the afternoon of July 6, last,  the two accused after spending  several hours  together  and drinking freely  of intoxicating liquors (p. 48) entered a house of prostitution on Calle Balic-Balic in the District of Sampaloc, each occupying a  room with one of the inmates  (pp. 24, 44).  The accused remained in the house at least a quarter of an hour and were the only men there (p. 32).  As they were leaving, an alarm of fire was given and the defendant Balmori ran from the house arid was pursued and later overtaken and apprehended by one of the women employed in the house who then  and there charged the said accused with causing the fire (p.  49).  The other accused,  Apostol, disappeared and was not seen after Balmori left him (p. 51).   The fire for which the alarm was given was in a room occupied at the time by one Agapita Rivera.   A policeman (Woodward) who arrived soon after found the walls and roof scorched and the bedding, bed-trimmings and a quantity of woman's apparel partially burned and the  bed itself ruined (p. 41).

"The only real points in dispute are the identification of the incendiaries  and the extent  of  the  damage.  Agapita Rivera, who was in  the room where the fire occurred, testifies  (pp. 23, 24, 29, 30)  that the  two accused entered there from  the other  rooms where they  had been staying, that Balmori  lit  a cigarette and then  struck  a match which he applied to a  bundle of skirts hanging on the wall and handed it to Apostol who applied it to the bed-trimmings, and that both accused then started to run  down the stairs.  A rigid cross-examination leaves this  testimony  unshaken.

"Pilar Fajardo, who  was below  and pursued and apprehended Balmori,  testifies (pp. 33, 35)  that she did so because Agapita Rivera called out to her from the room in question  which she was just leaving, to pursue the accused as the incendiaries.  Petra Angeles also  testifies (p.  3) that she  heard the cries to detain the accused and that she saw them descending the staircase.   Agapita Rivera's cries. at the moment the fire broke out  are part of the res gestae with all the  weight which belongs to such evidence and her identification of the accused is thus corroborated to a certain extent by two other witnesses.  It  is only contradicted by the testimony of one of the accused,  Balmori, who says that he did not enter the room in question.  Either his testimony or that of the women and especially that  of Agapita Rivera must  be  rejected on  this point and  we think that the surrounding circumstances render the testimony of the women more  trustworthy.  In the first place it  is doubtful if the only accused who testified was in a position to remember what  he  actually did at the time  in question.   As already stated he had been drinking freely  and he himself admits (p. 46) that his  mind was not entirely clear until the next morning  after a night in jail.   We  are disposed  also to agree with the prosecuting attorney that the act which is charged is just such a one as  would be committed by men in the initial stages of intoxication.  The person or persons who started the fire evidently did not intend  to burn the building,  else they would have applied the match to some more inflammable portion.  Their purpose apparently was malicious, though less serious, mischief with a possible view of enjoying the scare  which the act would cause  to  the inmates.

"In  the second place the defendants' theory  would leave no reasonable explanation as to the cause of the fire, which, it is  conceded,  occurred.  It is unreasonable to suppose that the  inmates themselves  would cause the destruction of their own property and it is shown by the defense (p. 32) that the accused were the only men in the house at the time. The testimony offered by the prosecution affords an adequate explanation of the cause of the fire.  The testimony  for the defense leaves this wholly  unexplained.

"Finally,  no motive  is suggested on  the part of these women for falsely imputing the crime to the accused.  The latter were  patrons of the house, the injured woman's testimony (p. 31) is undisputed, that there was no  preceding trouble and, if the conduct of the accused was not different than as described by defendant Balmori, such  a  concerted effort  on  the part of the inmates  against the accused as Balmori testifies to would be unnatural and inexplicable.

"Counsel for the defense lays stress upon certain alleged inconsistencies and improbabilities in the testimony of the women, but  we do not find anything of  this  sort  which materially affects  the essential elements of the case  made by the prosecution.  If the witnesses do not all agree on the minor  points it at least negatives the idea of collusion and if the principal witness for the prosecution is not entirely clear as to the details of the occurrence it must be remembered that the latter was an  occasion of much confusion. But on the whole we can find  no sufficient reason to doubt the correctness of the main points related by these witnesses and we accordingly find the accused  guilty of  the  offense defined in article 557 of the Penal Code.

