1. CRIMINAL LAW; EVIDENCE AS TO STATEMENTS OR ADMISSIONS BY CO DEFENDANTS. — Evidence as to extrajudicial acts done or as to statements or admissions made by one of several defendants in a criminal action is incompetent and inadmissible as to his codefendants unless it is first made to appear that such statements or admissions were made by him in the course of and in aid or execution of a conspiracy to commit the crime charged in the information, and that his codefendants were joint conspirators with him.

A Chinaman named Ong Jong Sing, was found dead in a room adjoining the tienda (store) of Francisco Yu Choyjon, of which he was in charge during the temporary absence of the owner, with a fatal wound in his head, evidently inflicted with a bolo, kris, or similar sharp-pointed weapon. On the morning after the night during which the crime must have been committed, an iron safe in the tienda was found unlocked and the owner of the tienda testified that on his return a few days afterwards there was missing from the safe some P500 in cash and jewelry valued at about P100. There were evidences of a considerable flow of blood from the wound, and traces of blood were found in the tienda, the lot in which it stood, and the road leading away from the tienda in the direction of the principal street of the town of Agusan, near which the tienda is located.

Filomeno Cassion, Sabino Apduhan, Jacinto Olano, and the female defendant Asuncion Calo were charged with the commission of the crime, and after some delay were brought to trial, as a result of which Cassion and Apduhan were convicted of the crime of robo con homicidio, Cassion being sentenced to death and Apduhan to life imprisonment, while Olano and the female defendant were acquitted.

Accepting as true the testimony of the witnesses for the prosecution, and rejecting as false the testimony of the witnesses for the defense, the following is a summary of all the facts disclosed by the evidence of record:chanrob1es virtual 1aw library

The discovery of the dead body and of the traces of blood in and about the tienda, and the disappearance of money and jewelry therefrom as above set forth; the finding, a few days after the commission of the crime, in a house occupied by Apduhan, Olano and others of a trunk, admittedly the property of Apduhan, which contained two bottles of perfume and six heelplates, the bottles of perfume being similar to others on sale in the Chinese tienda, and the six heelplates being similar to others found attached to a cardboard, which contained vacant spaces from which a number of these heelplates had been removed; the explanations of Apduhan (made at the time when the trunk was opened) as to the presence of these articles in his trunk, he claiming that he had bought the heelplates from a Chinaman named Janhoy who was not called at the trial, and that he had bought the perfume from some peddlers or traveling merchants from Bohol; the discovery in the same house of a shirt, such as is worn by the Constabulary, and admittedly the property of the defendant Olano, with stains of human blood on the front; the discovery of stains on the stairs of this house which looked like blood; the discovery in the same house of a kris, admittedly the property of the defendant Cassion, which might have inflicted the fatal wound; that the defendants Apduhan and Olano were seen together by one witness not far from the tienda, between 10 and 11 o’clock on the night of the murder, and that a little earlier Apduhan talked with two witnesses, at a point not far distant, from whom he endeavored to buy some fish; that Apduhan and Olano were tenants or workmen for the defendant Cassion, and that the house in which they lived was owned by him; that they are both ignorant men, and were largely dependent upon him for their living; that Cassion was at one time a justice of the peace and at another time municipal president of the town of Agusan; that the female defendant was his querida or concubine; that he not infrequently visited her at the room in which she lived; that he was seen in company with this woman between 10 and 11 o’clock of the night of the murder standing near the Chinese tienda; that footprints, found close by the tienda on the morning after the crime, because of their relative size, gave indications of having been made by a man and a woman; that Cassion and the woman left her house together about 10 p. m. of the night of the murder and did not return until about 2 a. m., and that as he parted from her at the door he was heard to say to her "Pronto, Ating" (quick, Ating), and later "Ating, lo que pase, no cuente" (Ating, whatever happens, don’t tell); that on the following morning a fresh bloodstain was found on the stairs of the house where the woman lived, by one of the owners of the house, and by her washed or cleaned away; that three or four days afterwards this woman defendant gave two sayas, a camison (wearing apparel), and two pillowcases to one of the women of the house to be washed, explaining that the bloodstains were the result of menstruation, and giving directions with the view to the avoidance of unnecessary publicity; that stains, apparently bloodstains, were found on the stairs of Cassion’s house some little time after the commission of the crime, when suspicion had been directed against him; that he had had at least one opportunity to watch the Chinese owner of the tienda open his safe; that he owed the store some P50 or P60; that on two or three occasions, not long after the commission of the crime, this defendant lost sums ranging from P30 to P40 in gambling; that on the morning after the commission of the crime he was seen wearing a freshly pressed suit of white clothes; and finally, that the defendant Olano, in a written statement voluntarily made at the preliminary trial, testified that on the night of the crime, his codefendant Apduhan left the house in which they lived late in the evening, wearing his (Olano’s) shirt and carrying with him the kris which was found later in the house, and did not return until about 4 a. m., and that before he left the house he told him (Olano) that their master, Cassion, had directed them both to come to him, bringing with them the kris and another weapon, but that he (Olano) had refused to go because he was sick.

