1. CRIMINAL LAW AND PROCEDURE; NEW TRIAL. — The court below misconstrued the order of this court granting new trial and the exclusion of certain testimony for the appellant was erroneous. When this court remands a criminal case for new trial without restriction, the previous adjudication is wiped out and the case should proceed de novo and be conducted, as far as practicable, as if there had been no previous trial. (U. S. v. Dacir, 26 Phil., 503, 517.)

2. ID.; ID. — But the order granting the new trial may restrict the same to particular issues or particular parties, or permit both the prosecution and the defense to offer such further and additional evidence as they may desire to submit without the necessity of retaking the evidence already in the record. (U. S. v. Singuimuto, Phil., 176, 183.)

3. ID,; ID. — The order of the court granting the motion for new trial and remanding the record to the court below with instruction to take the evidence of F. T. and "such other and additional evidence as the defense and the prosecution may care to offer which in the opinion of the court may be relevant", was not intended to restrict the evidence on the new trial to such as in the opinion of the lower court might be "newly discovered." The case was reopened for the prosecution as well as for the defense. Such restriction as the court below read into that order might render rebuttal evidence impossible for either side.

4. ID.; ROBBERY. — In the light of the new evidence before the court the conclusion was reached that robbery was the motive for the assault on appellant’s husband, and that the Government’s hypothesis that said defendant hired thugs to assassinate her husband simultaneously with the robbery had not been proven beyond a reasonable doubt. That robbery was the motive was evidenced by fact that a robbery was committed. Res ipsa loquitur.

5. ID.; CONFESSIONS. — Appellant’s codefendants, in their alleged confessions, stated that she hired them for P200 to kill her husband. Said confessions, competent as they are against the confessors, are inadmissible against the appellant. They are no part of the res gestae.

As this is the second appeal of this case, a brief review of the proceedings leading up to the first appeal and the decision thereof will be pertinent.

On March 26, 1930, an information was filed in the Court of First Instance of the City of Manila, charging that Antonio Ubaldo, Felix Tuazon, Agapito Toreno, Elpidio Gaspay and Remedios Avelino de Linao conspired together to murder Joaquin Linao, the husband of Remedios Avelino, and feloniously assaulted and wounded him about midnight on the 24th day of March 1930. As Joaquin Linao survived, the information charged Remedios de Linao with frustrated parricide as follows:jgc:chanrobles.com.ph

"That at about midnight of the 24th day of March, 1930, in the City of Manila, Philippine Islands, the accused Remedios Avelino de Linao, then being the lawful wife of one Joaquin Linao, conspiring and confederating with her four coaccused persons who were fully aware of the existence of said marital relation, and all of said accused helping one another, did then and there willfully, unlawfully, feloniously, and with intent to kill, taking advantage of the cover of darkness which they purposely sought therefor, with evident premeditation and for a price or promise of reward, treacherously assault, beat, and wound the said Joaquin Linao at his dwelling at No. 145 Jesus Street, in said city, by then and there strangling him and stabbing him on a vital part of the chest and other parts of the body while he was asleep in his said dwelling, thereby performing all acts of execution which would produce the death of said Joaquin Linao as a consequence but which, nevertheless, did not produce it by reason of causes independent of the will of said accused persons, to wit, the timely and effective intervention of medical assistance.

"Contrary to law."cralaw virtua1aw library

Ubaldo and Tuazon pleaded guilty and were sentenced to twelve years and one day of cadena temporal for frustrated murder. The judgment was affirmed by this court (55 Phil., 94). Toreno, on a separate trial, was also found guilty of attempted murder and sentenced to ten years of presidio mayor. This judgment was also affirmed by this court (G. R. No. 33909). 1 Gaspay was acquitted.

On her plea of not guilty, Remedios de Linao was separately tried and found guilty of the crime of attempted parricide. She was sentenced to twelve years of prision mayor. The judgment was affirmed by this court on March 10, 1931 (G. R. No. 33909). 2

On December 26, 1931, this court granted the motion of the appellant Remedios de Linao for a new trial as follows:jgc:chanrobles.com.ph

"The court having regularly acquired jurisdiction for new trial of the above-entitled cause submitted by both parties for decision, after consideration thereof by the court upon the record, its decision and order for judgment having been filed on the 16th day of December, A. D. nineteen hundred and thirty-one;

"By virtue thereof it is hereby adjudged and decreed that the motion for reconsideration and the motion for rehearing are denied, and the motion for a new trial granted; and the record remanded to the court below, with instructions to reopen the case to take the evidence of the affiant Felix Tuazon in support of the motion for a new trial, and such other and additional evidence as the defense and prosecution may care to offer which in the opinion of the court may be relevant."cralaw virtua1aw library

As a result of the new trial, the same judge again found the appellant guilty as charged, and she now appeals making the following additional assignments of error:jgc:chanrobles.com.ph

"I. The lower court erred in giving credit to the testimony of Bonifacio Abad, chauffeur of garage car No. G-1017, to the effect that he was an unidentified woman standing on the second flight from the top of the stairway leading to the ’azotea’ of the house of the defendant waving her hand, notwithstanding the physical impossibility for Bonifacio Abad to have seen that place at that time of the night, and the report of the government Weather Bureau (Exhibit 100) to the effect that the night on March 24, 1930, was moonless and dark.