"THE PENALTY.

"For this offense depends upon the amount of the damage caused.  At the trial this  question appears to have  been confused with that of the value  of the property destroyed but  the two questions are not necessarily identical.   We take it that the owner of the property was "damaged" in an amount  which  would be needed  in  order to replace the articles although these might not have sold  in the  open market for the same amount.   The list of articles with the value of each as detailed by her (pp. 4, 5, 6) is as follows:

Eight skirts................................................................		P16.00
Two blankets...........................................................		8.00
One colgadura ........................................................		4.00
Three pillows.............................................................		9.00
Pour camisas (waists) ...............................................		28.00
Twelve camisas.........................................................		36.00
	Total..........................................................	101.00

"There is no  contrary testimony on  the question of the value.  This witness  says that she based her estimates on the cost price and she also states, (p. 17) what is notoriously true,  that the prices  of such  articles were formerly lower than at present. So  that we can not fairly presume  that if she had gone into the open market to replace these articles they could have been purchased for any less than the original cost, especially as some of  them were  practically new (p. 14).   None of them were unserviceable and for those, like the skirts, which were partially worn a deduction was made from the cost price (pp. 2, 13).

"It is not necessary to call an expert to  prove the value of wearing apparel  in common use (12  Am. & Eng. Encyc. of Law (2nd Ed.) 478 n 9; Parmalee vs. Raymund, 43 111. App., 609;  State vs. Finch, 70 la., 316;  59 Am. Rep., 443). In this case the witness testifies (p. 17) that she has resided some fifteen years in Manila and during that time has been purchasing  articles of  this class.  Under these circumstances and the fact that she purchased these identical goods, we think her testimony, undisputed as it is, regarding their value, must be accepted.  But we repeat that the question is not so much one of value as of damage and in the absence of any showing on the part of any of the defendants that the complaining witness  could replace the  destroyed  or injured articles for a  sum less than that testified to by her we must find that such is  her damage and that the penalty falls within paragraph 2 of article 557.

 "As to the attending circumstances  we find that  the offense was committed by the accused in a state of intoxication, not shown to be habitual, which is  therefore an extenuating circumstance under  Penal Code article  9 (6). On the other hand the offense was  committed in the dwelling of the aggrieved party which  is an aggravating circumstance under article 10 (20).   By virtue of article  81  (4) we are authorized to counterbalance one  of these circumstance against the other, and it  not being shown that either of the accused had committed  a  previous offense we shall apply the  penalty in its medium degree, giving the accused also the benefit of the lower medium.

"Each of the accused is therefore sentenced to imprisonment for one year and one  day,  to indemnify the injured party, Agapita  Rivera, in the sum of 252  pesetas with subsidiary imprisonment  according to  law in case  of insolvency and to pay the costs of this prosecution."

We have made a careful study  of the evidence and have given careful attention to  the very elaborate printed briefs and  arguments  of the  appellants.  We are  unable, after diligent inquiry, to find any reasons upon  which we could base ourselves in reversing the judgment of the court below. The  question  before  us is very largely one of fact.  The court below saw the witnesses testify, observed their manner upon the stand, and drew his conclusions  as to the  weight which ought to be given to the  testimony which they gave. We have many times laid it down  as a rule, that we will not interfere with the conclusions of the  court  below based upon the relative credibility of  witnesses who give conflict- ing testimony, unless  there  appears in the record  some fact or circumstance of weight or influence which has either been overlooked by the court or has been  misinterpreted by him, or has not been given its due weight and significance. We have searched this record in vain for such error.  We are painfully aware of the effect which a conviction may have upon the future  of these two  young  men and have given the matter thorough and  deliberate consideration. We are also  aware that property of individuals must be protected, and  that when their rights  therein have been invaded,  maliciously and  criminally, the only redress is in justice.

