1. HOMICIDE; SELF-DEFENSE. — When it is proven that the deceased had for some time maintained illicit relations with the accused, being accustomed to pass the night in her house, it cannot be believed that it was necessary for him to resort to violence, and therefore a statement alleging such violence is improbable and inadmissible as a basis for an exemption from liability, upon the ground that the accused in committing the homicide acted in self-defense.

2. ID.; ID.; NOCTURNITY AS A CIRCUMSTANCE. — The crime having been committed by the owner of the house against the person who had by mutual consent frequented the house, and at a time when they were both in bed, the circumstance of nocturnity cannot be considered because the nighttime was not purposely selected by the accused.

This is an appeal by the defendant from the judgment rendered on December 20, 1911, by the Honorable Adolph Wislizenus, judge, whereby he sentenced her to the penalty of fourteen years eight months and one day of reclusion temporal, to indemnify the heirs of the deceased in the sum of P1,000, without subsidiary imprisonment in case of insolvency, and to pay the costs of the trial.

Between 3 and 4 o’clock on the morning of March 25, 1910, Luisa Potestas presented herself before Carmelo Ginoo, lieutenant of the barrio of Dalao, of the pueblo of Barili, Island of Cebu, and reported to him that some trouble had occurred in her house, that she had seriously wounded the man Bonifacio Villaflor, alias Boni, with the dagger she was carrying and which she then and there delivered to the said lieutenant. The latter, therefore, accompanied by a policeman, immediately went to the defendant’s house where he found the corpse of the man referred to. It was lying face-down on a mat with the head on the floor, and bore a wound in the left side between the clavicle and the neck. Beside the body was a sheet which had an opening produced apparently by a cutting instrument. The said lieutenant in his sworn testimony stated: that the defendant and Honorio Algar had been living together conjugally for more than ten years and had seven children, two of whom he found asleep inside the said house and near the place where the corpse was lying; that, on that occasion, Honorio Algar was out of the house and absent from the town; that, at the time of the occurrence, Luisa Potestas was enceinte; that it was known that she was about in the seventh month of pregnancy for which, she stated, her paramour was responsible; that the deceased’s father, Andres Villaflor, said in his sworn statement that he knew that his son Bonifacio used to go frequently to the house of Luisa Potestas, taking advantage of the absences of her paramour, Honorio Algar, who was in the habit of absenting himself from his home for purposes of business; that Bonifacio maintained amorous relations with the defendant as his mistress, as she would frequently look for him and he used to sleep in the house of the crime whenever Honorio Algar was absent therefrom, and that he did not know why the defendant killed his son. Luisa Potestas, in her sworn statement, confessed that it was she who stabbed the deceased and caused his death for the reason she alleged.

An information was filed in the Court of First Instance by the provincial fiscal on September 13, 1911, charging Luisa Potestas with the crime of murder, and, upon the institution of this case, the judge pronounced the sentence that is the subject of this appeal.

From the facts aforestated it is concluded that Bonifacio Villaflor, was violently killed while he was in Luisa Potestas’ bed, inside of the house in which she lived. The motive which prompted the killing could not be ascertained. For some time prior to the crime the deceased and the defendant had been on very intimate terms, as Villaflor, taking advantage of the absences of Honorio Algar, the old and permanent paramour of the woman Potestas, used to frequent the latter’s house and there pass the night with her. Although the defendant confessed that she inflicted upon Villaflor the only wound which he received, one between the neck and the clavicle, yet she alleged a certain defense which will be considered. There was no eyewitness to the commission of the crime, nor is it shown by the record that the assaulted party, Villaflor, was asleep when he received the mortal wound which caused his death. We therefore accept the opinion formed by the trial judge in classifying the crime as homicide, pursuant to article 404 of the Penal Code. It was not proven at the trial that there was present any of the qualifying circumstances of murder such as determine the imposition of a severer penalty.

