The defendant in this case was convicted of the crime of homicide  in the  Court of First Instance  of Masbate and sentenced  to six years and one day of prision mayor,  to indemnify the heirs of the deceased in the sum of P500 and to pay the costs of the trial. The defendant appealed.

It  appears  that the accused,  being a  member of the municipal  board  of the municipality of Dimas-Alang, subprovince of Masbate, Sorsogon, on or about the 31st day of December, 1905, in the court-house of said municipality, assaulted  one  Pedro Abejero by kicking and striking him, thereby causing various contusions upon his body, particularly in a portion of the head just back of and below the left ear, and in the right side.  By reason  of these wounds the injured party was at once confined  to his bed and died in consequence of such injuries  on the third  day after receiving  them.

The proofs  of the parties  in this case  are in complete contradiction.

Camilo  Samson, a witness for the prosecution, testified that on a certain occasion he was called by the mother  of the injured party above mentioned and found him in bed, unable to  speak; that  he noticed  that the head  and neck just back of and below the left ear, near the throat, appeared to be discolored  to a  certain extent; that the ribs  upon the right  side appeared to be inflamed and that when he pressed his hand over that portion the  injured  person appeared to suffer pain.

Francisco Avenir, another witness for the prosecution, testified that during the month of January, 1906, the said deceased was  in the court-house  aforesaid and  that the accused asked him why he had not cleaned the  street  in front of the court-house;  that the deceased answered that he had not yet been able to do  so as he had been occupied in other duties; that thereupon the  accused struck him a blow with  his fist under the left ear which felled  him  to the floor;  that thereupon the accused with the heel of his shoe kicked him in the side below the ribs; that the deceased died on the 3d day of January, about three days after he had been thus assaulted.

Juan Morada, another witness for the prosecution, swore that the deceased died on the 3d day of January, 1906; that the witness was called to see him; that when he saw him he was not able to eat and was in a condition of great agony; that he saw and observed that the skin was discolored below the left ear; that the mother of the deceased showed the witness  a contusion  upon the right side  over the lower ribs; that the witness noticed at that time that the lower rib projected beyond the others and that it had a mark upon it about the size of a shoe heel.

The last  witness  for the  prosecution,  Julian Amante, declared that the accused  beat the deceased in the court-house  aforesaid; that he first struck him a blow with his fist below the ear which felled  the  deceased to  the floor; that thereupon the accused with the heel of his shoe kicked him in the  right side below  the  ribs; that this occurred on Monday, the 1st day of January, 1906.

The medical expert produced by  the prosecution,  Dr. Julio Ruiz, a licensed physician, who was at the time the sanitary inspector of the district  of  Sorsogon, testified as follows:

"Q.  State, from the experience  you have had  as a  physician, what would happen to a man if he should receive from another a blow with the fist  on  this part of the right side of the neck, below the ear, which blow had occasioned a bruise resulting in a swelling and  a discoloration of the part touched by the fist? - A.  A tumefaction of the tissues and a livid color or wound from a heavy blow in this region indicate a severe contusion of the tissues and, considering the organs  situated  partly in this region, the pathologic phenomena  that  may  be suffered can be  very  different. The tumefaction and the black color denote an extravasation of the blood on the inside.   As in  this region  there  are blood vessels and nerves  and the larynx,  which are very delicate organs, and this blow, as I  said before, was  undoubtedly the result of a  quarrel and must  have been  a violent one; in these conditions, there is not only extravasation of the blood, but also a traumatic inflammation may be produced in a part of the larynx, and this inflammation gives rise to  an oedema which  hinders respiration, for it  is through  this orifice that the air necessarily  must pass. The cerebral circulation will be retarded by the compression, and these nerves give life to the respiratory  movements also; so that various  phenomena can be produced in consequence of this contusion.   At all events, the symptoms shown by him were those of a serious injury.