We believe, however, that the judgment should be modified.  The facts as presented by the evidence do not warrant the  finding of the  aggravating circumstance of morada. (Supreme court of Spain, decision of June 16,1884.)   Eliminating this, the penalty must be  imposed in its minimum degree.  With the modification, that each  of the accused is sentenced to four months and one  day of arresto mayor, the  judgment appealed from is affirmed.  So ordered.

Arellano, C. J., Torres and Trent, JJ., concur.

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ON MOTION FOR REHEARING


MORELAND, J.:

This court in its written decision of this case did little, as appears therefrom, but quote  the salient features of  the opinion of the  trial court and very largely adopt it as the foundation for  the  decision.   While  that opinion of  the trial court did not go into the evidence in exhaustive detail, we  regarded it,  after a very thorough, painstaking and continued consideration of the proofs  presented in the record,  as a fair  and judicial expression of the real and substantial merits of the cause under all the  circumstances. There was some question in our mind, and we considered it in detail, as to the conclusiveness of the proof, held sufficient by the  trial court, relative to  the value  of certain articles destroyed in the fire; but it clearly appeared that, even if we found, which we eventually did not, that the court below had erred  in  this particular, the error affected so small a part of the property destroyed that its correction would in no sense alter the criminal penalty imposed.   There was also much consideration of the question whether or not the  defendants ought to be charged with the  aggravating circumstance of morada.  The  trial court had found that they should.  After  much  study and repeated discussion, we came to the conclusion that they should not be so charged. While we gave the most painstaking consideration to the evidence, we were much less perplexed in arriving at a conclusion as to the guilt of the accused than in arriving at a conclusion upon the two matters, among others, above referred to. We regarded, and still regard, the guilt  of the accused as painly proved.  We saw and see no way to escape that  conclusion.   The  more thorough  the study  of the proofs, the more  impossible it appears  to  arrive at any other result.

The learned counsel on this motion presents, in the course of his ingenious and able analysis of the evidence, various arguments attacking our decision.  We desire  to refer to them for a moment.  He  opens his argument with this admission:

"That the fire occurred and that the apparel and household furnishings were consumed, as alleged in the complaint and by the court, are facts not questioned.  It is also admitted that the record shows that in all probability the fire was occasioned by the  defendants; but it is  insisted that there is no creditable testimony whatsoever that defendants either criminally or intentionally caused the fire."

The whole argument of counsel is, by these admissions, confined  to the proposition  that the accused  set the fire accidentally and not intentionally; that they set it innocently and not criminally.

It is to be noted that these admissions are in open and direct contradiction to the testimony of  the appellant Balmori, who stated under oath, as a witness in his own behalf, that neither he nor Apostol was at any time whatever on the day in question in the room  where the fire occurred, nor did they on that day  see the woman who was within that room when the fire started, nor did they cause said fire either accidentally or intentionally, or in any manner whatsoever.   This  fact  might not  be, ordinarily, of very great importance; but when it is observed that the whole essence and soul of counsel's argument is the good faith, the lack of criminal intention,  the innocence  of mind,  of the  accused in causing the fire, this denial, in open conflict with every line of the evidence and with express admissions of counsel, should be given at least some significance.

Counsel further says:

"1. The sole question in this case is the single question of fact whether or not Agapita Rivera saw the accused intentionally, and in her presence,  without motive on their part or protest on her part, commit the act of incendiarism that she claims to have witnessed.  *   *  *   Hence the inquiry is: Did Agapita Rivera see the origin of the fire, or was her attention first attracted to it after the defendants had left the room?"  [The italics are his.]