The defendant pleaded not guilty and alleged that while asleep in her house on the night aforementioned, the door and windows having been closed and fastened, she awoke on feeling that a man touching her head and laying himself on top of her for the purpose of abusing her; that while trying to prevent him from doing so, she chanced to catch hold of the hilt of a weapon which the man on top of her was carrying in his belt, whereupon, while she was still endeavoring to prevent her aggressor from carrying out his purpose, in spite of the fact that with one hand he was covering her mouth and with the other trying to raise her skirt, and as a result of the efforts she made to free herself, the weapon, the hilt of which she was holding in her right hand, came out of its scabbard and pierced her aggressor’s body, although she did not then know that she in turn also got up and went to the window, from which she jumped out, whereupon she noticed that the man was panting and fell to the floor; and that immediately thereafter she left the place to present herself to the lieutenant of the barrio to whom she delivered the weapon she carried.

In view of the evidence presented, and notwithstanding that there was no eyewitness to the occurrence, the defendant’s testimony is in all respects improbable and incredible, and, therefore, can support no finding of exemption from responsibility on the ground that she acted in legitimate defense of her honor; nor can it be admitted, as she alleged, that she involuntarily assaulted the deceased with the dagger.

The evidence in fact shows that the lieutenant of the barrio, Carmelo Ginoo, and the deceased’s father, Andres Villaflor, upon visiting the house of the crime, found that the entrance door thereof was closed and barred and that all its windows were also closed, except one through which the policeman, Felicio Ibo, entered, by order of the lieutenant, for the purpose of opening the said door; that, upon examining the clothes in which the body was dressed, no disorder was noticed in them and it was observed that the trousers were buttoned up; that the body, from the feet to the shoulders, was lying stretched out on a mat, and the head was off the mat and resting on the bare floor; that they found a pillow with signs of two depressions, one beside the other, apparently produced by the weight of two heads lying on it, and a sheet stained with blood, with a hole in it, apparently cut by the dagger presented by the defendant of the barrio lieutenant; and that the wound borne by the body was situated between the neck and the left clavicle; from all of which testimony it is concluded, taking into consideration the defendant’s statement that she held the weapon in her right hand, that she inflicted the wound at a time when the deceased was at her side; that there was no attempted rape, an indefensible allegation, because it was proven that the deceased had for some time past been maintaining unlawful relations with her and therefore, as he frequented her house was in habit of sleeping there with her on the occasions of the absence of her other paramour, he had no need of exercising against her either force or violence, for they were accustomed to cohabit of their own free will and accord. The last time that the deceased passed the night in the said house, the defendant, his mistress, inflicted upon a fatal wound and thus committed, at least, the crime of homicide, as the defendant, who was the aggressor, made use, not of a weapon carried by the deceased, but one of which she had and which, two days before, was seen by the victim’s father in the possession of her brother, Esteban Potestas.

It can not be believed that the commission of the crime was preceded by a struggle or even by any dispute between the assailant and her victim, because the children, who were sleeping in the same house and at a short distance from the place where the body was found, were still asleep when the policeman, the barrio lieutenant, and the deceased’s father entered the building.

Although the criminal act was perpetrated at night, the circumstance of nocturnity is not to be taken into account, because the record does not show that the cover of darkness was purposely sought, and because the crime was committed upon a person who used to frequent the house with the consent of the owner thereof. There is no aggravating circumstance to consider, and no extenuating one, except that prescribed in article 11 of the Penal Code, amended by Act No. 2142, on account of the ignorance and lack of education of the defendant, and, therefore, the penalty of homicide should be imposed in its medium degree.

For the foregoing reasons, it is proper, in our opinion, to affirm the judgment appealed from; provided, however, that the defendant, Luisa Potestas, shall be sentenced to the penalty of only twelve years and one day of reclusion temporal, to the accessories of article 59, and to pay the indemnity and costs mentioned in the said judgment, together with the cost of this instance. So ordered.

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