1. REASONABLE DOUBT. — When testimony of the witnesses for the prosecution, as in the present case, is not wholly credible and there remains a reasonable doubt as to the guilt of the accused, he must be acquitted.

The accused was charged with the crime of frustrated murder, in that on the night of April 30, 1907, in the town of Tiaong, Tayabas Province, he fired his revolver at close range at one Simeon Ona, with intent to kill, and failed to accomplish his purpose solely because of the inaccuracy of his aim. The trial court found that he did not fire the revolver at Ona with intent to kill, but that he did fire the revolver in the air with intent to intimidate Ona and others, and convicted him of the crime of unlawfully discharging a firearm as defined and penalized in article 408 of the Penal Code.

The accused admitted that he discharged his revolver in the air just outside of Ona’s house, but alleged that when he did so he was attempting, with the aid of two policemen, to capture a number of gamblers who had been playing prohibited games of chance in Ona’s house, and that on account of their number he thought it prudent to fire his revolver in the air, partly to frighten them and prevent them from offering concerted resistance to his small party, and partly to prevent them from attempting to escape by fight.

Ona, the complaining witness, testified that the shots were fired as a result of a quarrel he had with the accused. This witness swore that for several months prior to the night of the shooting the accused had illicit relations with a niece of his wife who lived with the witness; that the accused, suspecting that this woman was untrue to him, and that he, Ona, was conniving at her infidelity, threatened his life a few hours before the shooting; that, frightened by the threats of the accused, he went to a neighbor’s house, where he stayed until about 8 o’clock in the evening, when he heard a great noise in his house and a shot fired, which he afterwards learned that the accused had fired at his niece; that he, Ona, then ran to the house to aid his family, and met the accused at the door; that the accused there and then fired his revolver at him, and that the ball passed so close that he could hear the bullet whistling in the air as it passed his head.

The trial judge refused to believe the version of the incident as related by the accused and his witnesses, and accepted the testimony of the complaining witnesses and his wife as substantially true, except in so far as they testified that the accused, when he fired his pistol, pointed it at the woman at the first shot and at the complaining witness at the second.

We do not think that the evidence of record sustains the findings of the trial court beyond a reasonable doubt.

The testimony of the accused, who at the time when the pistol was fired was presidente of the municipality, and the testimony of his two witnesses, the policemen who swore that they accompanied the accused to Ona’s house, is consistent, straightforward, and so far as can be gathered from the record, not unworthy of credence. The trial court seems to have been of opinion that the story told by the accused and his witnesses was perhaps too consistent, in that it suggests the possibility that it might have been confabulated and rehearsed for the occasion. It is not impossible that in this the trial judge was right; but the accused and his witnesses underwent a somewhat searching cross-examination, and on a review of all their testimony, we think that, giving the accused the benefit of the doubt, we would not be justified in holding their testimony to be false beyond a reasonable doubt, unless the evidence introduced by the prosecution was conclusive to a degree.

The evidence of the prosecution consists of the testimony of the complaining witness and his wife, corroborated, as to the actual firing of the shot said to have been aimed at the complaining witness, by the somewhat improbable testimony of a neighbor and friend, who swore that when he heard the first shot he hastened to Ona’s house to see what was the trouble.

The statement of this late witness was not believed by the trial court on the only point of importance as to which he testified. He stated that he saw the accused point his revolver and fire at Ona, while they were within about a yard and a half of each other, but the court found from all the evidence that the accused fired his pistol in the air. Except as to this point, there was nothing else of importance in his testimony, and we agree with the trial court that, in any view of the case, his evidence in this regard cannot be believed.

The whole weight of the prosecution rests on the testimony of the complaining witness, and that of his wife. The trial judge states in his opinion that he thinks that Ona’s statements were "exaggerated and that he evidenced a desire to have the accused convicted." We think that there can be little doubt that some of the material statements of this witness are false and that there are reasons to suspect that in making his complaint he may have been actuated by a desire for revenge, or by the hope of getting rid of a municipal official whose activity in prosecuting gamblers was obnoxious to him.

Ona admitted that gambling was habitually indulged in at his house and that he had been arrested for that offense some five or six months prior to the night in question. The policemen testified that he had been arrested for gambling a number of times, and that he was known in the municipality as a professional gambler. Ona testified, nevertheless, that he had always been on the warmest terms of friendship and intimacy with the accused up to the evening of the night of the shooting. The warmth of friendship of a professional gambler for a municipal official, who was actively engaged in seeking out and prosecuting gamblers, may well be questioned.

The air of improbability which marks Ona’s story as to his whereabouts prior to the incident, his sworn statement that he heard the whistling of the bullet fired from a revolver within a yard and half of his head, and a number of minor inconsistencies in his testimony as developed on cross-examination, all tend to raise a doubt in our minds as to the truth of the principal facts related by him; and while the trial court seemed to give great weight to the fact that the was corroborated as to the principal facts by the testimony of his wife, we do not think that the testimony of the couple, taken together, is so convincing as to establish the falsity of the testimony of the accused and his witnesses beyond a reasonable doubt.

Under all the circumstances, we are somewhat at a loss to understand why the woman, with whom Ona charges the accused with having illicit relations, was not called to the witness stand, and why no attempt was made to call disinterested witnesses to testify as to the existence of these relations. Ona’s evidence on this point, if believed, would indicate that the facts in this regard were notorious and well known to many persons in the community, and if this testimony were true, and if his testimony as to his own friendly relations with the accused were true, it would seem that it would not have been difficult to call witnesses who could corroborate the testimony of a vindictive witness, whose vindictiveness raises a doubt as to the truth of his uncorroborated charges.

The judgment of conviction and the sentence imposed upon the appellant should be, and are hereby, reversed with the costs of this instance de oficio. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, Willard and Tracey, JJ., concur.