In our opinion, this is not the "sole question" in this case. At most it is  only  one phase  of the evidence  in the case. It is at least an open question  whether the accused could not properly and legally be convicted without recurring to the testimony  of Agapita Rivera  at all.  We are inclined to think they could.  When  two  men  are  seen  running hastily down a pair of stairs leading from a burning room just  set on  fire, with no reason whatever for  such haste except to quit  the locality before the fire is  discovered and they apprehended; who, on hearing from the cries of inmates of the house and bystanders,  that the room was on  fire, instead  of halting  and  lending  assistance  to smother the flames, continue their flight; who, while  it is asserted  that they were running to reach a fire alarm box to call a company to the burning house,  and although one was apprehended' and arrested before he  accomplished his laudable purpose, the other was left entirely free to effectuate his design, but, nevertheless, did not send in an alarm or return to the burning house to assist the people in preventing its destruction, but, rather, maintained the advantage which the more vigorous pursuit of his comrade had given him and made good his escape; one of whom,  when  brought to trial, told  a story so at variance with all the facts and the evidence that counsel, on this motion, skilled in the analysis of fact and learned in  the law applicable thereto, found it necessary to repudiate it substantially in toto; when all these facts and circumstances concur and  combine, what is the  almost inevitable inference as to the responsibility of said persons for the fire  in  question?  And all  these  facts  were presented by witnesses other than Agapita Rivera.

It is clear, therefore, that  the  proposition set forth by counsel as  the only question in this case comes far short of being such.  It is simply one phase of the evidence which may be, according to the point of view, the main or merely the corroborative evidence  in the case.  When, to the facts above set forth as having been presented by witnesses other than Agapita Rivera, is added the corroborative evidence of the latter, where can a doubt of the sufficiency of  the proofs reside ?

These considerations, we believe, dispose of that part of counsel's argument in  which he says, referring to Agapita Rivera:

"If she did not see the fire until after the defendants left the room where it broke out, then the natural presumption, and the clear legal presumption, is that the fire, though probably occcasioned by an act of the defendants, was purely accidental.  The  mere fact that after  defendants left  the room where they and Agapita Rivera were a fire broke out does not of  itself tend to  prove,  or raise a presumption, that the defendants intentionally and criminally caused the conflagration."   [The  italics are his  own.]

This argument is without weight because it leaves wholly out of consideration perhaps the most important and possibly the very strongest evidence of the case, already referred to, namely,  the conduct  of the accused themselves. This argument  forgets entirely the fact that the accused were seen hastily running down the stairs leading from the room in  which a fire had just been started; that they gave every evidence of desiring to escape from that locality with the greatest possible dispatch; that while one was captured, charged  at the time with the commission of the crime,  the other effected fully his escape for the time, not staying either to call the assistance of the fire department or to aid in smothering the flames from which he was apparently fleeing. This argument forgets entirely that, from every line of the credible proof in the case, there springs the inevitable conclusion that the  accused were fleeing from something which they dreaded, and that that  something was the fire in  the room of  Petra Angeles.  Why flee if innocent?  This question is not fully  answered in this case by the statement that having caused the damage, even accidentally, under stress of the excitement and on the spur of the moment, their fear got the better of their judgment and they fled, though innocent. The proofs are all to the contrary.  It is very difficult indeed to believe that two innocent men, having  accidentally  set in operation an  agency which, if unchecked, would produce inevitably the destruction of a large amount of property and possibly, if not probably, the loss of human life, would flee from the scene where the destruction initiated by their acts was being wrought, not only without lending the slightest assistance to prevent the destruction of property, but without the smallest regard to the safety of  the women whom they left  alone in the burning room hemmed in by the flames which they had  created.  If innocent, they acted strangely at a moment when  real innocence would have called most loudly for vindication.  If  guiltless,  they did  the very thing that innocence rarely does, put on the trappings of guilt.  When persons are charged with  crime,  it is their present acts rather than their future words which lend color to their intentions.