"Q. Do you believe  that the individual  who received that blow could swallow food? - A. It would be very difficult to swallow food, much more so while the patient was in this condition of the development of the contusion; it would be very difficult to  take food, and especially liquids.

"Q. If this same individual  who received the blow  on the right side  of  the neck  had fallen  to the floor and received  a blow with  a shoe heel on  this part of the last right rib, or  on the right side,  by  a  man as strong as  is the accused - and  if,  as a  result of  this shoe-heel blow in the region  of the lower rib, this rib was crushed inward, what might be the result  or what might happen to  the patient? - A.  Such a  blow is  still more serious than  the first blow received on the side of the neck.  In this region is the liver.  It is supposed that this blow was produced by a hard body, and from the condition in which the accused probably was and considering that the blow was the result of a quarrel, it is to be supposed that  it was a very violent one. This blow could have produced a rent in the liver in the right lobule and an effusion of the bile, which  would give rise  to inflammations of the peritoneum, that is, to peritonitis.  In the first moment of this blow the individual must have fallen into a syncope through a traumatic shock, which is always produced and always shown in those heavy contusions of the  organs;  and  if the rib was fractured, the condition was more serious.

"Q. In your opinion, after all the contusions and  blows you have just  mentioned, could the  man  live? - A. The most prudent opinion is that the man could not have withstood the phenomena produced  by both blows.  They  in themselves,  considered  separately,  are  sufficient causes  to have produced death."

From the testimony  above  epitomized it appears established  with  sufficient conclusiveness  that  the death  of Abejero was caused by the injuries which are alleged  to have been inflicted by the accused.  As to whether or not such injuries  were actually sustained at the hands of the accused, we are unable  to say, after a careful examination of the evidence,  that the  conclusions of the court below in that  regard are not well founded in the proofs.  The witnesses upon that point are in direct contradiction, those for the  Government testifying one  way and those of the defense  the other.  Under such circumstances the credibility of the witnesses is, of course,  of the  utmost  importance. There being little on the face of the record from which that may  be judged, we  must rely  upon  the  judgment and discretion of the trial court who saw the witnesses in the act of testifying and judged of their relative truthfulness. Having  this in mind, we are satisfied that the conclusion of the court below upon the facts is fully justified by the evidence.

The objection to the conviction of the  defendant which is argued at greatest length by his attorney is founded upon the fact that the trial court adjourned the  trial  of the cause from  September, 1908, to the succeeding term of the court which was held in February, 1909.   Counsel for the defendant held this adjournment to be an abuse  of discretion.   In making  this adjournment of the trial, the court said:

"By reason of the gravity of the charges which are made against the accused, I am going to adjourn this cause until the next session of the  court in spite of the opposition  of the counsel for defendant.  In view of the fact that Julian Amante has not appeared in court, notwithstanding  that he was  duly subpoenaed,  and by reason  of  the fact  that the  witness Epifania Barruga  is  sick of fever,  and by reason of the fact that the fiscal does not know what the witnesses will testify to, and also by reason of the fact that it is  the first  time that this cause has been brought  on for trial, the cause may be adjourned for a term, especially in view  of the fact that the  accused  is admitted to bail."

Under the circumstances of the case, we do not  believe that the court below abused  its discretion in ordering  an adjournment of the cause.

The judgment of the court below is affirmed, with costs against the appellant.

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

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DISSENTING


TORRES, J.,

The writer, with  due respect  to  the decision   of  the majority, believes, however,  following the opinion  of  the Attorney-General, that the  special circumstance  of  article 11 of the Penal Code can not be taken into account in favor of the defendant,  and  that,  even if it be considered  as present,  it  is not  very marked, according to article  81, paragraph 5, of  the  code.   Hence, the  presence   of  the mitigating circumstance No.  3  of  article 9 of  the same code being the only one that may  be taken into account, it is my opinion that  the defendant should be  sentenced to twelve years and one day of reclusion temporal, with the accessory penalties of  article 59 of the Penal  Code, and to pay an  indemnity  and costs.