The defense put the defendant Olano on the witness stand to deny the truth of his statement made before the justice of the peace, which he claimed v as false and made as a result of threats and promises by the police officers; witnesses were also called who testified that none of the defend- ants left their respective houses on the night in question; evidence was also introduced tending to establish the fact that the woman who testified as to the return of Cassion and the woman defendant late at night and the parting warning of Cassion on that occasion, was the querida or concubine of the police officer who secured the evidence in the case, while the woman who testified as to the fresh stain of blood on the stairs of the woman defendant’s house was the sister of this police officer’s querida.

We are all of the opinion that this evidence, while it might be sufficient to direct the finger of suspicion toward all of the defendants in a preliminary investigation before a justice of the peace, is wholly insufficient to sustain a solemn judgment of a trial court, holding them guilty, beyond a reasonable doubt, of the capital crime with which they are charged in the information.

It is not necessary to review the evidence in relation to the two defendants who were discharged in the court below.

The only competent evidence of record against the defendant Apduhan relates to the discovery in his trunk of the perfume and the iron heelplates. Of course, the evidence as to the alleged extrajudicial statements and admissions of his codefendant Olano was wholly incompetent as to Apduhan, in the absence of proof of a conspiracy between them for the commission of the crime, in the course of which these statements or admissions were made. There is no evidence in the record tending to establish the existence of such a conspiracy, and in truth there is no evidence whatever tending in any wise to implicate this defendant, directly or indirectly, other than the discovery of the perfume and heelplates in his trunk. While his explanations as to the manner in which he came into possession of these articles is not wholly satisfactory, no evidence was introduced to rebut his account of the purchase of these articles, and there is nothing inherently impossible or even improbable in his claim that he had purchased the heelplates from the Chinaman whose name he mentioned, or that he purchased the perfume from peddlers or merchants from Bohol. While it is true that similar articles were on sale in the tienda where the robbery took place, we are of opinion that the discovery of these articles in the possession of Apduhan does not satisfactorily establish his guilty complicity in the robbery, the proof failing to establish conclusively that they were among the articles stolen when the robbery was committed. Heelplates and perfume of the kind found in Apduhan’s trunk might well have been purchased in any one of dozens of stores in the vicinity carrying them in stock. There is nothing whatever to indicate that merchandise of this sort was sold exclusively in the store where the murder took place.

As in the case of Apduhan, so in the case of Cassion, we are precluded from taking into consideration the evidence as to the extrajudicial statements and admissions of his codefendant Olano. Without that evidence, it is impossible to sustain a judgment of conviction as to him. The evidence upon which an attempt is made to show that on the night of the murder he and his concubine were out together until a late hour, and that during that night they had walked near by the store where the robbery took place, and that on her return the clothes of the woman were so saturated with blood that it dripped on the stairs of the house in which she slept is not wholly satisfactory, and even if it were accepted as true, it would fall far short of conclusively establishing his guilt. At most it would tend to indicate that the woman was in some way implicated, and that he had been in her company both before and after the crime was committed. The evidence to the effect that on the day following the murder, he appeared in a clean suit of clothes; that he lost some money in gambling some little time after the commission of the crime; that he comforted his coaccused when they were arrested by telling them that innocent men need have no fear of the law and advised them to keep their own counsel; that a kris or bolo, belonging to him, was found in the house of his coaccused, who were workmen employed by him; that a spot of dried blood was found on the stairs of his house some considerable time after the murder, and a mass of similar evidence introduced at the trial has no real significance in the absence of proof of a conspiracy between himself and his coaccused to commit the crime, or of evidence tending directly to connect him with it. Some of these facts, if satisfactorily proven, might have some value in corroboration of other evidence directly connecting this accused with the commission of the crime, but taken by themselves they are wholly insufficient to sustain a finding of his guilt.

We conclude, therefore, that the judgment entered in the court below, convicting and sentencing these appellants should be reversed, with the costs of this instance de officio, and that they should be acquitted of the crime of which they are charged in the information and set at liberty forthwith. So ordered.

Arellano, C.J., Torres, Johnson, Moreland, and Araullo, JJ., concur.