Counsel, proceeding with his argument, attacks vigorously that portion of the testimony of Agapita Rivera in which she declares directly and positively that she saw the two accused set fire to certain wearing apparel and the hangings of the bed, asserting that the force of her direct statement is destroyed by her testimony given on  cross-examination, which testimony, he  says, seems to indicate that she  did not see the accused in the room until after  the fire was in progress.   His strictures upon her and her testimony, based upon  isolated and detached portions of her declaration, are, in our judgment, in  the  main,  not justified  under  a fair construction of her evidence as a  whole.   We must  not forget that the presence of the accused in the room in question before the fire started, and that said fire had its origin in acts performed by them, are facts admitted.  Her direct and positive statement that  the  accused  intentionally and deliberately set fire to the articles named is so thoroughly and richly corroborated by the conduct of the accused, themselves, as well as by the other evidence of the case, that, even though it be admitted, for the sake of argument, that such statement is somewhat weakened by the vigorous and searching cross-examination to  which  she was subjected  at  the hands of two different lawyers,  such  weakening does  not rise to the  importance asserted by the learned counsel.   If her direct  testimony  is weakened by cross-examination, a thing not  admitted  as having  occurred to any material extent, it is more than compensated by the other corroborative evidence of the case.

Moreover, touching further the  particular point under consideration, as  well as  the subject  of motive "to  which counsel often refers in his argument, it may not be impertinent to inquire why the  accused were in the room at  all. It is the uncontradicted proof of the case that they went to that house for a particular purpose; that each one,  in company with the woman of his choice, entered a room neither of  them  the  room where the fire  occurred; that having, as  would naturally be inferred, accomplished fully the purpose of their visit, they quitted their respective rooms and entered the hall on their way to the street.  Now, the question is, why did they enter the room in question ?  What was their purpose?  Counsel says, merely  to  light a cigarette.  In view of the fact that a cigarette may be lighted as well in a  hallway, as in a furnished room, that answer  is not sufficient.  How  can their purpose in entering that room be interpreted except by subsequent events?  No fact of evidence, no theory  of counsel, offers the  slightest explanation  of that purpose, of that entry,  other than that given  by  the  clear-speaking events that  followed.  Only imagination, that creature unchained by fact and unhampered by reality, can furnish a different explanation upon the evidence.

But, argues counsel, why should they  set the fire in the presence of Agapita Rivera, well knowing that their act was seen.  We do  not definitely  know.   Neither  did we know, in a case before us some months ago, why the accused, in apparent cold blood, killed three grown persons and a little babe in plain view of several persons.  We know only that he did it.   While motive  is generally of great importance in a criminal case,  it is not absolutely indispensable.  The evidence in the case relating to the actual commission of the crime  may be  so overwhelming that  the  question of motive may become secondary.

It is possible that the  accused  in this case  did not see Agapita Rivera in the room when  they set  the fire.  When they entered she was at the farther end of the room, quietly combing her hair, probably partially hidden by the bed and its  hangings.   Moreover,  the accused being in a  state of intoxication (it appears from the testimony of the accused Balmori that he was so  intoxicated that he  fell down while running from  the scene of the  fire, that his head was not clear  until sometime  the  next  day, and that the accused Apostol drank as often as he did) would not naturally have that keenness  of perception and clearness of  observation which normally would have characterized them.  The probabilities are that they knew of her  presence  for the first time when they heard her protest and  call  for assistance. The statement of counsel wherein  he  says:

"It seems to the writer manifestly apparent why this woman  (Agapita Rivera) contradicts herself.  The accident occurred.   The  effects were  destroyed.  Defendants  being the immediate  cause it mattered not to  the  women  of the house whether they had  intentionally or  accidentally occasioned the loss.  The women were resolute in holding them responsible and  thus reimbursing themselves for this loss. The simplest way was to present the situation in  such a light that the  public prosecutor would proceed against the defendants for  the crime of incendiarism.  But since, as they well knew, the mere fact of the occurrence of the fire did not prove  incendiarism, someone must testify to  the act of starting  the blaze intentionally.  This fell to  the  lot of Agapita  because she was in  the  room  where  the  blaze occurred  at  the  time  defendants  left the  room."

has little  force when it is observed that, from the uncontradicted evidence, Agapita denounced the accused on the spot as  being the intentional  authors of the fire.  That was the reason why they were pursued.  That was the reason why the police were called to take them into custody.   There was no time for the fabrication of the  elaborate conspiracy suggested by  counsel.  Moreover, none of the  women lost anything by the  fire  except Petra Angeles.

For these reasons, the motion for a rehearing  is denied.

Arellano, C. J., Mapa and Carson, JJ., concur.