"II. The lower court erred in disregarding entirely the unbiased testimony of Gavino San Juan who was the first person in the neighborhood who responded to the call for aid of the offended party, Joaquin Linao.

"III. The lower court erred in not giving credit to the expert opinion of Professor Jose del Rosario, chemist and handwriting expert, to the effect that Exhibit J is not a part of Exhibit J-1 and by substituting therefor its opinion and personal appreciation.

"IV. The lower court erred in not finding that the intention and real motive of Antonio Ubaldo, Felix Tuazon and Agapito Toreno in entering the house of the offended party, Joaquin Linao, was robbery.

"V. The lower court erred in rejecting the testimony of Carmen de Luna, Ildefonsa Amor de Santuico and Angel Linao on the ground that their testimony did not constitute newly discovered evidence.

"VI. The lower court erred in not giving any credit to the testimony of the defendant and appellant, Remedios Avelino de Linao, and in considering her testimony as a last minute attempt to escape criminal responsibility.

"VII. The lower court erred in not allowing the offended party, Joaquin Linao, to testify as witness in the new trial on the ground that this his testimony would not constitute newly discovered evidence.

"VIII. The lower court erred in not acquitting the defendant and appellant of the crime charged."cralaw virtua1aw library

Referring to the fifth and seventh errors assigned above, it appears that the lower court, upon objection of the prosecution, refused to admit the testimony of Joaquin Linao, Carmen de Luna, Ildefonsa Amor de Santuico and Angel Linao, on the ground that their testimony would not constitute newly discovered evidence (pp. 134, 154, 155, t.s.n.) . It appears also that other evidence, which counsel for the accused thought important, was excluded by the court on the same ground (e.g. page 116, t.s.n.) .

The court below misconstrued the order of this court granting new trial and the above-mentioned exclusions were erroneous. When this court remands a criminal case for new trial without restriction, the previous adjudication is wiped out and the case should proceed de novo and be conducted, as far as practicable, as if there had been no previous trial. (U. S. v. Dacir, 26 Phil., 503, 517.) But the order granting the new trial may restrict the same to particular issues or particular parties, or permit both the prosecution and the defense to offer such further and additional evidence as they may desire to submit without the necessity of retaking the evidence already in the record. (U. S. v. Singuimuto, 3 Phil., 176, 183.) The order of this court of December 16, 1931, 3 granting the motion for new trial and remanding the record to the court below with instructions to take the evidence of Felix Tuazon and "such other and additional evidence as the defense and the prosecution may care to offer which in the opinion of the court may be relevant," was not intended to restrict the evidence on the new trial to such as in the opinion of the lower court may be newly discovered evidence. In other words, the court below was not warranted in substituting for the word "relevant" the words "newly discovered." This is the more apparent because the case was reopened for the prosecution as well as the defense. Such a restriction as the court below read into our order might render rebuttal evidence impossible for either side. The evidence thus erroneously rejected — specially the evidence o the appellant’s husband, Joaquin Linao — was doubtless material and important to the defense. But it is not necessary to sustain the errors assigned by the appellant in this respect in view of the other conclusions we have reached on this appeal.

The evidence presented to us on this appeal makes out a very different case from that presented to us on the first appeal as relates to the accused Remedios de Linao. At the first trial the appellant was not called and did not testify as a witness. In our decision promulgated on March 10, 1931, we indicated a number of circumstances which were not denied or explained by the accused, and we said:jgc:chanrobles.com.ph

"It must be conceded that no one of the foregoing links in the chain of circumstantial evidence, standing alone and within itself, is sufficient to sustain a conviction. Even so when all of these respective links of sworn testimony of eyewitnesses are forged into one chain, no one of which are denied, except by inference or presumption, a strong case of circumstantial evidence is made out against the appellant."cralaw virtua1aw library

At the new trial which is now under review on this appeal, the defense introduced nine witnesses (including the appellant) and the prosecution, one in rebuttal. The evidence offered by the defense on the new trial, besides supplementing that given at the first trial, was intended to explain the circumstantial evidence which this court, in its previous opinion, had mentioned as pointing to the guilt of the appellant; and this testimony may be summarized as follows:chanrob1es virtual 1aw library

Joaquin Gallego, an employee of the Weather Bureau, testified that at the time the crime in question was perpetrated on the night of March 24, 1930, there was no moon; that the moon did not rise until 2.41 a. m. The object of this testimony was doubtless to impeach the Government’s witness, Abad, who had testified at the original trial as follows:jgc:chanrobles.com.ph

"P.